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Subject: TRANSCRIPT - 8/01/95 - 325k
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LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 1, 1995
9:05 A.M.
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
APPEARANCES:
(APPEARANCES AS HERETOFORE NOTED,
ARTHUR WALSH, DEPUTY CITY ATTORNEY,
APPEARING ON BEHALF OF MS. KESTLER.)
(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE
M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON
MATTER.
MR. SIMPSON IS PRESENT BEFORE THE COURT WITH HIS
COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. UELMEN, MR. BLASIER, MR.
NEUFELD.
THE PEOPLE ARE REPRESENTED BY MISS CLARK, MR.
GOLDBERG, MR. DARDEN.
THE JURY IS NOT PRESENT.
AND THE JURY IS UP IN THE HOLDING LOUNGE UPSTAIRS AND
I RECOLLECT THAT I SAW MICHELE KESTLER THIS MORNING COME IN WITH
A CITY ATTORNEY.
MR. GOLDBERG: SHE IS OVER HERE.
MR. COCHRAN: YOUR HONOR, MAY I ADDRESS THE COURT BEFORE
YOU START?
THE COURT: ALL RIGHT. MR. COCHRAN.
MR. COCHRAN: YES, THANK YOU.
GOOD MORNING, JUDGE ITO.
THE COURT: GOOD MORNING, SIR.
MR. COCHRAN: YOUR HONOR, ONE MATTER I WANTED TO BRING TO
THE COURT'S ATTENTION AND PERHAPS GET SOME CLARIFICATION.
YESTERDAY THE COURT ASKED MISS CLARK WHETHER OR NOT
SHE COULD ESTABLISH A FOUNDATION, AS I RECALL IT, FOR SOME
ALLEGED VIDEOS OF OUR CLIENT WITH GLOVES WHICH WE HAD SEEN IN THE
PAST AND MISS CLARK SMILED AT YOUR HONOR AND SAID "ABSOLUTELY."
WE ARE INFORMED THAT YESTERDAY AFTER COURT SUSAN
CHILDS OF THE DISTRICT ATTORNEY'S OFFICE CALLED VARIOUS MEMBERS
OF THE MEDIA AND SAID MISS CLARK HAD BEEN MISQUOTED OR HAD BEEN
MISUNDERSTOOD REGARDING THEIR ABILITY TO LAY A FOUNDATION
REGARDING THESE ITEMS.
AND AS AN OFFICER OF THE COURT I'M JUST TRYING TO GET
A CLARIFICATION OF WHAT IS TRUE AND WHAT WAS MEANT BY WHAT MISS
CLARK SAID.
IF THERE IS SOME MISUNDERSTANDING, WE HAVE A RIGHT TO
KNOW THAT AND WE WANT TO KNOW EXACTLY, AND YOU HAVE A RIGHT
OBVIOUSLY TO KNOW WHAT WAS MEANT.
IF THEY ARE BACKING UP -- IF YOU READ THE L.A. TIMES
TODAY YOU WILL SEE SOME MENTION OF THAT I THINK -- FORGIVE ME. I
FORGOT WHO I WAS TALKING TO.
THE COURT: IT IS NOT OUT OF DISRESPECT FOR THE L.A. TIMES,
BUT I FOUND THAT IT IS NOT HELPFUL FOR ME TO READ NEWS MEDIA
REPORTS OF THIS CASE BECAUSE I DON'T WANT TO BE INFLUENCED BY
ANYTHING.
MR. COCHRAN: I UNDERSTAND, YOUR HONOR. CERTAINLY.
WE SHARE THAT VIEW ON OCCASION OURSELVES.
YOUR HONOR, BUT AT ANY RATE, I RISE TO ASK FOR A
CLARIFICATION OF WHETHER MISS CLARK IS SAYING SHE CAN LAY A
FOUNDATION THAT THESE GLOVES ARE SIMILAR? ARE THESE THE EXACT
SAME GLOVES?
THE INFORMATION WE GOT, AND MUCH OF THE MEDIA WELL,
THESE ARE GOING TO BE THE SAME GLOVES AND WE KNOW THAT IS NOT
TRUE, SO I THINK WE SHOULD HAVE SOME CLARIFICATION OF THAT AND I
WANTED TO DO THAT EARLY ON.
THE COURT: GOOD MORNING, MISS CLARK.
MS. CLARK: GOOD MORNING.
I DON'T TRY MY CASE IN THE PRESS AND I DON'T READ THE
PAPERS TO SEE HOW I SHOULD RESPOND TO COUNSEL IN COURT.
I THINK IT WAS VERY CLEAR TO THE COURT WHAT I SAID
AND THAT IS ALL THAT MATTERS.
WHAT THE L.A. TIMES THINKS I SAID, OR ANY OTHER
REPORTER, MAKES NO DIFFERENCE TO ME.
THE COURT UNDERSTOOD ME AND THE COURT QUESTIONED US
AT SIDE BAR AND I DON'T THINK THERE IS ANY MISUNDERSTANDING
BETWEEN THE COURT AND MYSELF OR COUNSEL AND I DON'T THINK ANY
FURTHER CLARIFICATION IS REQUIRED.
THE COURT: WE DID DISCUSS THIS MATTER TWICE, ONCE IN OPEN
COURT AND ONCE AT THE SIDE BAR, AND AT THE SIDE BAR MY
RECOLLECTION WAS THAT WE DISCUSSED THE NATURE OF THE STITCHING
AND A FEW OTHER --
MR. COCHRAN: IF I MAY --
MS. CLARK: MAY I ADD ONE MORE THING?
THE COURT: YES.
MS. CLARK: JUST A MINUTE.
THE COURT: YES.
MS. CLARK: ONE MORE THING IS THAT WHETHER OR NOT COUNSEL
PUTS IN THE GLOVE DRYING EXPERIMENT, THE PEOPLE'S POSITION THAT
THOSE GLOVES AND THOSE PHOTOGRAPHS -- EXCUSE ME -- OF PHOTOGRAPHS
OF MR. SIMPSON WEARING THOSE GLOVES WILL BE RELEVANT ON REBUTTAL,
REGARDLESS OF WHAT THE DEFENSE DOES WITH RESPECT TO EXPERIMENTS
OR NOT, BECAUSE THEY ARE RELEVANT TO DISPROVE THE CONSPIRACY
THEORY.
THERE ARE MANY REASONS WHY THOSE GLOVE PHOTOGRAPHS
WILL COME IN IN REBUTTAL, WE ALSO BELIEVE, REGARDLESS OF WHETHER
OR NOT THEY COME IN DURING THE DEFENSE CASE.
THERE WAS SIMPLY ONE CHANCE TO PUT THEM IN DURING THE
DEFENSE CASE. THERE MAY BE OTHERS, BUT IF THERE ARE NOT, ON
REBUTTAL TO REFUTE THE CONSPIRACY THEME AND TO REFUTE THE
PLANTING THEME THAT THE DEFENSE HAS THROUGHOUT CARRIED IN THIS
CASE, I THINK --
THE COURT: SO I TAKE IT THE BOTTOM LINE, MISS CLARK, IS
THAT YOU STAND BY YOUR STATEMENTS ON THE RECORD OF YESTERDAY?
MS. CLARK: YES, YOUR HONOR, I DO.
THE COURT: ALL RIGHT.
MR. COCHRAN: THAT IS FINE THEN, BECAUSE THE ONLY THING I
WANTED TO POINT OUT, WHEN SUSAN CHILDS WHO REPRESENTS THAT OFFICE
MAKES CALLS SAYING SHE WAS MISQUOTED, I THINK WE HAVE A RIGHT TO
INQUIRE UPON THAT AND THAT IS ALL WE HAVE DONE, YOUR HONOR.
THE COURT: I UNDERSTAND THAT.
MR. COCHRAN: WE VIGOROUSLY DISPUTE THAT. THEY WILL NEVER
BE ABLE TO PROVE THESE GLOVES -- THAT OUR CLIENT WORE THOSE
GLOVES AND YOU WILL SEE.
AND THE LAST THING I WOULD LIKE TO SAY IS THAT WE
HAVE OPENED NO DOORS ON THIS.
IF THEY HAD THIS INFORMATION, JUDGE, THEY WOULD HAVE
PUT IT IN IN THEIR CASE IN CHIEF AND THEY DIDN'T AND WE WILL
VIGOROUSLY OPPOSE ANY ATTEMPT ON REBUTTAL AT THAT TIME.
THE COURT: ALL RIGHT.
JUST FOR COUNSEL'S INFORMATION, LATE YESTERDAY I
RECEIVED FROM THE FBI A PACKAGE OF PHOTOGRAPHS AND VIDEOTAPES
REGARDING SHOES AND GLOVES THAT MY STAFF IS CATALOGUING RIGHT
NOW AND WILL MAKE AVAILABLE TO YOU --
MR. COCHRAN: THANK YOU, YOUR HONOR.
THE COURT: -- LATER THIS MORNING.
MR. COCHRAN: THANK YOU.
MS. CLARK: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
LET'S PROCEED TO THE MICHELE KESTLER ISSUE.
MY UNDERSTANDING IS THE DEFENDANT WISHES TO CALL MISS
KESTLER TO TESTIFY FIRST TO THE NORMAL THINGS, THAT SHE IS THE
LAB DIRECTOR, THAT SHE DID PARTICIPATE IN THE INVENTORYING OF
SOME OF THE -- ALL OF THE EVIDENCE THAT WAS IN POSSESSION OF THE
LAPD AT A CERTAIN POINT IN TIME, DID OTHER THINGS WITH REGARDS TO
THE PHYSICAL EVIDENCE ITSELF, AND THEN THERE ARE THE OTHER ISSUES
REGARDING LEAKS OF INFORMATION.
ALL RIGHT. SO THOSE TWO GENERAL AREAS I UNDERSTAND
IS WHAT WE ARE GOING TO INQUIRE INTO; IS THAT CORRECT?
MR. NEUFELD, ARE YOU GOING TO HANDLE THIS?
MR. NEUFELD: YES, YOUR HONOR. I DON'T EVEN INTEND TO
SPEND THAT MUCH TIME ON HER INVENTORYING, THINGS LIKE THAT. I'M
GOING TO FOCUS MUCH MORE ON ACCESS TO INFORMATION, WHERE THE
SECURITY SYSTEM WAS AT LAPD FOR HANDLING THE INFORMATION IN THIS
CASE, AND WHAT HER ROLE WAS IN THAT AND HOW THAT RELATES TO THE
LEAKS.
I'M GOING TO MAKE IT I THINK EVEN MORE FOCUSED.
THE COURT: ALL RIGHT.
WELL, THIS IS A 402 HEARING.
MR. NEUFELD: RIGHT.
THE COURT: ALL RIGHT.
AND I UNDERSTAND WE HAVE COUNSEL FROM THE CITY
ATTORNEY'S OFFICE.
MR. WALSH: ARTHUR WALSH, ASSISTANT CITY ATTORNEY, HERE ON
BEHALF OF MISS KESTLER.
THE COURT: ALL RIGHT.
MR. WALSH, HAVE YOU HAD THE OPPORTUNITY TO CONSULT
WITH DEFENSE COUNSEL REGARDING THEIR REASONS FOR ASKING FOR THIS
402 HEARING THIS MORNING?
MR. WALSH: NO, YOUR HONOR, I HAVE NOT.
THE COURT: ALL RIGHT.
DO YOU HAVE ANY COMMENT OR HAVE YOU DISCUSSED THIS
WITH THE DISTRICT ATTORNEY'S OFFICE?
MR. WALSH: I UNDERSTAND BOTH FROM TALKING TO THE DISTRICT
ATTORNEY AND FROM GENERAL PRESS REPORTS WHAT THE SCOPE OF THIS IS
INTENDED TO BE, AND I AT THE PRESENT HAVE NO OBJECTION TO
QUESTIONS DIRECTED TO THE WITNESS REGARDING HER OWN PERSONAL
KNOWLEDGE OF THESE MATTERS.
HOWEVER, SHOULD QUESTIONS INTRUDE INTO HER KNOWLEDGE
OF ANY INTERNAL AFFAIRS INVESTIGATION OR ANY MATTER RELATING TO
PERSONNEL RECORDS OF THE POLICE DEPARTMENT EMPLOYEES, I WILL MAKE
APPROPRIATE OBJECTIONS AT THAT TIME.
THE COURT: ALL RIGHT.
THEN THE COURT WILL NOTE YOUR PRESENCE FOR THE RECORD
AND YOU MAY RISE TO ASSERT ANY OBJECTIONS AT A TIME YOU FEEL
APPROPRIATE.
MR. WALSH: THANK YOU, YOUR HONOR.
THE COURT: AND MISS KESTLER, WHAT ARE YOUR TIME
CONSTRAINTS THIS MORNING?
MS. KESTLER: I NEED TO LEAVE BY 10:00.
THE COURT: LET'S GET STARTED.
MR. GOLDBERG: YOUR HONOR, FOR THE RECORD, AS THE COURT
KNOWS, WE DID OBJECT TO THIS PROCEDURE, GIVEN THAT THERE IS NO
OFFER OF PROOF AND IN A 402 HEARING YOU DO NOT NECESSARILY HAVE
TO CALL LIVE WITNESSES SINCE IT IS MERELY A PRETRIAL RULING OF
HOW THE COURT WOULD LATER RULE AT THE TRIAL ITSELF.
THE COURT: ALL RIGHT.
YOUR OBJECTION IS NOTED FOR THE RECORD.
THANK YOU.
MR. NEUFELD: DID MISS KESTLER SAY SHE HAD TO LEAVE BY --
WHAT TIME DID SHE SAY?
THE COURT: TEN O'CLOCK.
MR. NEUFELD: TEN O'CLOCK. THANK YOU.
THE COURT: ALL RIGHT.
MRS. ROBERTSON.
MICHELE KESTLER, (402)
CALLED AS A WITNESS BY THE DEFENDANT, PURSUANT TO EVIDENCE CODE
SECTION 402, WAS SWORN AND TESTIFIED AS FOLLOWS:
THE CLERK: PLEASE RAISE YOUR RIGHT HAND.
YOU DO SOLEMNLY SWEAR THAT THE TESTIMONY YOU MAY GIVE
IN THE CAUSE NOW PENDING BEFORE THIS COURT, SHALL BE THE TRUTH,
THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, SO HELP YOU GOD.
THE WITNESS: I DO.
THE CLERK: PLEASE HAVE A SEAT ON THE WITNESS STAND AND
STATE AND SPELL YOUR FIRST AND LAST NAMES FOR THE RECORD.
THE WITNESS: MICHELE KESTLER, M-I-C-H-E-L-E K-E-S-T-L-E-R.
THE COURT: MR. NEUFELD.
MR. NEUFELD: THANK YOU.
DIRECT EXAMINATION
BY MR. NEUFELD:
Q GOOD MORNING, MISS KESTLER.
A GOOD MORNING.
Q MISS KESTLER, WHAT IS YOUR CURRENT TITLE?
A CURRENTLY I AM THE LABORATORY DIRECTOR, CHIEF
FORENSIC CHEMIST FOR THE LOS ANGELES POLICE DEPARTMENT.
Q AND AS OF JUNE 12TH, 1994, WHAT WAS YOUR TITLE?
A I WAS THE ASSISTANT LAB DIRECTOR OR ONE OF THE
ASSISTANT LAB DIRECTORS FOR THE LOS ANGELES POLICE DEPARTMENT
CRIME LABORATORY.
Q AND WHEN DID YOUR TITLE CHANGE?
A SOMETIME IN JULY. I DON'T RECALL THE DATE.
Q SOMETIME JULY OF 1994?
A UH-HUH, THAT'S CORRECT.
Q NOW, AS THE LABORATORY DIRECTOR DO YOU HAVE -- AND
BEFORE THAT AS THE ASSISTANT LABORATORY DIRECTOR, DO YOU HAVE
SOME DAY-TO-DAY MANAGEMENT RESPONSIBILITIES FOR THE VARIOUS UNITS
WITHIN SID?
A YES, I DO.
Q AND DURING THAT TIME PERIOD FROM JUNE OF 1994 TO THE
PRESENT, WAS IT ALSO YOUR PRACTICE TO ON OCCASION TAKE
RESPONSIBILITY FOR MANAGING SOME OF THE LARGER CASES?
A UMM, MANAGER -- MORE OVERSEE, NOT NECESSARILY MANAGE.
OVERSEE AND STAY INVOLVED AND HELP -- CAUSE THEM TO PROCEED AT A
SOMEWHAT NORMAL PACE, AS OPPOSED TO HELTER SKELTER.
Q OKAY.
IN THIS PARTICULAR CASE DID YOU PLAY A ROLE IN
OVERSEEING THE PROCESSING AND HANDLING OF THIS CASE?
A I WAS ATTEMPTING TO ASSIST IN THAT PROCESS BECAUSE AT
THAT TIME MR. MATHESON -- THERE WAS NO OTHER ASSISTANT LAB
DIRECTOR, SO I PLAYED A LITTLE LARGER ROLE THAN I NORMALLY WOULD.
Q WELL, FOR INSTANCE, YOU WERE CONTACTED BY THE POLICE
AS EARLY AS JUNE 13TH AT YOUR HOME TO BE INFORMED ABOUT WHAT WAS
GOING ON; ISN'T THAT RIGHT?
A JUST TO TELL ME THAT A LARGE CASE HAD TAKEN PLACE.
Q AND YOU HAD MEETINGS SHORTLY AFTER THAT ON JUNE 15TH
WITH MARCIA CLARK AND OTHER PEOPLE ABOUT THE PROCESSING AND
HANDLING OF EVIDENCE, DIDN'T YOU?
MR. GOLDBERG: THIS IS NOT RELEVANT TO THE 402 ISSUES, YOUR
HONOR.
THE COURT: IT IS NOT REAL RELEVANT, COUNSEL.
WE ARE TALKING ABOUT SEPTEMBER ISSUES.
MR. NEUFELD: ALL RIGHT.
Q WELL, MISS KESTLER, THIS CASE WAS GIVEN A SPECIAL
DESIGNATION OF A CONFIDENTIAL CASE, WAS IT NOT?
A YES.
Q OKAY.
AND AS A CONFIDENTIAL CASE ARE CERTAIN DIFFERENT
PROCEDURES SET UP TO MAINTAIN SECURITY OF THE TESTING OF EVIDENCE
AND FOR THE RESULTS OF THE TESTING OF EVIDENCE?
A THE TESTING OF EVIDENCE AND -- I'M NOT SURE I
UNDERSTAND YOUR QUESTION. I CAN ANSWER HALF AND I'M NOT SURE
THAT IS ANSWERING ALL OF IT.
Q ALL RIGHT.
A AS FOR THE TESTING OF EVIDENCE, NO, THE TESTING IS
STILL DONE UNDER THE SAME PROCESS.
Q WHAT ABOUT THE DISSEMINATION OF TEST RESULTS AND
INFORMATION? IS IT SHARED DIFFERENTLY IN A CASE ONCE IT HAS BEEN
DESIGNATED "CONFIDENTIAL"?
A WELL, NORMALLY THE LABORATORY ONLY SHARES THE RESULTS
WITH THE INVESTIGATING OFFICERS AND WITH THE PROSECUTORIAL
AGENCY. THAT DOESN'T CHANGE EITHER, OTHER THAN THE RESULTS ARE
HELD IN A SEPARATE SECURED AREA, USUALLY A SUPERVISOR'S OFFICE,
FILE CABINET SOME PLACE UNTIL SUCH TIME AS IT IS OVER.
Q AND IN THIS CASE, IS THAT THE PROCEDURE THAT WAS
UTILIZED?
A YES.
Q NOW, WHEN YOU SAY THAT THE TEST RESULTS ARE SHARED
ONLY WITH CERTAIN SELECT PEOPLE, IN THIS PARTICULAR CASE WHO WERE
THOSE PEOPLE, FIRST OF ALL, AT SID WITH WHOM THE TEST RESULTS
WOULD BE SHARED WITH?
THE COURT: WHY DON'T WE REPHRASE THAT QUESTION BECAUSE IT
IS VAGUE.
MR. NEUFELD: OKAY.
THE COURT: WE ARE TALKING ABOUT A CERTAIN SET OF TEST
RESULTS.
MR. NEUFELD: LET ME BACK UP ONE STEP.
THE COURT: ALL RIGHT.
Q BY MR. NEUFELD: WERE YOU ALSO DESIGNATED AS THE
LABORATORY DIRECTOR TO BE THE POINT PERSON AT SID TO BE THE
RECIPIENT OF REPORTS GOVERNING TEST RESULTS IN THIS CASE THAT
WERE MAILED TO SID FROM OUTSIDE AGENCIES?
A THAT IS -- I'M ALWAYS THE POINT PERSON FOR ALL TEST
RESULTS, ONLY BECAUSE THEY ARE ADDRESSED TO ME SO THAT THEY DON'T
GO TO THE BOMB SQUAD OR SOME OTHER PORTION OF SID WHO WOULD NOT
KNOW WHAT TO DO WITH THEM.
Q FOR INSTANCE YOU RECEIVED -- YOU HAD TEST RESULTS
MAILED TO YOU IN THIS CASE FROM THE FEDERAL BUREAU OF
INVESTIGATION; IS THAT RIGHT?
MR. GOLDBERG: IT IS VAGUE AS TO WHETHER SHE PHYSICALLY
RECEIVED OR WERE THESE JUST ADDRESSED TO HER.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. NEUFELD: WERE THE RESULTS THAT CAME FROM THE
FBI ADDRESSED TO YOU, MICHELE KESTLER, AT SID LABORATORY?
A IT IS UNCLEAR TO ME. I DON'T RECALL WHETHER WE
ACTUALLY RECEIVED THEM DIRECTLY IN THE LABORATORY OR WHETHER THEY
WENT TO THE COURT AT THAT TIME. I HAVE FORGOTTEN.
Q LET ME JUST SEE IF THIS REFRESHES YOUR RECOLLECTION.
THE COURT: COUNSEL, I'M GOING TO SUSTAIN THE COURT'S OWN
OBJECTION.
I'M NOT INTERESTED IN THIS.
MR. NEUFELD: I THINK, YOUR HONOR, IT IS GOING TO BECOME
VERY, VERY RELEVANT IN ABOUT FIVE MINUTES.
THE COURT: NO. WE ARE TALKING CELLMARK HERE; WE ARE NOT
TALKING FBI.
MR. NEUFELD: ALL RIGHT.
I CAN EVEN EXPLAIN IT IN FRONT OF -- THERE IS NO
PROBLEM, YOUR HONOR. THE ISSUE IS THAT AT THE SAME TIME THAT THE
REPORT WAS RECEIVED FROM CELLMARK THEY ALSO RECEIVED A REPORT
>FROM THE FBI REGARDING THE HAIR AND FIBER ANALYSIS.
THE COURT: IT IS IRRELEVANT.
MR. NEUFELD: WHICH WAS ALSO LEAKED TO THE PRESS THE SAME
DAY.
THE COURT: IT IS IRRELEVANT.
THE ONLY THING I'M INTERESTED IN IS WHETHER OR NOT
THE CELLMARK RESULTS --
MR. NEUFELD: ALL RIGHT. FINE.
Q HAVE YOU SEEN A REPORT FROM CELLMARK LABORATORY DATED
SEPTEMBER 8TH, 1994, THAT WAS FAXED TO MICHELE KESTLER AT THE SID
LABORATORY ON SEPTEMBER 12TH, 1994?
MR. WALSH: OBJECTION, VAGUE AS TO TIME.
THE COURT: OVERRULED.
THE WITNESS: I SAW A REPORT DATED SEPTEMBER 8TH, A HARD
COPY OF THAT REPORT, THAT AT SOME TIME WAS FAXED, BUT IT WAS NOT
FAXED TO ME, IT IS ADDRESSED TO ME.
I DO NOT KNOW WHAT THE COVER FAX -- WHO THE FAX WAS
SENT TO OR WHEN.
THE COURT: YOU DON'T KNOW TO WHOM THIS WAS FAXED?
THE WITNESS: NO. AGAIN, MY NAME IS ON THE HEADER BUT I
DON'T KNOW WHAT THE FAX COVER SHEET WOULD HAVE SAID, NOR DID I
EVER SEE IT.
MR. NEUFELD: YOUR HONOR, AT THIS TIME I WOULD LIKE TO
INTRODUCE FOR THE RECORD FOR THE COURT'S CONSIDERATION OF THESE
ISSUES A ONE, TWO, THREE, FOUR, FIVE-PAGE REPORT TO CELLMARK
WHICH IS A REPORT DATED SEPTEMBER 8TH SUPPLYING RESULTS OF DNA
TESTING ON THE BUNDY DROPS WITH A FAX FROM CELLMARK OF SEPTEMBER
12TH, 1994 --
THE COURT: AND WHAT IS THE -- EXCUSE ME.
DOES THIS DOCUMENT HAVE THE IMPRINTS OF THE NUMBER
THAT IT WAS FAXED TO?
MR. NEUFELD: NO, IT HAS THE IMPRINT --
THE COURT: WHICH IS THE MORE IMPORTANT POINT.
MR. COCHRAN: THE NUMBER THAT IT WAS FAXED FROM, THAT I SEE
ON THIS PARTICULAR SHEET --
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. NEUFELD: THE COPY THAT WE WERE PROVIDED BY THE
PROSECUTION IN DISCOVERY SAYS WHERE IT WAS FAXED FROM ON
SEPTEMBER 12TH, 1994.
IT IS ADDRESSED TO MICHELE KESTLER AT THE LOS ANGELES
POLICE DEPARTMENT.
THE COURT: ALL RIGHT.
MR. NEUFELD: BUT WE ALSO HAVE, IN CONJUNCTION WITH THIS,
WHICH WE RECEIVED IN DISCOVERY AND I WOULD LIKE TO INTRODUCE IT
AT THE SAME TIME, BECAUSE IT CAME AT THE SAME TIME AS PART OF THE
SAME DISCOVERY, WAS A COVER SHEET FROM THE LOS ANGELES POLICE
DEPARTMENT SCIENTIFIC INVESTIGATION DIVISION OF A FAX FROM
MICHELE KESTLER TO MARCIA CLARK AT THE LOS ANGELES COUNTY
DISTRICT ATTORNEY'S OFFICE DATED SEPTEMBER 16TH, 1994.
IN OTHER WORDS, WE ONLY RECEIVED --
THE COURT: I UNDERSTAND. OKAY.
MR. NEUFELD: -- A COPY THAT THE DISTRICT ATTORNEY --
THE COURT: MRS. ROBERTSON, WHAT IS THE NEXT IN ORDER FOR
DEFENSE EXHIBITS?
THE CLERK: 1281, YOUR HONOR.
THE COURT: ALL RIGHT.
THE CELLMARK REPORT OF -- DATED SEPTEMBER 8TH
ADDRESSED TO MISS KESTLER WILL BE 1281 AND 1282 WILL BE THE FAX
OF MISS KESTLER TO MISS CLARK.
(DEFT'S 1281 FOR ID = CELLMARK REPORT)
(DEFT'S 1282 FOR ID = FAX)
MR. WALSH: YOUR HONOR, I WONDER IF I MIGHT HAVE THE
OPPORTUNITY TO REVIEW THESE? I HAVEN'T SEEN THEM.
THE COURT: ALL RIGHT.
MRS. ROBERTSON, WOULD YOU HAVE THE STAFF MAKE COPIES
FOR EVERYBODY, PLEASE.
IT WOULD SPEED THINGS UP IN THE FUTURE, IF YOU ARE
GOING TO USE DOCUMENTS, THAT WE HAVE MULTIPLE COPIES AVAILABLE.
MR. NEUFELD: I APOLOGIZE, YOUR HONOR.
THE COURT: ALL RIGHT.
(BRIEF PAUSE.)
THE COURT: ALL RIGHT.
PROCEED, COUNSEL.
MR. NEUFELD: I WANTED TO SHOW HER A COPY OF THAT DOCUMENT
TO SEE IF IT REFRESHES HER RECOLLECTION AS TO A REPORT THAT SHE
DID IN FACT RECEIVE FROM CELLMARK DIAGNOSTICS, BUT --
THE COURT: SHE HAS TESTIFIED SHE SAW IT.
MR. NEUFELD: OKAY. ALL RIGHT.
THE COURT: SHE IS FAMILIAR WITH WHAT THE REPORT IS.
THE ISSUE IS WHEN DID SHE GET IT AND WHEN DID SHE SEE
IT.
Q BY MR. NEUFELD: MICHELE KESTLER, YOU WERE AT THE
OFFICE AT CERTAIN POINTS IN TIME ON SEPTEMBER 12TH, 1994; ISN'T
THAT CORRECT?
A THAT'S CORRECT.
Q AND YOU SAID THAT GIVEN THE FACT THAT THIS WAS A
CONFIDENTIAL CASE, ONLY CERTAIN PEOPLE AT SID WERE GIVEN ACCESS
TO REPORTS OR TO THIS REPORT, IF YOU WILL; IS THAT CORRECT?
MR. WALSH: OBJECTION. THAT MISSTATES THE TESTIMONY, YOUR
HONOR.
THE COURT: OVERRULED.
COUNSEL, MR. WALSH, I'M GOING TO ALLOW YOU TO MAKE
OBJECTIONS CONCERNING THE SCOPE; HOWEVER, THE PROSECUTION IS THE
REAL PARTY IN INTEREST AND IF THEY CHOOSE NOT TO MAKE EVIDENTIARY
OBJECTIONS, THAT IS THEIR CHOICE.
MR. WALSH: THANK YOU, YOUR HONOR.
THE WITNESS: COULD YOU REPEAT THE QUESTION?
MR. NEUFELD: SURE.
Q GIVEN THE FACT THAT THIS WAS A CONFIDENTIAL CASE, WHO
AT SID DID YOU AUTHORIZE TO HAVE ACCESS TO THE CELLMARK REPORT
DATED SEPTEMBER 8TH THAT WAS FAXED TO YOUR OFFICE ON SEPTEMBER
THE 12TH?
MR. GOLDBERG: ASSUMES FACTS NOT IN EVIDENCE, THAT SHE MADE
SUCH AUTHORIZATION.
THE COURT: OVERRULED.
THE WITNESS: I DIDN'T KNOW THE REPORT WAS COMING, SO I
WOULD HAVE GIVEN NO SUCH AUTHORIZATION.
Q BY MR. NEUFELD: WELL, PRIOR TO THIS REPORT COMING,
SINCE YOU SAID THIS CASE HAD ALREADY BEEN CLASSIFIED AS -- I'M
SORRY, HAD ALREADY BEEN CHARACTERIZED AS A CLASSIFIED CASE --
MR. GOLDBERG: OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION. CONFIDENTIAL CASE.
MR. NEUFELD: I'M SORRY, WHAT?
THE COURT: CONFIDENTIAL CASE.
MR. NEUFELD: I'M SORRY. THANK YOU. CONFIDENTIAL.
Q SINCE THIS CASE HAD ALREADY BEEN CHARACTERIZED AS A
CONFIDENTIAL CASE, WHAT POLICY WAS IN EFFECT AS TO WHO AT SID
WOULD HAVE ACCESS TO THE REPORTS THAT CAME FROM CELLMARK?
A ANYONE THAT WAS INVOLVED WITH THE SEROLOGY ASPECTS OF
THE CASE, WHICH AT THAT TIME WOULD HAVE BEEN OFF THE TOP OF MY
HEAD, AND THERE COULD HAVE BEEN MORE, BECAUSE I DON'T REMEMBER
WHO WAS DOING WHAT AT WHAT MOMENT, MR. MATHESON, MR. YAMAUCHI AND
THOSE ARE THE ONLY TWO THAT I CAN RECALL AT THE TIME.
Q AND OF COURSE YOURSELF?
A AND MYSELF.
Q AND IT WAS YOUR PRACTICE TO READ THE REPORTS FROM
CELLMARK AT SOME POINT AFTER THEY WERE RECEIVED; ISN'T THAT
CORRECT?
A NOT NECESSARILY. SOMETIMES GREG MATHESON WOULD JUST
FILL ME IN ON WHAT IT WAS.
Q MISS KESTLER, DO YOU RECALL HAVING A DISCUSSION WITH
ME AND BARRY SCHECK AT THE OFFICE OF THE CITY ATTORNEY ON JULY
13TH OF 1995?
A YES.
Q AND AT THAT TIME, DURING THAT MEETING, DIDN'T YOU SAY
THAT YOU PERSONALLY READ EVERY SINGLE CELLMARK AND DOJ REPORT
THAT CAME TO THE OFFICE?
A NO, I DIDN'T SAY THAT.
Q OKAY.
A I SAID I LOOKED AT THEM IF WE GOT THEM, BUT NEVER GOT
ANY DOJ REPORTS.
Q OKAY.
SO YOU SAID -- IN OTHER WORDS, THAT YOU DID LOOK AT
THOSE REPORTS THAT DID COME TO THE SID LABORATORY; IS THAT
RIGHT?
A YEAH, BUT I DIDN'T READ EVERY SINGLE ONE WORD FOR
WORD, NO.
Q OKAY.
SO WOULD IT BE A FAIR STATEMENT THAT YOU DID LOOK AT
THIS REPORT WHICH IS DATED SEPTEMBER 8TH AND THAT WAS FAXED TO
THE SID LABORATORY TO MICHELE KESTLER AT SOME POINT?
A AT SOME POINT I SAW A COPY OF THE FAX.
Q OKAY.
SO YOU ARE SAYING THAT THE ONLY THREE PEOPLE AT SID
WHO WOULD HAVE ACCESS TO THIS REPORT WOULD BE COLLIN YAMAUCHI,
GREGORY MATHESON AND YOURSELF; IS THAT RIGHT?
MR. GOLDBERG: MISSTATES THE TESTIMONY; ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: THOSE ARE THE ONLY PEOPLE; HOWEVER, THIS
REPORT WAS FAXED TO SOMEONE. IT WAS NOT FAXED TO ME. I DON'T
KNOW WHO THAT INDIVIDUAL IS, SO THAT INDIVIDUAL WOULD HAVE TO
TELL YOU WHO HAD ACCESS TO THAT REPORT.
Q BY MR. NEUFELD: DIDN'T YOU TELL US ON JULY 13TH,
MISS KESTLER, THAT THE PERSON WHO ACTUALLY RECEIVED THE FAX AT
THE FAX MACHINE WAS GREGORY MATHESON?
A I'M ASSUMING THAT, BUT I DON'T KNOW THAT PERSONALLY.
I DON'T HAVE PERSONAL KNOWLEDGE OF THAT.
Q DID GREGORY MATHESON TELL YOU AT ANY TIME BETWEEN
SEPTEMBER 12TH, 1994, AND TODAY, THAT HE WAS THE PERSON WHO STOOD
BY THE MACHINE AND PERSONALLY RECEIVED IT?
MR. GOLDBERG: CALLS FOR HEARSAY.
THE COURT: SUSTAINED.
MR. NEUFELD: IT IS A 402 HEARING, YOUR HONOR. I BELIEVE
THE COURT CAN CONSIDER HEARSAY.
THE COURT: SUSTAINED. THE RULES OF EVIDENCE STILL APPLY,
COUNSEL.
Q BY MR. NEUFELD: AS THE HEAD OF THIS LABORATORY DO
YOU KNOW WHO IT WAS WHO RECEIVED A FAX ON SEPTEMBER 12TH, 1994,
AT THE SID LABORATORY?
MR. GOLDBERG: NO FOUNDATION FOR PERSONAL KNOWLEDGE.
OBJECTION, CALLS FOR HEARSAY.
THE COURT: OVERRULED. DO YOU KNOW?
THE WITNESS: I HAVE NO PERSONAL KNOWLEDGE OF WHO RECEIVED
IT.
THE COURT: ALL RIGHT. HOLD ON. HOLD ON.
WHERE IS THE FAX MACHINE LOCATED IN THE LABORATORY?
THE WITNESS: IT IS IN THE INTERNAL OFFICES OUTSIDE MY
OFFICE. IT WOULD BE LIKE BACK IN YOUR CHAMBERS.
THE COURT: SO IT IS PART OF YOUR OFFICE COMPLEX?
THE WITNESS: THAT'S CORRECT.
THE COURT: ALL RIGHT.
AND WHO IS THE SID PERSON WHOSE JOB IT IS TO MAINTAIN
THE FAX MACHINE TO KEEP IT FULL OF PAPER?
THE WITNESS: WELL, AT THAT POINT WE HAD NO ONE BECAUSE I
DIDN'T HAVE A SECRETARY, SO IT WAS JUST THE PEOPLE WITHIN THAT
OFFICE.
THE COURT: PROCEED.
Q BY MR. NEUFELD: DID YOU AT ANY TIME, AS THE HEAD OF
THE LABORATORY, UNDERTAKE TO FIND OUT THROUGH AN INVESTIGATION
WHO IT WAS WHO PERSONALLY RECEIVED THE FAX ON SEPTEMBER 12TH,
1994, FROM CELLMARK DIAGNOSTICS?
MR. GOLDBERG: NOT RELEVANT AND CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: I CAN SAY THAT I WAS TOLD BY SOMEONE THAT
THEY RECEIVED IT.
Q BY MR. NEUFELD: AND WHO WAS THAT PERSON?
MR. GOLDBERG: CALLS FOR HEARSAY, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: GREG MATHESON.
MR. GOLDBERG: MOTION TO STRIKE.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: NOW, YOU SAID THAT YOU NAMED THE
PEOPLE AT SID WHO WERE GIVEN ACCESS TO THAT REPORT. YOU ALSO
SAID A LITTLE BIT EARLIER THAT PEOPLE IN THE INVESTIGATING AGENCY
WERE ALSO ENTITLED TO HAVE ACCESS TO THAT REPORT.
DID I MISUNDERSTAND YOU?
A I DIDN'T SAY THEY HAD ACCESS TO THE REPORT. I SAID
THAT WE WOULD HAVE TOLD THEM WHAT WAS IN THE REPORT IF THEY HAD
ASKED.
Q ALL RIGHT.
AND WHO WERE THE PEOPLE AT THE INVESTIGATING AGENCY
WHO WOULD BE ENTITLED TO BE TOLD WHAT THE SUBSTANCE OF THE REPORT
WAS, HAD THEY ASKED?
MR. GOLDBERG: NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: UMM, THE LEAD INVESTIGATORS,
TOM LANGE, PHIL VANNATTER, AND I SUPPOSE IF CAPTAIN GARTLAND HAD
ASKED FOR IT, HE WOULD HAVE GOTTEN IT, FOR EXAMPLE.
Q WHERE WERE THESE REPORTS KEPT ONCE THEY ARRIVED?
"THESE REPORTS" I'M REFERRING NOW TO CELLMARK REPORTS?
A IN GREG MATHESON'S OFFICE.
Q AND WHERE IS GREG MATHESON'S OFFICE IN RELATION TO
YOUR OFFICE?
A IT IS IN THE SEROLOGY UNIT.
Q WELL, IS GREG MATHESON'S OFFICE STILL IN THE SEROLOGY
UNIT OR HAS IT MOVED?
A IT HAS MOVED NOW.
Q OKAY.
HE IS IN THE SAME SUITE AS YOU?
A YES.
Q AND WOULD THEY BE LOCKED UP IN MR. MATHESON'S OFFICE?
A YES.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
THE COURT: MR. GOLDBERG, DOES THE PROSECUTION HAVE A COPY
OF THIS PARTICULAR REPORT DATED SEPTEMBER THE 8TH THAT HAS THE
TELEPHONE NUMBER TO WHICH IT WAS FAXED?
MR. GOLDBERG: NO. MY COPY DOESN'T HAVE A TELEPHONE NUMBER
TO WHICH IT WAS FAXED, BUT IT DOES HAVE THE NUMBER FROM WHICH IT
WAS FAXED.
THE COURT: ALL RIGHT.
MR. GOLDBERG: SO IT APPEARS TO BE SIMILAR TO THE -- I
SHOWED IT TO COUNSEL.
THE COURT: MISS KESTLER, DO YOU KNOW WHERE THE ORIGINAL
SEPTEMBER 8TH REPORT FROM -- FAXED REPORT FROM CELLMARK IS?
THE WITNESS: NO, I DO NOT.
MR. NEUFELD: ACTUALLY, YOUR HONOR, THIS -- THE PEOPLE'S
COPY IS BETTER THAN OURS, FOR ONE IMPORTANT REASON. WHAT IT HAS
ON TOP OF THE LINE THAT SHOWS THE FAX FROM CELLMARK, IT HAS A
LINE DATED SEPTEMBER 16TH SHOWING THAT THIS SAME COPY WAS FAXED
>FROM SID PIPER TECH TO THE DISTRICT ATTORNEY'S OFFICE, SO I THINK
YOU PROBABLY WOULD WANT A COPY OF THEIR COPY.
MR. GOLDBERG: ALTHOUGH WE ALREADY KNOW THAT BECAUSE IT IS
ON THE FACSIMILE TRANSMISSION SHEET.
MR. NEUFELD: I UNDERSTAND, BUT I'M JUST SAYING THAT EVERY
SINGLE PAGE HAS AN ADDITIONAL LINE WHICH WAS NOT VISIBLE ON OUR
COPIES.
THE COURT: ALL RIGHT.
PROCEED.
MR. NEUFELD: CAN I JUST GIVE THIS TO DEIRDRA?
MR. GOLDBERG: THAT IS MY ONLY COPY.
MR. NEUFELD: I'M GOING TO ASK HER TO MAKE COPIES.
THE COURT: LET'S NOT WASTE THE COURT'S TIME AT THIS POINT
TO DO THAT.
MR. NEUFELD: FINE.
Q NOW, MISS KESTLER, YOU LEARNED, DID YOU NOT, THAT
SOME OF THE RESULTS REFLECTED IN THAT CELLMARK REPORT, WHICH WAS
FAXED TO SID ON SEPTEMBER 12TH, APPEARED IN NEWSPAPER ARTICLES ON
SEPTEMBER 14TH AND SEPTEMBER 15TH OF 1994?
DO YOU KNOW THAT?
MR. GOLDBERG: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: I KNOW THAT AT SOME TIME THEY APPEARED IN
NEWSPAPER ARTICLES. I DON'T KNOW WHAT DATE.
Q BY MR. NEUFELD: WELL, NOT THE EXACT DAY, BUT MISS
KESTLER, YOU ARE AWARE OF THE FACT THAT IT APPEARED IN NEWSPAPER
ARTICLES DURING THAT SAME WEEK OF SEPTEMBER 12TH, 1994; ISN'T
THAT CORRECT?
MR. GOLDBERG: IT ALSO CALLS FOR A CONCLUSION AS TO WHAT
WAS THE SOURCE OF THE NEWSPAPER ARTICLES.
THE COURT: SUSTAINED.
"RESULTS" IS VAGUE, COUNSEL.
MR. NEUFELD: ALL RIGHT.
(BRIEF PAUSE.)
Q BY MR. NEUFELD: DID YOU LEARN,
MICHELE KESTLER, THAT ON SEPTEMBER 15TH, 1994, THE LOS ANGELES
TIMES PUBLISHED AN ARTICLE IN WHICH IT SAID THAT:
"FINAL DNA TESTS IN THE O.J. SIMPSON MURDER CASE
POINT TO SIMPSON AS THE SOURCE OF AT LEAST SOME OF THE BLOOD
DROPS FOUND NEAR THE BODIES OF NICOLE BROWN SIMPSON AND RONALD
LYLE GOLDBERG, SOURCES CLOSE TO THE CASE SAID WEDNESDAY."
MR. GOLDBERG: CALLS FOR HEARSAY. NO FOUNDATION FOR
PERSONAL KNOWLEDGE.
THE COURT: OVERRULED.
THE WITNESS: I AM NOT AWARE OF THAT PARTICULAR ARTICLE. I
JUST KNOW THERE WAS SOME.
Q BY MR. NEUFELD: MISS KESTLER, WHEN YOU WERE
INTERVIEWED BY MR. SCHECK AND MYSELF ON JULY 13TH, 1995, DIDN'T
YOU TELL US THAT MR. MATHESON SHOWED YOU THIS REPORT AFTER IT WAS
FAXED TO HIM AND THAT YOU WERE AWARE AT ABOUT THE SAME TIME THAT
PORTIONS OF THE REPORT HAD BEEN LEAKED TO THE PRESS?
DIDN'T YOU TELL US THAT ON JULY 13TH?
MR. GOLDBERG: THAT IS UNINTELLIGIBLE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. NEUFELD: DIDN'T YOU TELL US ON JULY 13TH,
1995, MISS KESTLER, THAT YOU LEARNED THAT WEEKS -- WITHIN A
COUPLE OF DAYS AFTER -- AFTER SEPTEMBER 12TH, THAT PORTIONS OF
THAT REPORT HAD BEEN LEAKED AND APPEARED IN THE PRESS?
MR. GOLDBERG: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: I HEARD THAT SOME OF THE CELLMARK RESULTS OR
SOME OF THE CELLMARK WORK, WHICH WERE ALSO IN THAT REPORT, HAD
BEEN LEAKED TO THE PRESS.
I DON'T KNOW IF THEY CAME FROM THAT REPORT OR WHAT
THEIR SOURCE WAS.
MR. NEUFELD: OKAY.
MR. GOLDBERG: MOTION TO STRIKE THE WITNESS' ANSWER AS
CALLING FOR SPECULATION.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: NOW, YOU ALSO -- YOUR HONOR, DO YOU
HAVE THE COPY THAT WAS -- OKAY.
THIS IS THE COPY THAT IS ACTUALLY IN EVIDENCE?
ALL RIGHT.
I WILL SHOW YOU -- WHAT NUMBER IS IT, YOUR HONOR,
THAT WAS MARKED.
THE COURT: THE CELLMARK REPORT?
MR. NEUFELD: WITH THE COVER FAX SHEET TO MARCIA CLARK.
THE COURT: THE COVER FAX SHEET IS 1282.
MR. NEUFELD: OKAY.
THE COURT: IT HAS DNA DISCOVERY NO 01728.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: I'M GOING TO SHOW YOU, MISS KESTLER,
DEFENDANT'S 1281 AND 1282 AND ASK YOU TO TAKE A LOOK AT IT.
A (WITNESS COMPLIES.)
Q ON THE FAX SHEET FROM LAPD SID OF THE CELLMARK REPORT
TO MARCIA CLARK AT THE D.A.'S OFFICE ON SEPTEMBER 16TH, DOES IT
INDICATE ON THE COVER SHEET THAT YOU ARE THE SENDER OF THIS
REPORT?
A MY NAME IS DOWN THERE AT THE BOTTOM, BUT THAT IS
NORMALLY WHERE I WOULD PUT MY NAME. THIS IS NOT IN MY
HANDWRITING, SO I DON'T RECALL DIRECTING SOMEONE TO SEND IT.
Q BUT IT IS YOUR NAME THAT APPEARS AT THE BOTTOM OF
THAT COVER SHEET IN ITS PRINTED --
A NO, IT IS HANDWRITTEN.
Q THAT IS WHAT I MEAN.
A IT IS SCRIPT.
Q IT IS NOT PART OF THE TYPED FORM?
A RIGHT?
A IT WAS SOMETHING THAT WAS WRITTEN IN?
A RIGHT.
Q THANK YOU.
AND MISS KESTLER, WHEN YOU LEARNED
THAT --
THE COURT: EXCUSE ME, COUNSEL.
DO YOU KNOW WHOSE HANDWRITING THIS IS?
THE WITNESS: NO, I DON'T RECOGNIZE IT.
THE COURT: THANK YOU.
PROCEED.
Q BY MR. NEUFELD: MISS KESTLER, WHEN YOU LEARNED THAT
SOME OF THE RESULTS FROM CELLMARK THAT ARE CONTAINED IN THE
REPORT THAT YOU RECEIVED ON SEPTEMBER 12TH AND HAD NOT BEEN SENT
OUT TO THE DISTRICT ATTORNEY UNTIL SEPTEMBER 16TH APPEARED IN
NEWSPAPER ACCOUNTS PRIOR TO THE DATE THAT THEY WERE SENT TO
MARCIA CLARK OF THE DISTRICT ATTORNEY'S OFFICE, DID YOU, AS THE
HEAD OF THAT LABORATORY, UNDERTAKE ANY EFFORTS TO FIND OUT
WHETHER SOMEONE AT SID WAS THE SOURCE OF THAT INFORMATION?
MR. GOLDBERG: CALLS FOR A CONCLUSION AS TO THE SOURCE OF
THE NEWSPAPER ACCOUNTS.
THE COURT: OVERRULED.
THE WITNESS: WELL, I DIDN'T -- I DIDN'T FEEL WE WERE THE
SOURCE, SO I DID NO INVESTIGATION.
I PRESUMED THE LEAK HAD COME FROM CELLMARK. THAT WAS
MY ASSUMPTION.
MR. GOLDBERG: MOTION TO STRIKE. CALLS FOR SPECULATION.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: YOU SAID YOU DIDN'T FEEL THAT YOU
WERE THE SOURCE OF THE LEAK. YOU MEAN SID, I TAKE IT; IS THAT
RIGHT?
A THAT'S CORRECT.
Q OKAY.
WHAT WAS YOUR BASIS FOR MAKING THAT CONCLUSION.
MR. GOLDBERG: IT IS NOT RELEVANT, YOUR HONOR. CALLS FOR
SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: I JUST FEEL THAT OUR EMPLOYEES HAVE TOO MUCH
INTEGRITY AND HONESTY AND HAVE BEEN INVOLVED IN MANY, MANY CASES
BEFORE AND WE HAVE NEVER BEEN A SOURCE OF ANY LEAKS.
Q BY MR. NEUFELD: DID YOU MAKE ANY INQUIRY OF THE
OTHER TWO PEOPLE WHO YOU SAID HAD THE LIMITED ACCESS TO THE
CELLMARK REPORT AS TO WHETHER OR NOT THEY WERE THE SOURCE OF THE
LEAK?
MR. GOLDBERG: THAT MISSTATES THE TESTIMONY THAT THEY WERE
THE ONLY ONES THAT HAD ACCESS.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
JUST USE THE SPECIFICS, COUNSEL.
Q BY MR. NEUFELD: DID YOU ASK COLLIN YAMAUCHI WHETHER
HE KNEW ANYTHING ABOUT HOW THIS INFORMATION WAS LEAKED TO THE
PRESS?
MR. GOLDBERG: NOT RELEVANT.
THE COURT: OVERRULED.
THE WITNESS: I DON'T BELIEVE I ASKED HIM SPECIFICALLY. I
BELIEVE MY QUESTION WAS IN GENERAL TO THE INDIVIDUALS INVOLVED
HAD THEY DISSEMINATED THIS REPORT ALREADY SOMEHOW.
Q BY MR. NEUFELD: WHEN YOU SAY YOU MADE THIS INQUIRY
TO THE INDIVIDUALS INVOLVED, FIRST OF ALL, WHICH INDIVIDUALS ARE
YOU REFERRING TO?
A I AM ASSUMING, BECAUSE I DON'T RECALL, THAT IT WOULD
BE GREG AND COLLIN PRIMARILY. PROBABLY GREG AND THEN GREG WOULD
HAVE GONE FORTH AND ASKED THE REST OF THE INDIVIDUALS.
MR. GOLDBERG: MOTION TO STRIKE AS SPECULATION.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: AND WHEN DID YOU HAVE THIS INQUIRY
OF GREG MATHESON?
A I DON'T RECALL. RIGHT AROUND THE TIME OF THE LEAK.
Q DID YOU MAKE ANY NOTES AT ALL ABOUT -- ABOUT YOUR
CONVERSATION WITH MR. MATHESON THAT YOU HAD WITH HIM AROUND THE
TIME OF THIS LEAK?
MR. GOLDBERG: YOUR HONOR, THIS WHOLE SUBJECT IS NOT
RELEVANT TO THE 402 HEARING.
THE COURT: OVERRULED. OVERRULED.
THE WITNESS: NO, IT WASN'T IMPORTANT TO ME TO DO THAT.
Q BY MR. NEUFELD: DID YOU HAVE MORE THAN ONE
CONVERSATION WITH GREG MATHESON ABOUT LEAK OR LEAKS OF DNA
RESULTS IN THIS CASE?
A NO.
Q JUST THIS ONE CONVERSATION AND YOU DON'T RECALL WHEN
AND WHERE IT WAS?
A NO.
Q OTHER THAN A CONVERSATION WITH GREGORY MATHESON, DID
YOU CONDUCT ANY INVESTIGATION OR INQUIRY OR SPEAK TO ANY OTHER
INDIVIDUALS TO TRY AND ASCERTAIN THE SOURCE OF THE LEAK?
A NO. I WAS CONVINCED THAT IT IS NOT IN THE
LABORATORY, SO I WASN'T CONCERNED.
Q AND OTHER THAN BASED ON A CONVERSATION WITH GREG
MATHESON AND YOUR OWN FEELINGS, I GUESS YOU WOULD HAVE TO
CHARACTERIZE IT, ABOUT THE PEOPLE WHO WORK FOR YOU, IS THERE
ANYTHING ELSE WHICH WAS THE BASIS FOR YOUR CONCLUSION THAT SID
WAS NOT INVOLVED IN THIS LEAK?
MR. GOLDBERG: YOUR HONOR, THIS IS NOT RELEVANT.
THE COURT: OVERRULED.
THE WITNESS: NO.
Q BY MR. NEUFELD: NOW, ON SEPTEMBER 20TH OF 1994
GREGORY MATHESON OBTAINED PGM RESULTS ON THE SOCKS IN THIS CASE.
ARE YOU AWARE OF THAT?
MR. GOLDBERG: THAT MISSTATES THE TESTIMONY IN EVIDENCE IN
THE TRIAL. I THINK IT WAS THE 18TH.
MR. NEUFELD: EXCUSE ME, YOUR HONOR. AT
PAGE 254 --
THE COURT: OVERRULED. OVERRULED.
MR. NEUFELD: OKAY.
THE COURT: ARE YOU AWARE OF THAT?
THE WITNESS: I AM NOT AWARE ON WHAT DATE HE GOT THE
RESULTS.
Q BY MR. NEUFELD: NOW --
A IT IS AROUND THAT TIME.
Q -- GREG MATHESON WOULD REPORT DIRECTLY TO YOU; IS
THAT CORRECT?
A HE REPORTS DIRECTLY TO ME. ARE YOU -- IN WHAT
CONTEXT ARE YOU REFERRING?
Q WELL, GENERALLY SPEAKING, FIRST OF ALL, IN TERMS OF
THE HIERARCHY OF PERSONNEL AT SID, WOULD HE REPORT DIRECTLY TO
YOU OR WOULD THERE BE ANYONE BETWEEN GREGORY MATHESON AND YOU?
A HE REPORTS DIRECTLY TO ME.
Q YOU SAID IN THIS PARTICULAR CASE, AND CORRECT ME IF I
AM MISTAKEN, THAT YOU WOULD BE KEPT INFORMED BY GREG MATHESON AS
RESULTS CAME IN DEALING WITH ANALYSIS OF EVIDENCE IN THIS CASE;
IS THAT CORRECT?
MR. GOLDBERG: ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: OF ANYTHING SIGNIFICANT, YES.
Q BY MR. NEUFELD: OKAY.
WELL, WOULD YOU AGREE THAT A PGM RESULT ON THE SOCKS
CONDUCTED BY GREGORY MATHESON IN THE SEROLOGY LABORATORY
SUGGESTING THAT THE BLOODSTAIN WAS CONSISTENT WITH NICOLE SIMPSON
BROWN WOULD BE DEEMED -- I'M SORRY, WITH NICOLE BROWN SIMPSON,
WOULD BE DEEMED SIGNIFICANT IN THE CASE?
A YES.
MR. GOLDBERG: IRRELEVANT.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: AND WOULD IT BE THE PRACTICE IN THIS
CASE FOR MR. MATHESON TO IMMEDIATELY REPORT TO YOU THE RESULTS OF
THIS PGM TESTING ON THE SOCKS SHORTLY AFTER HE ACHIEVED THOSE
RESULTS?
A NOT NECESSARILY IMMEDIATELY, BUT WITHIN
A REASONABLE AMOUNT OF TIME, DEPENDING ON HIS SCHEDULE --
Q WELL --
A -- AND MINE.
Q GREG MATHESON'S OFFICE IS IN THE SAME LABORATORY AS
YOURS, IS IT NOT?
THE COURT: THIS IS NOT PARTICULARLY INTERESTING, COUNSEL.
Q BY MR. NEUFELD: UMM, HAD MR. MATHESON ACHIEVED THE
PGM RESULTS ON THE SOCKS ON SEPTEMBER 20TH, 1994, WOULD HE HAVE
PRESENTED THOSE RESULTS TO YOU SHORTLY THEREAFTER, WITHOUT
PUTTING A SPECIFIC HOUR ON IT?
MR. GOLDBERG: CALLS FOR SPECULATION AND CONCLUSION.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: DID YOU BECOME AWARE OF THE PGM
RESULTS THAT MR. MATHESON ACHIEVED ON THE SOCKS FROM MR.
MATHESON?
A YES.
Q ARE YOU AWARE THAT ON SEPTEMBER 21ST, ONE DAY AFTER
GREGORY MATH ACHIEVED THE PGM RESULTS ON THE SOCKS, IT WAS
REPORTED ON KNBC THAT DNA TYPING ON THE SOCKS HAD REACHED THE
CONCLUSION THAT THE BLOOD ON THE SOCKS WAS CONSISTENT WITH HAVING
COME FROM NICOLE BROWN SIMPSON?
MR. GOLDBERG: ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: OVERRULED.
MR. GOLDBERG: ALSO CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: I BELIEVE IT WAS THE DAY AFTER. I DID HEAR
IT. I THINK IT WAS THE DAY AFTER.
Q BY MR. NEUFELD: THE DAY AFTER IT WAS ACTUALLY AIRED?
A I BELIEVE IT WAS THE DAY AFTER I FOUND OUT, SO THAT
WOULD HAVE BEEN THE 21ST.
Q OKAY.
THE DAY AFTER YOU FOUND OUT ABOUT THE PGM RESULTS YOU
MEAN?
A CORRECT.
Q OKAY.
AND SO IF YOU FOUND OUT ABOUT THE PGM RESULTS ON
SEPTEMBER 20TH AND YOU LEARNED OR YOU HEARD ON THE NEWS THIS
REPORT BY TRACIE SAVAGE ON SEPTEMBER 21ST THAT THERE HAD BEEN A
DNA MATCH ON THE SOCKS BETWEEN NICOLE BROWN SIMPSON AND THE BLOOD
FOUND ON THE SOCKS, DID YOU AT THAT POINT CONDUCT ANY
INVESTIGATION TO SEE WHETHER OR NOT SOMEBODY AT SID HAD BEEN THE
SOURCE OF THAT LEAK?
MR. GOLDBERG: NOT RELEVANT.
THE COURT: OVERRULED.
THE WITNESS: I PERSONALLY DID NOT CONDUCT AN
INVESTIGATION. I ASKED THE SAME TWO INDIVIDUALS WHO KNEW DID
ANYONE SAY ANYTHING, BUT I DID NOT PERSONALLY CONDUCT AN
INVESTIGATION.
Q BY MR. NEUFELD: SO WITH REGARD TO THE SOCK LEAK, IT
IS YOUR TESTIMONY THAT YOU ACTUALLY SPOKE TO BOTH COLLIN YAMAUCHI
AND GREG MATHESON?
A THAT'S CORRECT.
Q DID YOU SPEAK TO THEM TOGETHER OR SEPARATELY?
A I DON'T RECALL.
Q AND WHEN YOU SPOKE TO GREG MATHESON DID HE TELL YOU
WHO, IF ANYONE, DID KNOW ABOUT THE PGM RESULTS?
MR. GOLDBERG: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: UMM, HE TOLD ME ONE OTHER PERSON IN THE
LABORATORY KNEW ABOUT IT, AND AS FAR AS EVERYONE ELSE, I MADE
THE PHONE CALLS, SO --
MR. GOLDBERG: MOTION TO STRIKE; NO PERSONAL KNOWLEDGE.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: WHO WAS THE ONE PERSON IN THE
LABORATORY THAT GREG MATHESON SAID HAD KNOWLEDGE ABOUT THE PGM
RESULTS?
MR. GOLDBERG: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: HE FELT THAT ERIN RILEY KNEW ABOUT IT.
Q BY MR. NEUFELD: SO OTHER THAN GREG MATHESON AND
YOURSELF, THE ONLY OTHER PERSON WHO HAD BEEN TOLD THE PGM RESULTS
AT SID WAS ERIN RILEY?
A NO, AND COLLIN.
Q OKAY.
WHEN YOU SPOKE TO COLLIN YAMAUCHI, DID YOU ASK COLLIN
YAMAUCHI ANY QUESTIONS ABOUT WHO HAD ACCESS TO THE PGM RESULTS?
A WELL, NO. THE RESULTS -- MR. MATHESON HAD THE
RESULTS. COLLIN DIDN'T HAVE THE RESULTS.
Q OKAY.
WELL -- I'M SORRY, AND I APOLOGIZE IF I SOUND A
LITTLE BIT CONFUSED.
DID COLLIN YAMAUCHI KNOW THE PGM RESULTS ON THE SOCKS
AT ANY TIME DURING SEPTEMBER 20TH AND SEPTEMBER 21ST?
THE COURT: SUSTAINED. CALLS FOR SPECULATION, COUNSEL.
Q BY MR. NEUFELD: AFTER GREG MATHESON TOLD YOU THAT
ERIN RILEY HAD ALSO BEEN TOLD ABOUT THE PGM RESULTS, DID YOU HAVE
ANY INQUIRY OF ERIN RILEY?
A JUST THAT SHE KNEW ABOUT THEM.
Q DID YOU THEN TALK TO OR MEET WITH
ERIN RILEY TO FIND OUT IF SHE SHARED ACCESS TO THAT DATA WITH ANY
THIRD PARTY?
A SHE INDICATED SHE HAD NOT.
Q WELL, ARE YOU SAYING THAT YOU ACTUALLY SPOKE WITH
HER?
A YES.
Q AND WHEN DID THAT OCCUR?
A I DON'T KNOW.
Q DID YOU MAKE ANY NOTES OF THAT MEETING?
A NO.
Q ANY NOTES OF YOUR DISCUSSIONS WITH GREGORY MATHESON
ABOUT THIS LEAK?
A NO.
Q BASED ON YOUR INVESTIGATION, AFTER YOU LEARNED OF THE
LEAK AND THE TRACIE SAVAGE --
THE COURT: COUNSEL, I DON'T THINK IT IS APPROPRIATE TO
REFER TO IT AS A LEAK BECAUSE IT IS MISINFORMATION. IT IS NOT A
LEAK. A LEAK IS SOMETHING THAT IS IN FACT CORRECT.
MR. NEUFELD: YOUR HONOR, IN ALL DUE RESPECT, I THINK THERE
CAN BE LEAKS OF DISINFORMATION AS WELL AS LEAKS OF INFORMATION.
UMM, THIS IS SOMETHING THAT THIS WOULD NOT BE THE
FIRST TIME SOMETHING LIKE THAT HAPPENED IN OTHER SITUATIONS.
THE COURT: WELL, COUNSEL, I'M THE ONE LISTENING TO THIS.
MR. NEUFELD: I APPRECIATE THAT.
THE COURT: PROCEED.
PROCEED ACCORDINGLY.
Q BY MR. NEUFELD: BASED ON YOUR INVESTIGATION HAD THE
RESULTS OF THE --
MR. GOLDBERG: ASSUMES FACTS NOT IN EVIDENCE, THAT SHE
CONDUCTED ANY INVESTIGATION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. NEUFELD: BASED ON WHATEVER INQUIRIES YOU MADE
AFTER LEARNING THE PGM RESULTS OF SEPTEMBER 20TH AND LEARNING OF
TRACIE SAVAGE'S REPORT ON KNBC ON SEPTEMBER 21ST, HAD THOSE
RESULTS BEEN GIVEN TO ANYONE OUTSIDE SID PRIOR TO THE TIME THAT
TRACIE SAVAGE AIRED HER STORY ON THE NEWS?
A YES.
Q ALL RIGHT.
AND WHO HAD THAT INFORMATION BEEN GIVEN TO?
A THE INVESTIGATING OFFICER, TOM LANGE, AND MEMBERS OF
THE DISTRICT ATTORNEY'S OFFICE, MARCIA CLARK, AND I BELIEVE LISA
KAHN WAS IN HER OFFICE WITH HER.
Q WERE YOU THE PERSON WHO PERSONALLY CALLED THE
DISTRICT ATTORNEY'S OFFICE AND GAVE THEM THAT INFORMATION?
A YES, AND MR. MATHESON WAS ON ANOTHER PHONE IN THE
SAME ROOM WITH ME; NOT A SPEAKER PHONE. WE WERE JUST ON TWO
SEPARATE PHONES.
Q WAS THAT INFORMATION GIVEN TO MARCIA CLARK OR LISA
KAHN ON SEPTEMBER 21ST OR SEPTEMBER 20TH?
A I BELIEVE THE AFTERNOON OF THE 20TH.
Q AND YOU SAID THAT THE INFORMATION WAS ALSO GIVEN TO
CERTAIN OFFICERS IN THE POLICE DEPARTMENT?
A ONE OFFICER.
Q AND YOU A SAY THAT WAS DETECTIVE LANGE?
A THAT'S CORRECT.
Q AND WHEN WAS THAT INFORMATION GIVEN TO DETECTIVE
LANGE?
A AFTERNOON OF THE 20TH.
Q AFTER THE -- AFTER YOUR CONVERSATION WITH MISS CLARK?
A I BELIEVE IT WAS BEFORE.
Q AND WERE YOU THE PERSON WHO ALSO -- WAS THAT DONE BY
TELEPHONE?
A YES.
Q YOU ARE THE PERSON WHO ACTUALLY COMMUNICATED TO
DETECTIVE LANGE THE RESULTS OF THE PGM TEST?
A YES.
Q AFTER LEARNING OF THE -- OF THE TRACIE SAVAGE STORY
DID YOU MAKE ANY EFFORT TO FIND OUT WHETHER INDIVIDUALS WHO YOU
HAD GIVEN ACCESS TO THAT INFORMATION TO, SUCH AS DETECTIVE LANGE,
PROVIDED ACCESS TO THAT DATA TO ANY THIRD PARTIES?
MR. GOLDBERG: NOT RELEVANT.
THE COURT: OVERRULED.
THE WITNESS: NO. I WOULD HAVE NO REASON TO INQUIRE OF
THEM.
Q BY MR. NEUFELD: UMM, DID YOU SHARE THE PGM RESULTS
THAT YOU OBTAINED FROM GREGORY MATHESON WITH YOUR HUSBAND, WHO IS
A DETECTIVE AT LAPD?
A NO.
Q DID YOU SHARE THE RESULTS OF THE SEPTEMBER 8TH REPORT
THAT WAS FAXED TO YOU ON SEPTEMBER 12TH WITH YOUR HUSBAND?
A WELL, NO. 1, IT WASN'T FAXED TO ME EVEN THOUGH I'M ON
THE LETTERHEAD. IT HAD TO HAVE A COVER SHEET, TRANSMITTAL SHEET.
I NEVER SAW THAT FAX UNTIL LATER.
AND SECONDLY, NO, I DID NOT SHARE IT WITH MY HUSBAND.
Q WELL, WHEN YOU SAY YOU NEVER SAW THAT FAX UNTIL
LATER, WHAT DO YOU MEAN? LATER THAT DAY OR PERHAPS THE NEXT
DAY?
A SEVERAL DAYS LATER I THINK.
Q WELL, WHAT IS THE BASIS FOR YOUR BELIEF THAT IT WAS
SEVERAL DAYS LATER?
A BECAUSE AT SOME POINT SOMEONE ASKED ME ABOUT THE
CELLMARK RESULTS, WEREN'T THEY IN, AND I WENT AND ASKED GREG
WHETHER WE HAD GOTTEN THE CELLMARK RESULTS AND HE SAID YES, JUST
A FAX, AND HE SHOWED ME THE FAX.
Q MISS KESTLER, AT THE MEETING YOU HAD WITH MR. SCHECK
AND MYSELF ON JULY 13TH, 1995, DIDN'T YOU TELL US THAT YOU
LEARNED OF THE SEPTEMBER 8TH REPORT SHORTLY BEFORE YOU SAW THE
RESULTS PUBLISHED IN THE NEWSPAPER?
A WELL, THAT COULD HAVE BEEN SHORTLY BEFORE. I DON'T
-- I DON'T THINK THAT IS WHEN I SAW IT.
I DIDN'T SEE THE RESULTS IN THE NEWSPAPER ANYWAY,
BECAUSE I'M SORRY, I DON'T READ THE L.A. TIMES, I LISTEN TO KFWB
SO --
Q ALL RIGHT.
YOU SAID THAT IT WAS SHORTLY BEFORE YOU HAD LEARNED
THAT SOME OF THE RESULTS HAD BEEN PUBLISHED IN THE NEWSPAPER; IS
THAT CORRECT?
MR. GOLDBERG: MISSTATES THE TESTIMONY.
THE COURT: OVERRULED.
THE WITNESS: AROUND THAT TIME.
Q BY MR. NEUFELD: OKAY.
SO HAD THE RESULTS BEEN PUBLISHED IN THE NEWSPAPER AS
EARLY AS SEPTEMBER 15TH, THEN YOU MAY HAVE LEARNED ABOUT THOSE
RESULTS AS EARLY AS SEPTEMBER 14TH?
WOULD THAT BE FAIR TO SAY?
A THAT WOULD BE FAIR.
Q DO YOU KNOW WHO COMMANDER DAVID GASCON IS?
A YES.
Q AND WHO IS HE?
A HE IS A COMMANDER WITH THE LOS ANGELES POLICE
DEPARTMENT.
Q AND DO YOU KNOW WHAT HIS PARTICULAR ROLE IS AT THE
LOS ANGELES POLICE DEPARTMENT?
MR. GOLDBERG: NOT RELEVANT.
THE COURT: IS HE STILL A COMMANDER?
THE WITNESS: I BELIEVE HE HAS MOVED UP IN LIFE.
Q BY MR. NEUFELD: DEPUTY CHIEF NOW?
A I BELIEVE HE IS A DEPUTY CHIEF.
Q OKAY.
AT THE TIME OF THIS -- IN SEPTEMBER OF 1994, HE WAS A
COMMANDER THEN?
A I BELIEVE HE WAS STILL A COMMANDER AT THAT TIME AND I
BELIEVE HE WAS IN CHARGE OF PRESS RELATIONS.
Q OKAY.
AND HAD YOU HAD A PROFESSIONAL RELATIONSHIP WITH
DAVID GASCON INVOLVING OTHER CASES IN THE PAST?
A VERY RARELY I HAD SPOKEN TO HIM REGARDING OTHER
CASES.
Q BUT YOU HAD SPOKEN TO HIM REGARDING OTHER CASES?
A NOT SO MUCH REGARDING CASES. OFTENTIMES PRESS
RELATIONS GIVES US THE GO AHEAD TO ALLOW TOURS OR ALLOW PRESS
PERSONNEL TO BE INTERVIEWING US REGARDING OTHER CASES.
Q TO YOUR KNOWLEDGE IS COMMANDER GASCON, FRIEND OF THE
REPORTER TRACIE SAVAGE, TO YOUR KNOWLEDGE?
THE COURT: SUSTAINED.
MR. WALSH: OBJECTION.
THE COURT: SUSTAINED.
COUNSEL, ISN'T THE ISSUE WHETHER OR NOT SHE SHARED
ANY OF THIS INFORMATION WITH THEN COMMANDER GASCON? ISN'T THAT
THE ISSUE?
Q BY MR. NEUFELD: NOW, JUST SO WE CAN HAVE A VERY GOOD
CLEARER SENSE OF THIS CHRONOLOGY, MISS KESTLER, IF THE PGM RESULT
CAME IN ON SEPTEMBER 20TH AND TRACIE SAVAGE RAN A STORY ON
SEPTEMBER 21ST, ISN'T IT TRUE THAT THE SOCKS HAD NOT EVEN BEEN
SENT OUT YET FOR DNA TESTING AS OF SEPTEMBER 21ST, 1994?
MR. GOLDBERG: YOUR HONOR, IT IS ARGUMENTATIVE AS PHRASED.
THE COURT: OVERRULED.
MR. GOLDBERG: IT IS ALSO COMPOUND.
THE COURT: OVERRULED.
THE WITNESS: I DON'T BELIEVE THEY HAD BEEN SENT OUT AS OF
THE 21ST.
Q BY MR. NEUFELD: IN FACT, WASN'T THERE A MEETING HELD
ON SEPTEMBER 23RD AT SID AT WHICH TIME A DECISION WAS MADE TO
SEND THE SOCKS OUT FOR TESTING, FOR DNA TESTING?
A MY UNDERSTANDING WAS THAT -- OR MY FEELING WAS, WHEN
SPEAKING TO MR. MATHESON ON THE 20TH, THAT WE WERE GOING TO SEND
THEM OUT FOR DNA; IT WAS JUST A QUESTION OF WHERE AND TO -- AND
WHAT TESTING SPECIFICALLY -- SPECIFICALLY WHAT DNA TESTING WOULD
BE DONE, AND I DON'T RECALL THE MEETING YOU ARE REFERRING TO.
Q BUT YOU RECALL THAT THERE WAS SOME MEETING HELD --
MR. GOLDBERG: YOUR HONOR, THIS ISN'T RELEVANT.
THE COURT: OVERRULED.
MR. NEUFELD: LET ME JUST SHOW YOU A PAGE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEPUTY DISTRICT ATTORNEY
AND DEFENSE COUNSEL.)
MR. NEUFELD: MAY I APPROACH THE WITNESS?
THE COURT: MR. NEUFELD, YOU HAVE TWO MORE MINUTES, SO USE
YOUR TIME ACCORDINGLY.
MR. NEUFELD: WELL --
Q MISS KESTLER, OTHER THAN ANY INQUIRIES THAT YOU MADE,
ARE YOU AWARE THAT THERE WAS AN INTERNAL AFFAIRS INVESTIGATION
INTO THE SOURCE OF LEAKS OF DNA REPORTS IN THIS CASE?
A I AM AWARE ONLY BECAUSE I WAS INTERVIEWED.
Q AND WHO INTERVIEWED YOU?
MR. GOLDBERG: CALLS FOR PRIVILEGED INFORMATION, YOUR
HONOR.
THE COURT: WHO INTERVIEWED YOU?
MR. GOLDBERG: YES.
THE COURT: OVERRULED.
THE WITNESS: I BELIEVE HIS NAME -- OH, I HATE TO EVEN
SUGGEST BECAUSE I'M NOT SURE I REMEMBER WHO IT WAS. I COULD MAKE
A GUESS.
Q BY MR. NEUFELD: OKAY. DON'T GUESS.
APPROXIMATELY WHEN DID THIS INTERVIEW TAKE PLACE?
A THAT IS ANOTHER ONE I CAN'T REMEMBER. IT SEEMS TO ME
IT WAS IN THE FALL SOME TIME.
Q AND, TO YOUR KNOWLEDGE DID INTERNAL AFFAIRS DIVISION
CONCLUDE THE INVESTIGATION INTO THIS MATTER?
MR. WALSH: OBJECTION, CALLS FOR CONFIDENTIAL INFORMATION.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: WAS YOUR INTERVIEW BY INTERNAL
AFFAIRS INTO THE LEAK ISSUE TRANSCRIBED, EITHER WITH A TAPE --
EITHER BY A REPORTER OR BY A TAPE RECORDER?
A IT WAS TAPE-RECORDED.
MR. NEUFELD: ONE MOMENT, YOUR HONOR.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: MISS KESTLER, DO YOU KNOW TRACIE
SAVAGE?
A NO.
Q YOU NEVER MET HER?
A NO.
Q HAVE YOU EVER SPOKEN TO HER ON THE PHONE?
A NO.
Q HAVE YOU BEEN THE SOURCE OF ANY INFORMATION THAT HAVE
APPEARED IN THE NEWSPAPERS OR THE PRESS OR TELEVISION OR RADIO
ABOUT THIS CASE?
A ABSOLUTELY NOT.
MR. NEUFELD: ONE MOMENT.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: DID YOU GIVE THE INFORMATION TO
DAVID GASCON?
A NO.
Q BASED ON YOUR OWN INVESTIGATION AS THE HEAD OF THE
SID LABORATORY, HAVE YOU LEARNED WHETHER ANYONE ELSE GAVE THIS
INFORMATION TO DAVID GASCON?
MR. GOLDBERG: ASSUMES FACTS NOT IN EVIDENCE, THAT SHE
CONDUCTED AN INVESTIGATION.
THE COURT: SUSTAINED.
MR. NEUFELD: ONE MOMENT, YOUR HONOR.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. NEUFELD: YOUR HONOR, THERE IS JUST -- I WOULD ASK THAT
THE WITNESS PROVIDE AT HER EARLIEST CONVENIENCE, AND I WILL
FINISH MY EXAMINATION NOW, WITH THE NAME OF THE INDIVIDUAL AT SID
WHO DID EXAMINER HER.
AND SECONDLY, YOUR HONOR, ONCE WE OBTAIN THE SID
REPORT I WOULD ASK THAT SHE BE ALLOWED TO BE RECALLED -- I'M
SORRY -- I'M SORRY, INTERNAL AFFAIRS REPORT, THAT WE BE PERMITTED
TO RECALL HER TO CONTINUE THE EXAMINATION.
THE COURT: YOU ARE NOT FINISHED?
MR. NEUFELD: I'M FINISHED. THAT ONE CONDITION, THAT'S
ALL.
THE COURT: ALL RIGHT. ALL RIGHT.
MISS KESTLER, IF YOU WOULD, WOULD YOU MAKE INQUIRY
AS TO WHO THE DETECTIVE OR SERGEANT WAS FROM IAD WHO INTERVIEWED
YOU AND PROVIDE THAT INFORMATION TO MR. WALSH.
MR. WALSH, WILL YOU PROVIDE THAT INFORMATION TO US,
PLEASE?
MR. WALSH: YES, I WILL.
THE COURT: ALL RIGHT.
MISS KESTLER, YOU ARE EXCUSED SUBJECT TO RECALL.
MR. GOLDBERG: YOUR HONOR, I JUST ASK ONE QUESTION IF I
MAY?
THE COURT: ONE QUESTION.
CROSS-EXAMINATION
BY MR. GOLDBERG:
Q WITH RESPECT TO THE SEPTEMBER 8TH, 1994, REPORT THAT
YOU HAVE BEEN QUESTIONED ABOUT, DO YOU HAVE A SPECIFIC
RECOLLECTION TODAY WHETHER YOU FIRST SAW THIS BEFORE THE NEWS
REPORT, THE DAY OF THE NEWS REPORT OR AFTER THE NEWS REPORT?
A NO, I DON'T HAVE AN ABSOLUTE RECOLLECTION.
MR. GOLDBERG: THANK YOU.
NOTHING FURTHER.
THE COURT: ALL RIGHT.
THANK YOU, MISS KESTLER.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT.
WE WILL TAKE A TEN-MINUTE RECESS, BRING THE JURY DOWN
AND WE WILL CONCLUDE PROFESSOR MAC DONELL TESTIMONY.
(RECESS.)
THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER.
ALL PARTIES ARE AGAIN PRESENT. THE JURY IS NOT
PRESENT.
COUNSEL, ANYTHING WE NEED TO TAKE UP BEFORE WE INVITE
THE JURY TO REJOIN US?
MR. NEUFELD: JUST ONE SCHEDULING MATTER, YOUR HONOR.
I WAS CONTACTED BY MR. SCHECK AND THEY FILED A MOTION
REGARDING THE CONTAMINATION STUDIES BEING DONE BY DR. GERDES.
COULD THAT BE HEARD AT FIVE O'CLOCK THIS AFTERNOON? I THINK DR.
GERDES IS SCHEDULED TO TESTIFY TOMORROW.
THE COURT: ARE THE LAWYERS AVAILABLE WHO ARE GOING TO BE
ARGUING THAT ISSUE? WE MAY BE ABLE TO GET TO IT EARLIER THAN
FIVE O'CLOCK.
MR. NEUFELD: ALL RIGHT, FINE, THREE O'CLOCK OR FOUR
O'CLOCK OR WHATEVER, BUT I WOULD ONLY ASK THAT WE DO IT AFTER THE
BOSCO MATTER ONLY BECAUSE MR. SCHECK NEEDS THE TIME, SO I WOULD
JUST ASK THAT IT BE THE LAST ORDER OF BUSINESS.
THE COURT: I THINK WE CAN ACCOMMODATE THAT THIS AFTERNOON.
MR. NEUFELD: BECAUSE MR. SCHECK ISN'T HERE.
THE COURT: HE IS NOT HERE?
MR. NEUFELD: HE IS IN LOS ANGELES; HE IS NOT IN THE
BUILDING, AND I'M SAYING I WOULD LIKE IT TO BE THE END OF THE
DAY.
THE COURT: MISS CLARK.
MS. CLARK: I BELIEVE MR. CLARKE IS HERE. I WOULD JUST
LIKE TO MAKE SURE BEFORE I COMMIT.
THE COURT: ALL RIGHT.
WELL, DON'T GO AWAY. I NEED TO FINISH ONE OTHER
MATTER:
THERE WERE TWO MATTERS THAT HAD NOT BEEN RESOLVED AT
THE END OF COURT YESTERDAY. THERE WAS A REQUEST FOR SANCTIONS BY
THE DEFENSE AND AN INSTRUCTION TO THE JURY REGARDING THE DISPUTE
OVER MR. MAC DONEL'S NOTES REGARDING THE EXAMINATION THAT WAS
CONDUCTED ON APRIL THE 2ND.
I'M GOING TO INSTRUCT THE JURY AS FOLLOWS WHEN THEY
RETURN:
"DURING THE COURSE OF YESTERDAY'S
CROSS-EXAMINATION OF MR. MAC DONELL IT WAS SUGGESTED THAT MR. MAC
DONELL'S NOTES CONCERNING THE EXAMINATION HE CONDUCTED AN APRIL
THE 2ND, 1995, HAD NOT BEEN TURNED OVER TO THE PROSECUTION.
THESE NOTES WERE IN FACT TURNED OVER TO THE PROSECUTION ON JULY
THE 17TH, 1995. YOU SHALL THEREFORE DISREGARD ANY NEGATIVE
INFERENCE IMPLIED BY THE SUGGESTION."
ALL RIGHT.
AS TO THE REQUEST FOR SANCTIONS REGARDING VIOLATION
OF THE COURT'S DIRECTION THAT ANY USE OF TRANSCRIPTS -- THAT A
SIDE BAR BE REQUESTED BEFORE TRANSCRIPTS ARE USED, THE COURT
REPORTERS HAVE NOT PROVIDED ME WITH THE TRANSCRIPT, AND I LOST
IT ON MY COMPUTER YESTERDAY, SO I WILL TAKE THAT UNDER ADVISEMENT
BECAUSE I HAVE NOT REVIEWED THE TRANSCRIPT.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
MS. CLARK: YOUR HONOR, MR. GOLDBERG, WHEN WE HAVE OUR NEXT
BREAK, WOULD LIKE TO ADDRESS THE COURT CONCERNING THE LETTER
FORWARDED TO THE COURT.
THERE WERE DISCOVERY VIOLATIONS BY COUNSEL THAT WE
HAD RAISED WITH THE COURT THAT HAD NOT BEEN RESOLVED, AND MR.
GOLDBERG FORWARDED THE LETTER TO THE COURT CONCERNING THOSE
VIOLATIONS.
I DON'T KNOW WHEN THE COURT -- I THINK THAT PERHAPS
BEFORE THE JURY IS INSTRUCTED, AS THE COURT PROPOSES, THAT THE
COURT WOULD NEED TO HEAR FROM MR. GOLDBERG ABOUT THIS, BECAUSE IT
DOES BEAR DIRECTLY ON THE DEFENSE RIGHT.
THE COURT: NO. THE ISSUE WAS WHETHER OR NOT THE NOTES HAD
BEEN PROVIDED TO YOU PREVIOUSLY.
THE ISSUE OF SANCTIONS FOR DISCOVERY IS SOMETHING
COMPLETELY DIFFERENT. IT IS A DIFFERENT SUBJECT.
ALL RIGHT. LET'S HAVE THE JURORS, PLEASE.
(BRIEF PAUSE.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN.
PLEASE BE SEATED.
AND LET THE RECORD REFLECT THAT WE HAVE BEEN REJOINED
BY ALL THE MEMBERS OF OUR JURY PANEL.
GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
THE COURT: LADIES AND GENTLEMEN, DURING THE COURSE OF
YESTERDAY'S CROSS-EXAMINATION OF MR. MAC DONELL IT WAS SUGGESTED
THAT MR. MAC DONELL'S NOTES CONCERNING THE EXAMINING HE CONDUCTED
ON APRIL THE 2ND, 1995, IT WAS SUGGESTED THAT THOSE NOTES HAD NOT
BEEN TURNED OVER TO THE PROSECUTION.
THESE NOTES HAD IN FACT BEEN TURNED OVER TO THE
PROSECUTION ON JULY THE 17TH, 1995.
YOU SHALL THEREFORE IGNORE THE NEGATIVE INFERENCE
IMPLIED BY THAT SUGGESTION.
ALL RIGHT.
MR. MAC DONELL, WOULD YOU RESUME THE WITNESS STAND,
PLEASE.
HERBERT MAC DONELL,
THE WITNESS ON THE STAND AT THE TIME OF THE EVENING ADJOURNMENT,
RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:
THE COURT: MRS. ROBERTSON, ARE WE --
THE CLERK: YES.
THE COURT: THANK YOU.
GOOD MORNING AGAIN, MR. MAC DONELL.
THE WITNESS: GOOD MORNING.
THE COURT: SIR, YOU ARE REMINDED THAT YOU ARE STILL UNDER
OATH.
AND MISS CLARK, YOU MAY CONCLUDE YOUR
CROSS-EXAMINATION.
MS. CLARK: GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
CROSS-EXAMINATION (RESUMED)
BY MS. CLARK:
Q GOOD MORNING, MR. MAC DONELL.
A GOOD MORNING, MRS. CLARK.
Q NOW, YOU STATED, SIR, THAT YOU WERE THE DIRECTOR OF A
CRIME LAB, CORRECT?
A THAT'S CORRECT.
Q AND YOU STILL ARE?
A YES.
Q AND THAT IS THE CRIME LAB THAT YOU OWN AND OPERATE;
IS THAT CORRECT, SIR?
A THAT'S CORRECT.
Q HOW IS YOUR COMMUTE?
A I COMMUTE BY GOING FROM THE UPPER LEVEL TO THE LOWER
LEVEL. WE EITHER HAVE THE LABORATORY IN THE LOWER LEVEL AND THE
-- LIVE IN THE UPPER LEVEL OF THE LABORATORY OR THE LABORATORY IS
IN THE LOWER LEVEL OF THE HOME, EITHER WAY.
Q SO YOUR LABORATORY IS IN THE LOWER LEVEL OF YOUR
HOME; IS THAT CORRECT, SIR?
A THAT'S CORRECT.
Q AND THAT IS A PROFIT-MAKING BUSINESS, ISN'T IT?
A IT IS SUPPOSED TO.
Q HOPEFULLY.
A SOMETIMES IT ISN'T.
Q BUT ISN'T THAT WHERE YOU DERIVE MOST OF YOUR INCOME,
SIR, FROM THE LABORATORY?
A YES. DIRECTLY OR INDIRECTLY, YES.
Q AND YOU HAVE HAD HOW MANY EMPLOYEES WORKING FOR YOU,
SIR?
A AT THE CURRENT TIME I HAVE ONE FULL-TIME AND OTHER
PEOPLE COME IN FROM TIME TO TIME AS NEEDED. I HAVE HAD AS MANY
AS NINE PART-TIME PEOPLE AT ONE TIME.
Q BUT AS FAR AS REGULARLY EMPLOYED PEOPLE THAT WORK FOR
ON A FULL-TIME BASIS, IT IS ONE; IS THAT CORRECT?
A THAT'S CORRECT.
Q SO ON A FULL-TIME BASIS, THE LAB CONSISTS OF YOURSELF
AND ONE OTHER PERSON?
A THAT'S CORRECT.
Q NOW, SIR, IN YOUR LAB DO YOU HAVE A DARK ROOM?
A WE HAVE TWO DARK ROOMS, YES.
Q TWO DARK ROOMS.
YOU ARE AN ACCOMPLISHED PHOTOGRAPHER, ARE YOU NOT,
SIR?
A I WOULD SAY YES. I TAUGHT FORENSIC PHOTOGRAPHY AND
HAD TWO PHOTO STUDIOS, YES.
Q AND WOULD YOU CONSIDER PHOTOGRAPHY TO BE A KEY ASPECT
OF YOUR JOB?
A ABSOLUTELY.
Q AND DO YOU FEEL THAT THAT IS A VERY IMPORTANT ASPECT
OF THE TALENTS THAT YOU HAVE, SIR, YOUR ABILITY TO PHOTOGRAPH
FORENSICALLY?
A WELL, IT IS EXTREMELY IMPORTANT TO DOCUMENT CERTAIN
THINGS. SOMETIMES PHOTOGRAPHS ARE NOT NEEDED, BUT IT IS
CERTAINLY A VERY IMPORTANT ASSET TO BE ABLE TO TAKE GOOD
PHOTOGRAPHS.
Q AS A MATTER OF FACT, SIR, WHEN YOU DON'T TAKE NOTES
CONTEMPORANEOUSLY WITH AN OBSERVATION, IF YOU DO TAKE
PHOTOGRAPHS, THAT WILL DOCUMENT WHAT YOU SEE; ISN'T THAT CORRECT?
A MOSTLY IT WILL, YES.
Q NOW, IN THIS PARTICULAR CASE, SIR, ON APRIL THE 2ND,
1995, WHO WAS DIRECTING THE PHOTOGRAPHY OF THE SOCK?
A BASICALLY DR. LEE WAS, BUT WE ALTERNATED, WE LOOKED
AT DIFFERENT AREAS IN THE MICROSCOPE, AND I BELIEVE HE ACTUALLY
TOOK THE PHOTOGRAPHS, BUT WE BOTH SAW WHAT IT WAS PRIOR TO IT
BEING PHOTOGRAPHED.
Q NOW, IN THIS CASE YOU HAVE TOLD US ABOUT SIX OR SEVEN
OF THOSE LITTLE BALLS, ONLY ONE OF WHICH WAS BROUGHT INTO COURT
IN THE FORM OF A PHOTOGRAPH, CORRECT?
A THAT'S CORRECT.
Q YOU DID NOT DIRECT THAT ANY OTHER PHOTOGRAPHS BE
TAKEN OF THE OTHER LITTLE BALLS; IS THAT CORRECT?
A NO. ACTUALLY I DIDN'T KNOW HOW MANY PHOTOGRAPHS DR.
LEE TOOK. THIS IS THE ONE THAT I HAVE SEEN MOST OFTEN AND I
THINK IT IS AN EXCELLENT PHOTOGRAPH TO SHOW WHAT WE SAW.
Q BUT YOU DID NOT DIRECT THAT THE OTHER LITTLE BALLS
THAT YOU ARE NOW DESCRIBING VERBALLY TO THE JURY BE DEPICTED IN A
PHOTOGRAPH SO THAT THEY COULD SEE IT AS WELL?
A THAT IS CORRECT.
Q AND IN YOUR JUDGMENT, SIR, IN YOUR OPINION WOULDN'T
IT HAVE BEEN APPROPRIATE OR A GOOD IDEA TO TAKE PICTURES OF ALL
OF THOSE LITTLE BALLS SO THE JURY COULD SEE THEM ALL?
A I DON'T BELIEVE SO. WE DESCRIBED THEM. THEY WERE
THERE AND ONE THAT WAS REPRESENTATIVE AND PERHAPS SHOWED THE
BONDING OF THE -- NOT ONLY THE RED MATERIAL THAT DRIED TO A
FIBER, BUT THE FIBER BEING BONDED TO A THREAD, I THINK THAT WAS
THE BEST ONE THIS WE COULD USE AS AN EXAMPLE.
Q NEVERTHELESS, SIR, THE SIX OR SEVEN LITTLE BALLS THAT
YOU HAVE DESCRIBED IS A KEY ASPECT OF YOUR TESTIMONY, WOULDN'T
YOU AGREE?
A NO. I THINK THAT IS JUST MAKING THE SAME POINT SIX
OR SEVEN TIMES OVER.
Q YOU DON'T THINK THAT IT WOULD BE IMPORTANT TO LET THE
JURY SEE EVERYTHING THAT YOU SAW ON APRIL THE 2ND, 1995?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE.
THE COURT: SUSTAINED.
Q BY MS. CLARK: LET ME ASK YOU THIS, SIR:
IT WAS DR. LEE THAT DIRECTED THE PHOTOGRAPH BE TAKEN
THAT WAS BROUGHT INTO COURT OF THAT LITTLE BALL ON THE FIBER?
A YES. COLLECTIVELY WE BOTH LOOKED AT IT AND HE SAID
"THIS IS ONE WE SHOULD PHOTOGRAPH" AND HE DID.
Q IN YOUR JUDGMENT, SIR, YOU ARE AN EXPERT IN BLOOD
SPATTER ANALYSIS, ARE YOU NOT?
A INTERPRETATION.
Q INTERPRETATION, EXCUSE ME.
AND IN YOUR JUDGMENT, SIR, WHO IS THE MORE QUALIFIED
EXPERT IN BLOOD SPATTER ANALYSIS, YOURSELF OR DR. LEE?
A I THINK THAT IS AN UNFAIR QUESTION. I WOULD NOT RATE
DR. LEE IN ANY WAY. WE HAVE WORKED ON MANY CASES TOGETHER AND
BEEN ON MANY SEMINARS TEACHING THE SUBJECT OF BLOODSTAIN PATTERN
INTERPRETATION.
I HAVE NEVER GIVEN HIM ANY EXAMINATION AND HE HAS
NEVER GIVEN ME ONE. I WOULD SAY HE IS IMMINENTLY QUALIFIED AND I
WOULD LIKE TO BELIEVE I AM.
Q WOULD YOU SAY, SIR, THAT YOU ARE BOTH EQUALLY
QUALIFIED?
A I THINK THAT IS A FAIR STATEMENT, YES.
Q WOULDN'T YOU SAY YOU ALSO HAD EQUAL SAY IN WHICH
PHOTOGRAPHS WERE TO BE TAKEN TO DOCUMENT THE OBSERVATIONS THAT
YOU MADE ON APRIL 2ND?
A THAT IS TRUE.
Q AND YOU DID NOT DIRECT THAT ANY ADDITIONAL
PHOTOGRAPHS BE TAKEN OF THE ONE THAT WAS PRESENTED IN COURT TODAY
OF THAT ONE LITTLE BALL?
A THAT IS CORRECT.
Q NOW, YOU DID NOT WRITE, WHEN YOU SAID NOTES THE OTHER
DAY THAT YOU HAD TAKEN, THOSE NOTES CONTAIN NO DESCRIPTION OF THE
LITTLE BALLS THAT YOU HAVE COME HERE TO TESTIFY TO; IS THAT
CORRECT?
A THAT IS CORRECT.
Q NOR DOES THE REPORT YOU WROTE ON JULY 11TH CONTAIN
ANY DESCRIPTION OF THE LITTLE BALLS THAT YOU HAVE TESTIFIED TO
HERE IN COURT; ISN'T THAT CORRECT?
A THAT IS CORRECT.
Q NOW, IF AS A SCIENTIST, SIR, YOU ARE SUPPOSED TO
DOCUMENT EVERYTHING THAT YOU SEE CONTEMPORANEOUS WITH THE
OBSERVATION, AND PHOTOGRAPHY IS ONE WAY OF DOING THAT.
WOULDN'T IT HAVE BEEN VERY IMPORTANT, IN VIEW OF THE
FACT THAT YOU MADE NO NOTES AT THE TIME OF YOUR OBSERVATION, TO
TAKE PHOTOGRAPHS OF ALL OF IT, IF ONLY TO REFRESH YOUR OWN MEMORY
AS TO WHAT YOU SAW?
A IN THIS CASE IT WASN'T NECESSARY. I CAN REMEMBER
THOSE SPOTS THAT I SAW VERY DISTINCTLY AND I KNEW THAT
PHOTOGRAPHS WERE BEING TAKEN AND I COULD SEE NO POINT IN WRITING
DOWN A NOTE THAT SAYS I'M LOOKING AT LITTLE RED BALLS. I
REMEMBER THEM VERY WELL.
Q WELL, SIR, ISN'T IT TRUE THAT IN YOUR REPORT YOU
WROTE THAT THE OUTER STAIN WAS A SWIPE, CORRECT?
A CORRECT.
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED. EXCUSE ME.
ASKED AND ANSWERED SEVERAL TIMES.
THE COURT: OVERRULED.
Q BY MS. CLARK: AND THEN YOU TESTIFIED, I BELIEVE
YESTERDAY, THAT YOU LOOKED AT PHOTOGRAPHS AND BASED ON YOUR
REEXAMINATION OF THE PHOTOGRAPHS DETERMINED THAT IN FACT IT WAS A
COMPRESSION AND SO TESTIFIED?
DO YOU RECALL THAT, SIR?
A YES, I DO.
Q IN THAT REGARD THEN, SIR, HAVING HAD THE PHOTOGRAPHS
TO REVIEW, YOU ACTUALLY CHANGED YOUR OPINION AS TO THE APPEARANCE
OF A STAIN FROM SWIPE TO COMPRESSION; ISN'T THAT TRUE?
MR. NEUFELD: OBJECTION. WE HAVE BEEN OVER THIS SEVERAL
TIMES YESTERDAY.
THE COURT: OVERRULED. IT IS A NEW POINT, COUNSEL.
THE WITNESS: I DID NOT CHANGE MY OPINION. I CHANGED MY
CHARACTERIZATION. IF YOU WANT TO USE SWIPE OR COMPRESSION, THEY
ARE BASICALLY THE SAME THING. THE DIFFERENCE IS A SLIGHT
MARGINAL VARIATION AND THAT IS ALL.
Q BY MS. CLARK: IF THE DIFFERENCE IS A SLIGHT MARGINAL
VARIATION, SIR, WHY DID YOU NOT SAY THAT DURING DIRECT
EXAMINATION WHEN YOU WERE MAKING THE POINT TO THE JURY THAT IN
YOUR OPINION THIS WAS A COMPRESSION AND NOT A --
THE COURT: SUSTAINED. SUSTAINED.
Q BY MS. CLARK: NEVERTHELESS, SIR, YOUR DOCUMENTATION
OF THE APPEARANCE OF THE OUTER STAIN WAS WHAT LED YOU TO MAKE A
DIFFERENT CHARACTERIZATION OF THE APPEARANCE OF THAT STAIN; IS
THAT CORRECT?
A IT IS NOT A DIFFERENT CHARACTERIZATION. IT IS SIMPLY
AN ADJECTIVE ADDING SWIPE MAKES IT A LITTLE BIT MORE ON ONE SIDE
THAN ANOTHER.
DEPENDING UPON WHICH PHOTOGRAPH I LOOK AT, I COULD
USE EITHER TERM. THERE IS REALLY NO DIFFERENCE BETWEEN THEM AS
FAR AS THAT PARTICULAR STAIN IS CONCERNED.
Q DID YOU KNOW --
A ANY TERM YOU LIKE I WILL AGREE WITH.
Q WOULD YOU AGREE AT THIS POINT, SIR, IT COULD BE A
SWIPE, IT COULD BE A COMPRESSION AND IT REALLY MAKES NO
DIFFERENCE?
IS THAT YOUR TESTIMONY?
A THAT IS CORRECT.
Q NEVERTHELESS, IT WAS THE PRESENCE AND THE USE OF THE
PHOTOGRAPHS THAT YOU TOOK TO DOCUMENT YOUR OBSERVATIONS AT THE
TIME OF THE EXAMINATION THAT CAUSED YOU TO TAKE A STEP FARTHER
AWAY FROM SWIPE AND TESTIFY THAT IT WAS COMPRESSION, WAS IT NOT?
A NO.
Q THEN WHAT WAS IT, SIR, THAT CHANGED YOUR MIND FROM
THE TIME YOU WROTE YOUR REPORT INDICATING IT WAS A SWIPE TO THE
TIME YOU TESTIFIED AND INDICATED ON DIRECT EXAMINATION IT WAS A
COMPRESSION?
A IT WAS A PHOTOGRAPH DR. LEE TOOK.
Q THE PHOTOGRAPH DR. LEE TOOK.
AND THERE ARE NO OTHER PHOTOGRAPHS THAN THE ONE TO
DOCUMENT YOUR OBSERVATION OF THE LITTLE BALLS THAN THE ONE LITTLE
BALL YOU BROUGHT INTO COURT TODAY -- YESTERDAY; IS THAT CORRECT?
MR. NEUFELD: OBJECTION. ASKED AND ANSWERED NOW MANY
TIMES.
THE COURT: OVERRULED.
LAST QUESTION ON THIS LINE.
THE WITNESS: THAT IS CORRECT.
Q BY MS. CLARK: NOW, SIR, IF YOU AND DR. LEE ARE OF
EQUAL STATURE IN THE FIELD OF BLOOD SPATTER INTERPRETATION, WHAT
WAS YOUR ROLE THERE?
WHY DO WE NEED TWO? WHY DID YOU NEED TO HAVE TWO
PEOPLE PRESENT TO EXAMINE THE SOCK?
THE COURT: SUSTAINED. SUSTAINED.
Q BY MS. CLARK: CAN YOU TELL US WHAT YOUR ROLE WAS --
STRIKE THAT.
DR. LEE, IN YOUR OPINION, IS AS QUALIFIED AS YOU ARE
IN BLOOD SPATTER INTERPRETATION, CORRECT?
A YES, I WOULD SAY THAT.
Q AND HE WAS EXAMINING THAT SOCK UNDER THE MICROSCOPE
ALONG WITH YOU, CORRECT?
A THAT'S CORRECT.
Q AND HE WAS DIRECTING WHAT PHOTOGRAPHS SHOULD BE
TAKEN; IS THAT CORRECT?
A WE WERE DECIDING BETWEEN OURSELVES WHICH PHOTOGRAPHS
SHOULD BE TAKEN; HE MERELY TOOK THEM.
Q OKAY.
THEN CAN YOU TELL US, SIR, FOR WHAT -- WHAT WAS YOUR
ROLE IN THE EXAMINATION ON APRIL 2ND IF THE TWO OF YOU WERE OWE
EQUALLY QUALIFIED LOOKING AT THAT SAME PAIR OF SOCKS?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE AND IRRELEVANT.
THE COURT: OVERRULED.
THE WITNESS: I WAS THERE AT THE REQUEST OF ATTORNEYS TO
CONDUCT AN EXAMINATION WITH DR. LEE. I HAVE NO IDEA WHY THEY
ASKED FOR TWO. THEY MIGHT HAVE ASKED FOR THREE, BUT THAT IS NOT
SOMETHING THAT I AM PRIVY TO. I DON'T KNOW WHY THEY ASKED FOR
TWO.
Q BY MS. CLARK: ALL RIGHT.
YOUR LAB -- YOUR WORK IS NOT MONITORED BY ANY
INDEPENDENT AGENCY; IS THAT CORRECT?
A NOT THAT I AM AWARE OF, NO.
Q AND I THINK THAT YOU AGREE, SIR, THAT THE ONLY CHECK
OR BALANCE FOR QUALITY ASSURANCE ON YOUR WORK IS THAT AN OPPOSING
SIDE MAY READ YOUR REPORT OF YOUR CONCLUSIONS AND DISAGREE?
MR. NEUFELD: OBJECTION, YOUR HONOR, ARGUMENTATIVE.
THE COURT: OVERRULED.
THE WITNESS: WELL, THEY MAY READ MY REPORT AND THEY MAY
DISAGREE OR THEY MAY AGREE WITH ME. THEY DON'T DISAGREE BY
READING THE REPORT. IT DEPENDS UPON WHAT THEY FEEL.
MS. CLARK: I'M SORRY.
(BRIEF PAUSE.)
Q BY MS. CLARK: RIGHT, BUT THE ONLY CHECK OR BALANCE
FOR QUALITY ASSURANCE THAT YOU HAVE, SIR, IS WHEN THE OTHER SIDE
READS YOUR REPORT? THEY MAY AGREE OR DISAGREE, BUT THAT IS YOUR
CHECK OR BALANCE, CORRECT?
A YOU COULD CALL IT THAT, YES.
Q THERE ARE NO VALIDATION STUDIES ADMINISTERED TO YOU
BY OUTSIDE AGENCIES; IS THAT CORRECT?
A THAT'S CORRECT.
Q NO BLIND STUDIES ARE ADMINISTERED TO YOUR LABORATORY
BY ANOTHER AGENCY OR ORGANIZATION; IS THAT CORRECT?
A NOT BY OTHER AGENCIES, CORRECT.
Q AND UNLIKE CELLMARK WHERE THEY HAVE IN-HOUSE BLIND
STUDIES TO TEST THEIR QUALITY CONTROL OR THE ACCURACY OF THEIR
TESTING METHODS AND RESULTS, YOU HAVE NO SUCH BLIND?
MR. NEUFELD: OBJECTION, ASSUMING FACTS NOT IN EVIDENCE.
THE COURT: OVERRULED.
MR. NEUFELD: AND ARGUMENTATIVE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MS. CLARK: SIR, HAVE YOU HEARD TESTIMONY FROM A
REPRESENTATIVE OF CELLMARK THAT THEY DO CONDUCT BLIND STUDIES OF
THEIR OWN TESTING PROCEDURES AND METHODS TO MAKE SURE THAT THEIR
QUALITY CONTROL IS KEPT UP?
MR. NEUFELD: OBJECTION, IRRELEVANT AND ALSO --
THE COURT: SUSTAINED.
MR. NEUFELD: OKAY.
Q BY MS. CLARK: DO YOU HAVE ANY BLIND STUDIES THAT YOU
CONDUCT, SIR, WITHIN YOUR LABORATORY, FOR PURPOSES OF QUALITY
CONTROL?
A YES.
Q AND WHAT IS THAT BLIND STUDY THAT YOU CONDUCT?
A I PREPARE SAMPLES OR WE RECEIVE EVIDENCE, ACTUAL
EVIDENCE, AND MR. KISH AND I REVIEW IT INDEPENDENTLY AND THAT
WOULD BE, IN MY OPINION, A BLIND TEST.
IF WE AGREE, THEN WE HAVE CONDUCTED A VERIFICATION OF
EACH OTHER'S ABILITY TO ARRIVE AT THE SAME CONCLUSION.
Q AND IF YOU DISAGREE DO YOU PUBLISH THE RESULTS, SIR?
A I CAN'T REMEMBER WHEN WE HAVE DISAGREED.
Q SO YOU HAVE ALWAYS AGREED WITH EACH OTHER?
A ON EVIDENCE MATTER, INTERPRETING BLOODSTAIN MATTERS,
WE DISCUSS IT AND WE AGREE, YES.
Q SO IF YOU ALWAYS AGREE WITH EACH OTHER, SIR, IT IS
ONLY BETWEEN THE TWO OF YOU WORKING TOGETHER; IS THAT CORRECT?
A YES.
Q SO IF YOU ALWAYS AGREE, DO YOU CONSIDER THAT TO A
BLIND STUDY THAT IS A CHECK ON YOUR QUALITY CONTROL?
A I SURE DO. I DON'T KNOW WHAT HE IS GOING TO SAY AND
HE DOESN'T KNOW WHAT I AM GOING TO SAY. THAT IS BLIND.
Q I'M SORRY?
A THAT IS A BLIND STUDY.
Q IF YOU SHOULD DISAGREE, THERE IS NO RECORD KEPT OF
THAT SO ANYONE WOULD KNOW?
MR. NEUFELD: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MS. CLARK: YOU KEEP NO RECORDS OF THE TIME YOU
AGREE OR DISAGREE; IS THAT CORRECT?
MR. NEUFELD: OBJECTION. IT ASSUMES FACTS NOT IN EVIDENCE.
HE ALREADY TESTIFIED THAT HE DISAGREED.
THE COURT: COUNSEL, YOU ARE GETTING CLOSE THERE.
SUSTAINED.
PROCEED.
Q BY MS. CLARK: HOW MANY YEARS HAVE YOU BEEN WORKING
WITH MR. KISH, SIR?
A WELL, ACTUALLY HE WORKS WITH ME. I WOULD SAY I THINK
SIX OR SEVEN, SOMETHING LIKE THAT. HE HAS ASSISTED ME WITH MANY
BLOODSTAIN INSTITUTES, SO I COULD GO BACK AND SEE THE FIRST ONE
HE HELPED ME WITH. I THINK IT WAS ABOUT SIX OR SEVEN YEARS AGO.
Q IS HE ON YOUR PAYROLL, SIR?
A YES, HE IS.
Q AND YOU PAY HIS -- IS IT A REGULAR SALARY THAT YOU
PAY HIM OR IS IT CASE BY CASE?
A IT VARIES. IT IS A REGULAR SALARY, BUT BECAUSE I'M
LETTING HIM DO MORE AND MORE CASES INDEPENDENT OF MYSELF AND
SOMEWHAT SEMI-RETIREMENT, YOU MIGHT SAY, I REALLY DO NOT HAVE ANY
FINANCIAL CONTROL OVER SOME OF HIS CASES. SOME OF THEM I DO.
IF THEY COME TO ME AND I ASSIGN THEM TO HIM AND HE
WORKS ON THEM, THEN HE RECEIVES A SUBSTANTIAL AMOUNT OF THE FEE.
Q OKAY.
SO HE IS DEPENDENT ON YOU FOR HIS LIVELIHOOD; IS THAT
CORRECT, SIR?
A YES.
Q AND HE IS THE ONE WHO IS YOUR CHECK OR BALANCE AS TO
WHETHER OR NOT YOU HAVE MADE A CORRECT INTERPRETATION OR NOT; IS
THAT RIGHT?
A YES, YOU COULD SAY THAT.
Q IS THERE ANY LICENSING REQUIRED FOR YOUR LAB, SIR?
A NO.
Q OR MONITORING OF YOUR LAB BY AN INDEPENDENT AGENCY?
A NOT MONITORING AS SUCH, BUT I WAS A MEMBER OF THE BE
NEW YORK STATE CRIME LABORATORY ADVISORY COMMITTEE FOR MANY YEARS
AND THERE ARE FOURTEEN LABORATORIES IN NEW YORK STATE OF WHICH MY
LABORATORY WAS ONE AND THAT WAS A DISCUSSION GROUP MORE THAN
CERTIFICATION OR ANYTHING OF THAT NATURE.
Q RIGHT. YOUR LAB IS NOT CERTIFIED BY ANY AGENCY; IS
THAT CORRECT?
A THAT IS CORRECT.
Q AND THE GROUP THAT YOU JUST SPOKE OF DOES NOT MONITOR
YOUR LAB FOR APPROPRIATE OPERATING METHODS OR PROCEDURES, DOES
IT?
A NO, IT DOES NOT.
Q AND THERE ARE NO REQUIREMENTS THAT YOU PERSONALLY BE
TESTED AT ANY TIME TO PROVE THAT YOU ARE USING A APPROVED METHOD
IN YOUR ANALYSIS OF CASES; ISN'T THAT CORRECT, SIR?
A NOTHING OTHER THAN CROSS-EXAMINATION SUCH AS THIS.
Q AND THAT WOULD DEPEND ON HOW CLOSELY YOU WERE
CROSS-EXAMINED; IS THAT CORRECT?
A HOW DETAILED.
MR. NEUFELD: OBJECTION, ASSUMES A FACT THAT IS NOT IN
EVIDENCE.
THE COURT: OVERRULED.
THE WITNESS: HOW DETAILED; NOT CLOSENESS.
Q BY MS. CLARK: OKAY. I WILL AGREE WITH YOU.
HOW DETAILED THE CROSS-EXAMINATION IS; IS THAT
CORRECT, SIR?
A YES.
Q AND IF THE CROSS-EXAMINER KNOWS VIRTUALLY NOTHING
ABOUT BLOODSTAIN PATTERN INTERPRETATION, THEN THE
CROSS-EXAMINATION WOULD NOT BE VERY DETAILED AT ALL, WOULDN'T YOU
AGREE?
MR. NEUFELD: YOUR HONOR, SPECULATION. IT IS IRRELEVANT.
THE COURT: OVERRULED.
THE WITNESS: WELL, IT IS DIFFICULT TO SAY HOW MUCH AN
ATTORNEY KNOWS ABOUT BLOODSTAIN PATTERN INTERPRETATION. I HAVE
HAD SEVERAL ATTORNEYS ATTEND THE INSTITUTE AND I WOULD LIKE TO
THINK THAT THOSE ATTORNEYS COULD DO A VERY GOOD JOB.
AS YET I HAVE NEVER BEEN CROSS-EXAMINED BY ONE OF MY
FORMER STUDENTS, SO I REALLY DON'T KNOW, BUT THE MORE THEY KNOW,
THE BETTER JOB THEY CAN DO AND IT HELPS ME A GREAT DEAL BECAUSE
THEY DON'T ASK QUESTIONS WHICH MIGHT SEEM LOGICAL BUT ARE
SCIENTIFICALLY INCORRECT.
Q NEVERTHELESS, SIR, THE DEGREE TO WHICH YOU ARE TESTED
BY CROSS-EXAMINATION, SINCE THAT IS THE ONLY MEANS OF YOUR BEING
TESTED FOR YOUR CURRENT KNOWLEDGE OF THE STATE OF THE ART --
MR. NEUFELD: OBJECTION, YOUR HONOR. THAT IS NOT HIS
TESTIMONY.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MS. CLARK: YOU INDICATED THAT THE ONLY WAY BY
WHICH YOU ARE TESTED TO PROVE -- TO SHOW THAT YOU ARE USING
APPROVED METHODS OR SOUND METHODS OF ANALYSIS IS BY THE NATURE OF
THE CROSS-EXAMINATION; IS THAT CORRECT?
A WELL, I WOULD USE THE WORD "CHALLENGED" RATHER THAN
"TESTED," BUT YES, THAT IS CORRECT.
Q IN WHICH CASE YOU ARE ONLY AS CHALLENGED AS THE
CROSS-EXAMINER IS EFFECTIVE; ISN'T THAT CORRECT?
A OR AS THEY WISH TO BE. THEY MAY DECIDE NOT TO ASK
MANY QUESTIONS IF THEY FEEL IT WILL NOT BE TO THEIR ADVANTAGE.
I CAN'T READ THEIR MINDS.
THE COURT: ALL RIGHT. LET'S MOVE ON.
Q BY MS. CLARK: ALL RIGHT.
NOW, IF THE OTHER SIDE, WHATEVER SIDE THAT MAY BE,
DISAGREES WITH YOUR OPINION OR YOUR CONCLUSION, DOES THAT GIVE
YOU SOME INDICATION, SIR, THAT YOUR VIEW MAY BE IN ERROR?
MR. NEUFELD: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
Q BY MS. CLARK: SIR, DO YOU BELIEVE THAT YOU CAN MAKE
MISTAKES?
A CERTAINLY.
Q AND DO YOU THINK THAT -- HAVE YOU EVER DRAWN THE
CONCLUSION THAT YOU HAVE MADE A MISTAKE BASED ON THE OPPOSING
SIDE DISAGREEMENT WITH YOUR CONCLUSION?
A NO, THAT IS NOT THE KIND OF MISTAKE I'M REFERRING TO.
Q WELL, WHAT KIND OF MISTAKE ARE YOU REFERRING TO, SIR?
A WELL, I MADE A MISTAKE YESTERDAY WHEN I HAD THE
REDEYE LAST NIGHT. THAT IS A MISTAKE.
Q I'M SORRY?
A I COULDN'T GET MY AIRLINE RESERVATION LAST NIGHT
BECAUSE I'M HERE TODAY AND IT WAS A MISTAKE TELLING ME WIFE I
WOULD BE HOME THIS MORNING AT TEN O'CLOCK. THAT WAS A MISTAKE.
Q WELL, SIR, I'M TALKING ABOUT YOUR WORK.
HAS IT EVER OCCURRED THAT ANOTHER -- THE OTHER SIDE
HAS DISAGREED WITH YOUR CONCLUSION AND THAT THAT DISAGREEMENT HAS
CAUSED YOU TO REEXAMINE YOUR POSITION AND DETERMINE THAT YOU HAVE
MADE A MISTAKE?
A NO.
Q AND YET YOU HAVE TESTIFIED THAT THE ONLY CHECK OR
BALANCE QUALITY CONTROL, IF YOU WILL, ON YOUR WORK IS WHEN THE
OPPOSING SIDE DISAGREES WITH YOU?
A THAT IS CORRECT.
Q AND YET WHEN THEY DO DISAGREE WITH YOU THAT DOES NOT
CAUSE YOU TO REEXAMINE YOUR WORK AND POSSIBLY CONCLUDE YOU MADE A
MISTAKE?
A I REEXAMINE THE THINGS THAT THEY MAY HAVE BROUGHT UP
AND CONFIRM THAT IN MY OPINION I WAS CORRECT. I AGREE THAT
ANYONE CAN DISAGREE WITH ME. THAT IS THEIR PREROGATIVE.
MS. CLARK: MAY WE APPROACH, YOUR HONOR?
THE COURT: YES. WITH THE COURT REPORTER.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
MR. DARDEN: BEFORE WE DO THAT, YOUR HONOR, MR. CLARKE WILL
BE AVAILABLE AFTER THE LUNCH HOUR.
THE COURT: OKAY.
MR. DARDEN: HE WILL BE AVAILABLE THIS AFTERNOON ON THE
GERDES MOTION.
THE COURT: ALL RIGHT.
MS. CLARK: LIFE MAGAZINE ARTICLE, YOUR HONOR. I HAVE A
COPY OF IT COMING TO COUNSEL NOW.
(BRIEF PAUSE.)
MR. NEUFELD: WHY DON'T YOU CUT TO THE CHASE AND TELL US
WHAT YOU ARE GOING TO USE IT ON?
MS. CLARK: SURE, SURE. RIGHT HERE, (INDICATING).
"I'M IN THE BUSINESS OF GIVING HOPE TO THE
HOPELESS. NO ONE CAN CONTRADICT ME. I HAVE TO BE VERY, VERY
CAREFUL."
(BRIEF PAUSE.)
THE COURT: I'M TRYING TO READ IT, COUNSEL.
MR. NEUFELD: I'M SORRY.
MS. CLARK: AND THEN, YOUR HONOR, IT GOES ON TO THE BOTTOM
PARAGRAPH AS WELL, (INDICATING).
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. NEUFELD: MISS CLARK, WHICH QUOTES DID YOU WANT TO USE?
MS. CLARK: "I'M IN THE BUSINESS OF GIVING HOPE TO THE
HOPELESS AND SINCE NOBODY IN THE WORLD CAN CONTRADICT ME, I HAVE
TO BE VERY, VERY CAREFUL," AND THEN DOWN HERE, (INDICATING), "I
DON'T WANT TO SAY I'M ANTI-JURY, I'M JUST ANTI THAT JURY. I HAVE
NO FAITH IN THE JURY SYSTEM LEFT. I ONLY WANT A JUDGMENT. I DO
MY NAUGHTY THINGS AND I'M THINKING OF DOING TWELVE OF THEM RIGHT
NOW," AND THAT IS IN RESPONSE TO THE JURY VERDICT IN THE JEAN
HARRIS CASE WHERE THE DEFENDANT WAS, THAT SHE ACCIDENTALLY SHOT,
DR. SCARPETTA -- NOT SCARPETTA.
THE COURT: SHOENHOWER?
MR. NEUFELD: HITANOWER, T-A-N-O-W-E-R.
THE COURT: T-A-R-N-O-W-E-R.
MS. CLARK: TARNOWER, THAT IS IT, AND THE JURY REJECTED HIS
OPINION AND VOTED GUILTY OF MURDER AND HIS RESPONSE TO THEIR
REJECTION OF HIS THEORY ON HIS TESTIMONY TO SUPPORT THEIR THEORY
THAT IT WAS AN ACCIDENT, BECAUSE THE CRIME SCENE RECONSTRUCTION
WAS IMPORTANT TO THAT THEORY, WAS, YOU KNOW, THE HECK WITH
JURIES.
MR. NEUFELD: ALL RIGHT.
HIS OPINION ABOUT JURY SYSTEMS AND ABOUT A PARTICULAR
JURY TRIAL HE WAS INVOLVED IN HAS ABSOLUTELY NO RELEVANCE TO HIS
IMPEACHMENT IN THIS CASE AT ALL, YOUR HONOR.
HIS REACTION -- AND THE FACT A JURY DISAGREED WITH
HIM AND OBTAINED A VERDICT HAS NO RELEVANCE TO HOW A JURY IN THIS
CASE SHOULD TREAT HIS EXPERT TESTIMONY.
WE WOULD NEVER -- WE HAD A SITUATION, YOUR HONOR,
WHERE YOU COULD IMPEACH AN EXPERT WITNESS BY SHOWING THAT IN THE
ANOTHER CASE WHERE HE OFFERED EXPERT TESTIMONY THE JURY RETURNED
A CONTRARY VERDICT, IT IS IRRELEVANT.
IT IS IRRELEVANT, IT IS IMMATERIAL AND CERTAINLY
UNDER 352 ITS PREJUDICIAL IMPACT WOULD CERTAINLY OUTWEIGH ANY
PROBATIVE VALUE.
HIS ANGER OR RESENTMENT AND WHAT A JURY DID IN
ANOTHER CASE IS SIMPLY BEING OFFERED HERE TO TRY AND POISON THIS
JURY TOWARD HIM TO SHOW THAT HE DISLIKED ANY PARTICULAR JURY. IT
HAS NO RELEVANCE TO THE CROSS-EXAMINATION HERE.
AS TO THE OTHER QUOTE --
MR. DARDEN: THE VOLUME IS TOO LOUD.
MR. NEUFELD: SORRY.
AS TO ANOTHER QUOTE, YOUR HONOR, WHERE IT SAYS, "I'M
IN THE BUSINESS OF GIVING HOPE TO THE HOPELESS," I ACTUALLY KNOW
THAT HE IS NOT THE AUTHOR OF THAT QUOTE, THAT EVEN THOUGH IT
APPEARS IN QUOTATION MARKS, IT IS ACTUALLY A QUOTE THAT WAS TAKEN
>FROM A PROSECUTOR WHO HAD RETAINED HIM.
AND I HAVE DISCUSSED THIS QUOTE WITH HIM IN THE PAST
AND HE HAS PROOF, WHICH WE CAN -- I CAN PRODUCE TO THE COURT, IN
FACT, THAT WILL SHOW THAT HE IS NOT THE SOURCE OF THIS QUOTE,
THAT THE QUOTE WAS ACTUALLY MADE BY A PROSECUTOR WHO HAD RETAINED
HIM.
THE COURT: HOW DO YOU KNOW THAT?
MR. NEUFELD: BECAUSE WE HAVE A QUOTE BY THE PROSECUTOR AT
A DATE PRIOR IN TIME TO THIS ARTICLE WHERE HE TALKS ABOUT, YOU
KNOW, THAT "I'M IN THE BUSINESS OF" -- NOT MAC DONELL --
PROSECUTOR TALKS ABOUT GIVING HOPE TO THE HOPELESS, AND THAT IS
WHAT MAC DONELL CAN DO FOR ME.
MS. CLARK: WHAT ABOUT THE PART "NO ONE CAN CONTRADICT ME"
? THAT DOESN'T SOUND LIKE A PROSECUTOR SAID THAT.
MR. NEUFELD: I DIDN'T ASK HIM ABOUT THAT. I CAN'T MAKE A
REPRESENTATION ABOUT THAT, YOUR HONOR.
I THINK THIS OTHER THING AT THE BOTTOM IS JUST
CLEARLY PREJUDICIAL AND ABSOLUTELY NO PROBATIVE VALUE.
MS. CLARK: MAY I BE HEARD?
THE COURT: YES.
MS. CLARK: WITH RESPECT TO THE BOTTOM PARAGRAPH, YOUR
HONOR, THIS GOES TO THE WITNESS' ATTITUDE, BIAS AND CREDIBILITY
DIRECTLY.
HE HAS ASSERTED THAT THERE IS NO CHECK OR BALANCE ON
HIM.
THE COURT: ALL RIGHT.
COUNSEL, HERE IS THE PROBLEM WITH THAT, THOUGH. THEN
WE HAVE TO GO IN THE FACTS AND CIRCUMSTANCES AS TO WHY HE
DISAGREES WITH THE JEAN HARRIS JURY.
MS. CLARK: I REALLY DISAGREE, YOUR HONOR, AND HE HAS BEEN
CROSS-EXAMINED ON THIS BEFORE AND IT CERTAINLY DIDN'T TAKE MORE
THAN TWO MINUTES. IT IS A VERY SIMPLE THING.
THE JURY CAME BACK WITH MURDER. HE TESTIFIED IN
SUPPORT OF AN ACCIDENTAL SHOOTING. THAT IS IT. AND HE THINKS
THE JURY IS WRONG PERIOD.
I MEAN, THIS DOESN'T GO VERY FAR. THAT IS ABOUT TWO
QUESTIONS.
THE COURT: ALL RIGHT. THAT IS --
MS. CLARK: THAT IS ALL IT TAKES. I DON'T SEE A 352 ISSUE
THERE.
BUT CERTAINLY WHEN A MAN SAYS THAT THE ONLY THING
THAT IS A CHECK OR BALANCE IS A DISAGREEMENT FROM THE OPPOSING
SIDE, ESPECIALLY FROM THE JURY, THE FACT THAT HE ULTIMATELY
REJECTS EVERYTHING, I THINK IT IS VERY HAD PROBATIVE FOR THIS
JURY TO ASSESS HIS CREDIBILITY.
MR. NEUFELD: UNDER 352 WE WILL TAKE UP A LOT OF TIME. WE
WILL RELITIGATE THE JEAN HARRIS CASE. HE WILL COME FORWARD AND
BRING OUT ALL THE EVIDENCE THAT SUPPORTS HIS POSITION. IT IS
ABSURDITY AND IS REALLY NOT RELEVANT HERE.
THE COURT: ALL RIGHT.
MS. CLARK: YOUR HONOR, I WOULD LIKE TO SHOW THE COURT THE
TRANSCRIPT IN THE BRIGGS CASE WHERE HE WAS CONFRONTED WITH THIS
ARTICLE BEFORE AND THE QUESTION AND THE ANSWER COULDN'T HAVE
TAKEN MORE THAN THREE MINUTES.
MR. NEUFELD: THE LAWYER WHO CALLED HIM DIDN'T DO A PROPER
JOB.
MS. CLARK: THERE IS NO 352 ISSUE WITH RESPECT TO THIS. HE
HAS HIS VIEW.
AND IF COUNSEL WANTS TO BRING OUT ON REDIRECT THAT
HIS VIEW IS DIFFERENT THAN THE JURY'S, THIS IS NOT GOING TO
REQUIRE RELITIGATION.
THIS GOES TO HIS ATTITUDE; NOT THE PROOF OF THE
MATTER ASSERTED.
MR. NEUFELD: JUST --
THE COURT: HOLD ON.
I AGREE WITH YOU, IT DOES GO TO HIS ATTITUDE AND IT
SAYS A LOT.
THE PROBLEM IS I'M NOT GOING TO RELITIGATE THE JEAN
HARRIS CASE.
THE 352 TO THE "TWELVE NAUGHTY THINGS" IS SUSTAINED.
THE OBJECTION IS OVERRULED TO THE "HOPELESS"
BUSINESS.
MR. NEUFELD: OKAY.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
MS. CLARK: MAY I HAVE A MOMENT, YOUR HONOR?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MS. CLARK: ALL RIGHT.
MR. MAC DONELL, YOU INDICATED, DID YOU NOT, THAT YOU
HAVE BEEN PAID 10,500 FOR YOUR WORK THUS FAR?
A THAT IS CORRECT.
Q AND HOW MUCH ARE YOU PAID PER DAY TO TESTIFY?
A ORDINARILY IF I AM OUT OF THE LABORATORY FOR A DAY
OVERNIGHT I CHARGE $3,000, BUT IN A CASE OF THIS TYPE WHERE I
HAVE TRAVELED SO MANY TIMES AND BEEN AWAY FROM THE LABORATORY SO
MANY HOURS, I CANNOT CHARGE A RATE LIKE THAT.
I REALLY DON'T KNOW HOW MUCH TIME I WILL CHARGE FOR.
I DO NOT CHARGE ON A HOURLY RATE WHEN I'VE SPENT THIS MUCH TIME.
I WILL CHARGE A FAIR RATE FOR THE AMOUNT OF TIME AND EFFORT I
HAVE PUT INTO CASE.
Q ALL RIGHT.
YOU, AS OF APRIL 2ND, 1995, HAD BEEN PAID $10,500; IS
THAT CORRECT?
A THAT INCLUDES SOME TRAVEL EXPENSES AND MY ASSOCIATE
AND OTHER THINGS. THAT IS NOT JUST A BASIC PROFIT SO TO SPEAK.
Q AND THAT WAS UP TO THE POINT OF YOUR EXAMINATION OF
APRIL 2ND, 1995, THAT YOU HAD BEEN PAID 10,500; IS THAT CORRECT,
SIR?
A I BELIEVE SO, YES.
Q AND SINCE THAT TIME HAVE YOU SUBMITTED ANY FURTHER
BILLS?
A NO. I HAVEN'T HAD TIME.
Q AND YOU HAVE DONE FURTHER WORK, THOUGH, NEVERTHELESS,
HAVE YOU NOT?
A YES, I HAVE.
Q YOU HAVE DONE SEVERAL DAY'S WORTH OF WORK, WOULD THAT
BE FAIR TO STATE?
A YES, AND I HAVE BEEN HERE THREE TIMES I THINK SINCE
THEN.
Q AND YOU HAVE BEEN HERE FOR THE PURPOSE OF YOUR
TESTIMONY HOW MANY DAYS NOW?
A I WOULD SAY MAYBE TEN DAYS, EIGHT OR TEN DAYS, VERY
CLOSE TO THAT. I CAN LOOK IT UP.
I WAS HERE FROM THE 7TH TO THE 12TH, THE 16TH TO THE
20TH, THE 25TH TO THE 28TH AND I'M HERE AGAIN, SO THAT WOULD BE
--
Q I'M SORRY, SIR. 7TH TO THE 12TH OF JULY?
A EXCUSE ME. THAT IS -- THAT WAS ANOTHER MEETING.
THAT WAS IN PHILADELPHIA.
I CAME THE 16TH TO THE 20TH. THAT WOULD BE FIVE
DAYS, AND THE 25TH TO THE 28TH, FOUR DAYS, AND I'VE BEEN HERE TWO
DAYS, SO THAT WOULD BE ELEVEN DAYS.
Q ALL RIGHT.
AND ORDINARILY IN THE AVERAGE CASE YOU CHARGE 3000 A
DAY?
A THAT IS CORRECT.
Q SO IF YOU WERE TO CHARGE --
A THAT IS TO STAY OVERNIGHT. THAT WOULD BE TWO DAYS.
Q ALL RIGHT.
AND IN THIS CASE YOU HAVE ELEVEN DAYS DOWN, CORRECT?
A THAT'S CORRECT.
Q SO IF THIS WERE YOUR AVERAGE CASE, YOU WOULD HAVE
CHARGED 33 -- THIS IS TERRIBLE. THIS IS TERRIBLE. ROUGHLY
$18,000 FOR YOUR WORK THUS FAR IF IT HAD BEEN THE AVERAGE CASE,
CORRECT?
A NO.
MR. NEUFELD: OBJECTION.
THE WITNESS: IT WOULD HAVE BEEN SEVERAL --
THE COURT: WAIT, WAIT, WAIT.
MR. FAIRTLOUGH, KEEP YOUR VOICE DOWN. IF I CAN HEAR
YOU, IT IS WAY TOO LOUD.
MR. FAIRTLOUGH: YES, YOUR HONOR.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MS. CLARK: IF YOU WERE CHARGING YOUR AVERAGE FEE
IN THE AVERAGE CASE AT $3,000 PER DAY AFTER ELEVEN DAYS BEING
PRESENT, HOW MUCH WOULD THAT BE?
MR. NEUFELD: OBJECTION.
THE COURT: SUSTAINED. HE SAID HE IS NOT GOING TO BILL ON
HIS NORMAL SCHEDULE.
Q BY MS. CLARK: HOW DO YOU INTEND TO BILL, SIR?
A I'M NOT REALLY SURE. I MUST CONFESS I HAVE NEVER HAD
A CASE THAT HAS BEEN OF THIS TYPE. I WILL BE FAIR AND NOT DO
ANYTHING THAT WILL COST MORE MONEY.
I'VE SAVED THE DEFENSE CONSIDERABLE MONEY BY USING
GOLDEN OPPORTUNITIES, AIR FLIGHTS BOOKED AT $300.00 A TRIP
INSTEAD OF THE FIRST TWO WERE $1409 A TICKET. I THINK I'VE SAVED
THEM $3300 ON THAT ALONE.
I'M NOT TRYING TO MAKE A PROFIT, JUST A REASONABLE
WAGE.
MS. CLARK: YOUR HONOR, THERE WOULD BE AN OBJECTION, MOTION
TO STRIKE AS NONRESPONSIVE.
THE COURT: OVERRULED.
Q BY MS. CLARK: MR. MAC DONELL, I'M ATTEMPTING TO ASK
YOU NOW WHAT YOU INTEND TO BILL THE DEFENSE.
CAN YOU ANSWER THAT QUESTION, SIR?
A NOT AT THIS POINT.
Q DO YOU INTEND TO BILL THEM AT FIFTY PERCENT OF YOUR
NORMAL RATE?
MR. NEUFELD: OBJECTION. ASKED AND ANSWERED, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: I REALLY DON'T KNOW. I HAVE NEVER HAD A CASE
LIKE HIS. I WILL BE FAIR AND CHARGE THEM WHAT I THINK THE AMOUNT
OF TIME I PUT IN WOULD HAVE BEEN HAD I BEEN IN MY LABORATORY.
I DO NOT CHARGE A RATE EVERYDAY BECAUSE I DON'T SPEND
EIGHT HOURS A DAY.
Q BY MS. CLARK: MR. MAC DONELL ARE YOU ATTEMPTING TO
CONVEY TO THIS JURY THAT YOU ARE NOT IN THIS FOR THE MONEY?
THE COURT: SUSTAINED.
MR. NEUFELD: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
Q BY MS. CLARK: YOU DO INTEND TO MAKE A PROFIT ON YOUR
WORK IN THIS CASE, DO YOU NOT?
A I HOPE SO YES.
Q SINCE YOU HAVE SPENT AT LEAST ELEVEN DAYS SINCE APRIL
2ND OF 1995, YOU DO INTEND TO MAKE MORE MONEY THAN THE 10,500 YOU
HAVE ALREADY BEEN PAID; ISN'T THAT CORRECT?
A I REALLY DON'T KNOW UNTIL I HAVE SAT DOWN AND
ASSESSED THE TIME I HAVE SPENT. I WOULD SAY THAT IS AN
APPROXIMATION THAT MIGHT BE ACCURATE, BUT I DO NOT WISH TO LIMIT
MY BILL BY STATING IN COURT WHAT I'M GOING TO CHARGE.
I HAVE DONE THAT BEFORE AND THAT IS ALL THE ATTORNEY
WOULD PAY ME BECAUSE UNDER OATH I SAID I'M GOING TO CHARGE
$400.00 MORE AND IT TURNED OUT TO BE 550 OR SOMETHING AND THEY
WOULDN'T PAY ME THE EXTRA 150, SO THAT IS WHY I SAY I WILL BE
FAIR, BUT I DON'T WANT TO COMMIT MYSELF TO SOMETHING AND THEN
FIND OUT I HAVE TO LIVE WITH IT AND FEEL I DIDN'T GET A FAIR
PRICE.
Q ALL RIGHT.
DO YOU FEEL THAT YOU WILL BILL AT LEAST 10,000 MORE
FOR THE SERVICES YOU HAVE RENDERED?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED. HE SAID HE --
THE COURT: OVERRULED.
THE WITNESS: AS FAR AS THE AMOUNT OF EXPENSES GO ON TOP OF
WHAT I HAVE DONE, I WOULD SAY THAT IS APPROXIMATELY CLOSE.
Q BY MS. CLARK: TO THE MINIMUM THAT YOU WILL BILL?
A IT MIGHT EXCEED IT. I DON'T KNOW.
THE COURT: ALL RIGHT. LET'S MOVE ON.
Q BY MS. CLARK: SIR, YOU INDICATED THAT YOU ARE A NEW
YORK STATE CRIME LAB BOARD MEMBER?
A I WAS.
Q FOR THE ADVISORY COMMITTEE?
A I WAS, YES.
Q ISN'T IT TRUE, SIR, THAT YOU LAST ATTENDED A MEETING
OF THAT ADVISORY COMMITTEE IN 1982?
A THAT IS PROBABLY RIGHT. THEY QUIT SENDING ME THE
NOTICES OF THE MEETING AND SO I COULDN'T GO.
Q AND YOU WERE NOT INVOLVED IN QUALITY CONTROL; ISN'T
THAT CORRECT?
A THAT'S CORRECT.
Q NOW, AT THIS POINT, SIR, WITH THE ONE PHOTOGRAPH OF
THE ONE BALL THAT YOU HAVE SHOWN US, AT THIS POINT ALL WE HAVE IS
YOUR MEMORY AND YOUR TESTIMONY TO RELY UPON FOR THE APPEARANCE OF
ALL THE OTHER LITTLE BALLS, THE SIX OR SEVEN THAT YOU HAVE SEEN;
IS THAT CORRECT?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE AND ASKED AND
ANSWERED THIS SUBJECT SIX TIMES.
THE COURT: SUSTAINED.
MS. CLARK: MAY WE APPROACH, YOUR HONOR?
THE COURT: PROCEED.
MS. CLARK: NO, NOT ON THE QUESTION. MAY WE APPROACH?
THE COURT: YES.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
MS. CLARK: COUNSEL'S REPEATED SPEAKING OBJECTIONS WHICH
HAVE BEEN VERY LOUD AND VERY VOCIFEROUS HAVE GONE UNCHECKED BY
THE COURT THUS FAR, ALTHOUGH THE COURT HAS WARNED COUNSEL.
THE COURT: I WARNED HIM IN FRONT OF THE JURY. THIS IS A
PRETTY SEVERE SANCTION, I THINK.
MS. CLARK: AND THE PEOPLE ARE ASKING THAT COUNSEL BE
ADMONISHED TO REFRAIN FROM THESE SPEAKING OBJECTIONS. I THINK IT
IS VERY UNFAIR. I THINK IT IS DELIBERATELY DISRUPTIVE.
IT HAS REQUIRED US TO STEP BACK AND REGROUP A NUMBER
OF TIMES AND THAT IS WHY THE "ASKED AND ANSWERED" OBJECTIONS ARE
PARTICULARLY UNFAIR WHEN WE ARE BEING PRECLUDED FROM GETTING THE
ANSWER BECAUSE OF COUNSEL'S REPEATED SPEAKING OBJECTIONS WHICH
ARE LENGTHY AND LOUD.
THE COURT: ALL RIGHT.
YOUR REQUEST IS CONSIDERED. I HAVE ALREADY
ADMONISHED MR. NEUFELD TO -- REGARDING HIS OBJECTIONS.
MR. NEUFELD: YOUR HONOR, GUIDANCE ON ONE THING BECAUSE SHE
IS RAISING AN ISSUE IN POINT.
AM I NOT ALLOWED TO SAY, "OBJECTION, HEARSAY" OR
"OBJECTION, ASKED AND ANSWERED"? AM I ONLY ALLOWED TO SAY
"OBJECTION"?
THE COURT: YOU ARE ALLOWED TO STATE THE LEGAL GROUNDS.
MR. NEUFELD: IS "ASKED AND ANSWERED" A LEGAL GROUND? THAT
IS ALL I'M ASKING. I WON'T DO IT AGAIN.
THE COURT: IT IS IN THE COMMON PARLANCE HERE, ALTHOUGH IT
IS NOT TECHNICALLY ASKED.
MS. CLARK: IT IS "ASKED AND ANSWERED SIX TIMES NOW" AND
"HOW MANY TIMES DO WE HAVE TO GO OVER THIS?"
THE COURT: I KNOW. I'VE ALREADY ADMONISHED HIM ONCE IN
FRONT OF THE JURY, MISS CLARK. THAT IS A PRETTY SEVERE SANCTION.
MR. NEUFELD: OKAY.
MS. CLARK: IT IS ONE THE PEOPLE HAVE SUFFERED A NUMBER OF
TIMES.
THE COURT: YES, IT IS.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: ALL RIGHT. THANK YOU, COUNSEL.
PROCEED.
Q BY MS. CLARK: AT THIS POINT, IN VIEW OF THE FACT
THAT WE HAVE NO PHOTOGRAPH OF THE SIX OR SEVEN OTHER LITTLE
BALLS, WE HAVE ONLY YOUR TESTIMONY TO RELY ON; IS THAT CORRECT,
SIR?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE, ASKED AND ANSWERED.
THE COURT: OVERRULED.
SUSTAINED.
MS. CLARK: I DIDN'T GET AN ANSWER LAST TIME.
THE COURT: I HAVE SUSTAINED THE OBJECTION, COUNSEL.
Q BY MS. CLARK: SIR, IS IT YOUR TESTIMONY THAT WE RELY
ON RIGHT NOW WITH RESPECT TO THE APPEARANCE OF HOW THOSE OTHER
LITTLE BALLS LOOKED, YOUR VERBAL DESCRIPTION?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED.
THE COURT: OVERRULED. THAT IS A DIFFERENT QUESTION.
YOU CAN ANSWER THE QUESTION.
THE WITNESS: APPARENTLY SO.
Q BY MS. CLARK: AND SIR, YOU CANNOT SAY WHEN THOSE
LITTLE BALLS GOT ONTO THE -- THAT INNER SURFACE BEFORE YOUR
EXAMINATION ON APRIL 2ND, 1995; ISN'T THAT TRUE?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED YESTERDAY.
THE COURT: OVERRULED.
THE WITNESS: THAT'S TRUE.
Q BY MS. CLARK: AND YOU CANNOT SAY THAT THE
COMPRESSION STAIN THAT OCCURRED ON THE OUTER SURFACE OF THE SOCK
WAS MADE AT THE SAME TIME THAT THE LITTLE BALLS GOT ONTO THE
INNER SURFACE ON THE OTHER OPPOSITE INNER SIDE?
A I CAN PUT A LIMIT ON IT, YES.
Q BUT YOU CANNOT SAY THAT THEY OCCURRED AT THE SAME
TIME, CAN YOU, SIR?
A NO, THEY COULDN'T HAVE OCCURRED AT THE SAME TIME.
ONE HAD TO PRECEDE THE OTHER. IF -- MAYBE BY JUST A SECOND OR A
FRACTION OF A SECOND, BUT THE INSIDE DID NOT OCCUR -- ON SURFACE
3 DID NOT OCCUR BEFORE 1 AND 2.
Q AND YOU CANNOT SAY EXACTLY WHEN IT OCCURRED AFTER THE
OUTER COMPRESSION STAIN WAS MADE; ISN'T THAT CORRECT, SIR?
A THAT'S CORRECT.
Q AND YOU CANNOT EVEN TELL THIS JURY THAT THOSE LITTLE
BALLS ON THE INNER SURFACE ARE ASSOCIATED WITH THE OUTER
COMPRESSION STAIN; ISN'T THAT CORRECT?
A I CONCLUDE THAT THEY WERE.
Q BUT YOU CANNOT TELL THIS JURY THAT THEY WERE
ABSOLUTELY ASSOCIATED WITH THE SAME OUTER STAIN; ISN'T THAT
CORRECT?
A THAT IS CORRECT.
Q NOW, SIR, JUST WITH RESPECT TO THE OUTER COMPRESSION
STAIN OR SWIPE, EITHER ONE THAT YOU SAY IT NOW CAN BE, YOU CANNOT
EXCLUDE THE POSSIBILITY, CAN YOU, THAT THE STAIN WAS MADE DURING
THE COMMISSION OF THE MURDER AT BUNDY; ISN'T THAT CORRECT?
MR. NEUFELD: OBJECTION. ASKED AND ANSWERED YESTERDAY.
THE COURT: SUSTAINED. THAT QUESTION WAS ASKED YESTERDAY.
Q BY MS. CLARK: SIR, YOU CANNOT EXCLUDE THE
POSSIBILITY THEN THAT THAT OUTER COMPRESSION OR SWIPE STAIN WAS
MADE BY MAKING CONTACT WITH THE STEP COVERED WITH THE BLOOD OF
NICOLE BROWN; ISN'T THAT CORRECT?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: THAT IS CORRECT.
Q BY MS. CLARK: YOU CANNOT EXCLUDE THE POSSIBILITY
THAT THAT OUTER COMPRESSION OR SWIPE STAIN ON THE SOCK WAS MADE
AT THE TIME OF THE MURDER AS THE MURDERER STEPPED NEAR THE NECK
OF NICOLE BROWN; ISN'T THAT CORRECT?
A WELL, THE NECK -- IT IS POSSIBLE, YES, BUT I WOULD
SOONER THINK YOUR EXAMPLE YESTERDAY OF A THUMB OR SOMETHING THAT
STICKS OUT WOULD BE MORE LIKELY. THE NECK WOULD BE TOO WIDE AN
AREA OF BLOOD STAINING TO LIMIT THE TRANSFER TO THAT SIZE STAIN.
I MEAN IT MIGHT BE POSSIBLE, BUT I WOULD AGREE MORE
WITH A THUMB OR SOMETHING THAT STICKS OUT.
Q BY MS. CLARK: THEN YOU WOULD AGREE, SIR, THAT IT
WOULD BE MORE PROBABLE THAT IT WOULD BE THE THUMB OR BLOODY HAND
OF NICOLE BROWN THAT COULD HAVE COME IN CONTACT WITH THE SOCK TO
CREATE THAT COMPRESSION STAIN; IS THAT CORRECT?
THE COURT: SUSTAINED. SUSTAINED.
SPECULATION, COUNSEL.
Q BY MS. CLARK: YOU CANNOT EXCLUDE THAT POSSIBILITY
CAN YOU, SIR?
MR. NEUFELD: OBJECTION. ASKED AND ANSWERED YESTERDAY, AND
ARGUMENTATIVE.
THE COURT: OVERRULED.
SUSTAINED.
THE WITNESS: I CANNOT EXCLUDE.
MR. NEUFELD: I'M SORRY.
THE COURT: SUSTAIN THE OBJECTION. IT IS SPECULATION.
PROCEED.
Q BY MS. CLARK: SIR, CAN YOU EXCLUDE THE POSSIBILITY
THAT THE STAIN ON THE OUTER -- THAT THE OUTER STAIN THAT YOU CALL
A COMPRESSION OR A SWIPE COULD HAVE BEEN MADE BY BRUSHING UP
AGAINST THE BLOODY HAND OF NICOLE BROWN?
MR. NEUFELD: SPECULATIVE AND ASKED AND ANSWERED.
THE COURT: THAT WAS ASKED YESTERDAY.
SUSTAINED.
Q BY MS. CLARK: ALL RIGHT.
SIR, YOU WERE NOT PRESENT -- WE SHOWED PHOTOGRAPHS
YESTERDAY OF THE PHENO TESTS DONE WITH THAT SWAB IN THIS PICTURE.
DO YOU RECALL THAT?
A YES.
Q AND WE DISCUSSED THE PERFORMANCE OF THAT PHENO TEST
THAT USES DISTILLED WATER TO PERFORM THE TEST, CORRECT?
A YOU CAN USE DISTILLED WATER, YES.
Q IT WAS APPARENT TO YOU, FROM LOOKING AT THE
PHOTOGRAPH OF THE SAMPLING STEP THAT WAS BEING SHOWN IN THAT
PHOTOGRAPH, THAT THAT WAS THE METHOD THAT WAS BEING USED IN THAT
-- WITH THE SOCK, CORRECT?
MR. NEUFELD: YOUR HONOR --
THE WITNESS: CORRECT.
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: THAT'S CORRECT.
Q BY MS. CLARK: ALL RIGHT.
NOW, THAT TEST YOU WERE NOT PRESENT WHEN IT WAS
CONDUCTED; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q YOU DO NOT KNOW HOW MUCH PRESSURE WAS APPLIED BY THE
PERSON SWABBING THE SOCK WITH THAT
Q- TIP, CORRECT?
A THAT'S CORRECT.
Q YOU DO NOT KNOW HOW MUCH WATER WAS USED IN SWABBING
THE SOCK WITH THAT Q-TIP, CORRECT?
A I DON'T KNOW HOW MUCH THEY USED. I KNOW HOW MUCH
THEY SHOULD HAVE USE.
Q OKAY.
BUT YOU DON'T KNOW HOW MUCH THEY DID USE, DO YOU?
A THAT'S CORRECT.
Q YOU DON'T KNOW HOW LARGE AN AREA WAS SWABBED, DO YOU?
A NO, I DON'T.
Q AND IF THE BLOOD WAS DIFFICULT TO SEE AND THIS TEST
WAS BEING CONDUCTED UNDER NORMAL LIGHTING IN AN EFFORT TO DO A
BLOOD SEARCH WITH THAT SWAB, IT COULD HAVE BEEN A VERY LARGE
AREA, COULD IT NOT, SIR?
MR. NEUFELD: OBJECTION, SPECULATION.
THE COURT: SUSTAINED.
Q BY MS. CLARK: NEVERTHELESS, YOU DO NOT KNOW HOW
LARGE AN AREA IT WAS?
THE COURT: EXCUSE ME, COUNSEL. IF I HEAR THE BASES AND I
HEAR URGINGS FOR OBJECTIONS AND IF I CAN HEAR IT, THE JURY CAN
HEAR IT.
PROCEED.
Q BY MS. CLARK: SINCE YOU WERE NOT PRESENT THEN, SIR,
YOU CANNOT TELL US WHAT LARGE -- HOW LARGE AN AREA WAS SWABBED
WITH THAT SWAB, CORRECT?
A I CAN STATE THAT IT DID NOT GO TO THE EDGE OF THE
STAIN ITSELF, BECAUSE THE BLOOD IS VERY CLEAR, CRISP AND SHARP AT
THE EDGE OF THE STAIN.
GAD A SWAB THAT WAS WETTED, GONE INTO THAT AREA, IT
WOULD HAVE DILUTED AND DIFFUSED IT AND IT WOULD NOT LOOK AS IT
DOES, SO IT WOULD BE CONFINED MORE TO THE CENTER THAN THE
PERIPHERY.
THAT IS THE ONLY LIMIT I CAN PUT ON IT.
Q BY MS. CLARK: WITH THAT LIMITATION,
SIR -- BUT YOU CANNOT TELL US WHAT PORTION OF THE STAIN
CONTRIBUTED THE LITTLE BALLS ON SURFACE 3, WHETHER IT WAS THE
PERIPHERY OR THE CENTER OF THE STAIN, CAN YOU?
A YES. I CAN ELIMINATE THE PERIPHERY BECAUSE IT DID
NOT SOAK THROUGH THE FABRIC, ONLY THE CENTER AREA SOAKED THROUGH,
SO THAT IS THE ONLY AREA THAT COULD HAVE CAUSED THE STAINING ON
THE THIRD SIDE.
Q AND THAT IS THE ONLY AREA WHERE THE PHENO TEST WAS
CONDUCTED, IN YOUR OPINION, SIR?
A THAT'S WHERE THEY SHOULD HAVE CONDUCTED IT, WHERE IT
IS THE MOST CONCENTRATED, YEAH.
Q WELL, DIDN'T YOU JUST TESTIFY, SIR, THAT BASED ON
YOUR OBSERVATION OF THE PERIPHERY OF THE STAIN THAT THE WAY IT
APPEARED THERE WAS NOT WATER SWABBED AROUND THAT PERIPHERY THAT
YOU SAW?
MR. NEUFELD: OBJECTION AS TO THE TERM "WATER SWABBED."
THE COURT: SUSTAINED.
MISSTATES THE EVIDENCE IS WHAT THE CORRECT OBJECTION
IS, COUNSEL.
MR. NEUFELD: THANK YOU, YOUR HONOR.
Q BY MS. CLARK: SIR, WE DISCUSSED THE PERFORMANCE OF
THAT PHENO TEST USING DISTILLED WATER, CORRECT?
A YES.
Q AND IN THE SAMPLING PROCESS YOU WOULD USE A WET Q-TIP
TO SWAB THE AREA TO SEE IF THERE WAS SOMETHING THAT APPEARED TO
BE WORTH TESTING, CORRECT?
A YES.
Q AND YOU WERE NOT PRESENT WHEN THAT TEST WAS
PERFORMED, WE'VE ALREADY ESTABLISHED THAT, CORRECT?
A CORRECT.
Q SO IN THE -- IN THE SWABBING PROCESS WITH A WET Q-TIP
USING AN AMOUNT OF PRESSURE YOU ARE NOT AWARE OF, IT IS YOUR
OPINION, BASED ON WHAT YOU SAW, THAT THE PERIPHERY WAS NOT
SAMPLED IN THAT MANNER, THAT THE CENTER OF THE SCENE WAS SAMPLED
IN THAT MANNER, CORRECT?
MR. NEUFELD: OBJECTION AS TO THE FORM OF THAT QUESTION.
THE COURT: OVERRULED.
THE WITNESS: YES, THAT'S CORRECT, IF IT WAS VERY WET, THE
Q-TIP.
Q BY MS. CLARK: AND IT IS YOUR OPINION, SIR, THAT THE
LITTLE BALLS ON SURFACE 3 CAME FROM THAT CENTER PART OF THE STAIN
WHERE YOU OPINE THE SWABBING WAS DONE?
A IT WAS DONE THROUGH THE CUT-OUT, WHICH IS BASICALLY
THE CENTER.
Q WHICH IS WHERE YOU OPINE THE SWABBING WAS DONE?
A THAT'S CORRECT.
Q DID YOU TEST THE LITTLE BALLS IN ANY MANNER TO
DETERMINE WHETHER OR NOT IF THEY WERE BLOOD THEY WERE DILUTED IN
SOME MANNER?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED YESTERDAY.
THE COURT: SUSTAINED.
MS. CLARK: NO, I DIDN'T ASK ABOUT DILUTION.
THE COURT: THAT'S CORRECT.
REASK THE QUESTION.
Q BY MS. CLARK: DID YOU TEST THE LITTLE BALLS IN SOME
FASHION TO DETERMINE WHETHER IF THEY WERE BLOOD THEY WERE
DILUTED?
A I DIDN'T DO ANY TESTING. I DID AN OBSERVATION AND
THEY WERE DEEP RED AND DID NOT APPEAR TO BE DILUTED AT ALL.
Q NEVERTHELESS, SIR, DID YOU NOT TEST; IS THAT CORRECT?
A I DON'T KNOW WHAT TEST YOU COULD APPLY ON SOMETHING
THAT SMALL. I DID NOT; I DON'T THINK ANYONE COULD.
Q SO THEN YOU CANNOT TELL THIS JURY THAT THAT --
WHATEVER IT WAS WAS NOT DILUTED IN SOME FASHION, CAN YOU, SIR?
MR. NEUFELD: OBJECTION. MISSTATES HIS TESTIMONY.
THE COURT: OVERRULED.
THE WITNESS: I CONCLUDE IT WASN'T, BUT I CANNOT SAY
ABSOLUTELY ONE, THAT IT IS TRANSFERRED FROM THE OUTSIDE AND IF IT
WERE IT WOULD BE BLOOD, AND TWO, THAT IT IS NOT A CONCENTRATION
IN SOME FASHION, BUT I CANNOT CONCEIVE OF HOW THAT COULD OCCUR.
IT APPEARS TO BE A FRESH SAMPLE OF A RED FLUID THAT
IS DRIED AND BONDED TO A FIBER.
Q BY MS. CLARK: SIR, ISN'T THE BASIC TENANT OF
SCIENCE, THE CORNERSTONE OF IT, TESTING, SIR?
A I THINK IT IS OBSERVATION.
Q AND TESTING, IS IT NOT, SIR?
MR. NEUFELD: OBJECTION. I THINK HE SHOULD BE ALLOWED TO
FINISH HIS ANSWER.
THE COURT: SUSTAINED.
LET HIM FINISH.
THE WITNESS: OBSERVATION AND THEN TESTING. YOU HAVE TO
OBSERVE SOMETHING TO DETERMINE WHAT YOU MIGHT TEST FOR. I THINK
IT GOES IN THAT ORDER.
Q BY MS. CLARK: RIGHT, AND BASED UPON YOUR OBSERVATION
YOU FORM A HYPOTHESIS, DO YOU NOT, OR A THEORY, DO YOU NOT?
A I FORM THE CONCLUSION.
Q BUT THEN YOU GO TO TEST THAT CONCLUSION TO DETERMINE
WHETHER IT IS CORRECT OR NOT; ISN'T THAT TRUE, SIR?
A IF IT IS POSSIBLE TO DO SO YOU SHOULD, YES.
Q AND IS IT NOT TRUE, SIR, THAT ON OCCASION IT WILL
HELP THAT YOU HAVE A THEORY BASED ON YOUR OBSERVATION THAT IS
DISPROVEN BY TESTING?
DOESN'T THAT HAPPEN, SIR.
MR. NEUFELD: VAGUE. OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: IT COULD, YES.
Q BY MS. CLARK: AND IN THIS CASE, SIR, YOU FORMED A
CONCLUSION BASED ON YOUR OBSERVATION WHICH YOU COULD NOT TEST;
ISN'T THAT CORRECT?
A THAT IS CORRECT.
Q AND SO YOU CANNOT RULE OUT THE POSSIBILITY THAT
WHATEVER YOU OBSERVED THAT SUBSTANCE WAS IN THOSE LITTLE BALLS
WAS DILUTED OR NOT? YOU CANNOT RULE OUT THE POSSIBILITY THAT
THEY WERE DILUTED, CAN YOU, SIR?
MR. NEUFELD: OBJECTION, ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: I CAN'T ABSOLUTELY RULE OUT ANYTHING IN ANY
INSTANCE AND IN THIS CASE I COULD NOT ABSOLUTELY RULE IT OUT AS A
SCIENTIST.
Q BY MS. CLARK: NEVERTHELESS, IF YOU HAD TESTED THOSE
LITTLE BALLS IN SOME FASHION YOU MIGHT HAVE BEEN ABLE TO; ISN'T
THAT CORRECT?
THE COURT: SUSTAINED. SUSTAINED.
Q BY MS. CLARK: AND SIR, YOU CANNOT RULE OUT THE
POSSIBILITY THAT THOSE LITTLE BALLS WERE CREATED AT THE TIME THAT
THE PHENO TEST WAS CONDUCTED ON AUGUST 4TH; ISN'T THAT TRUE?
A ONLY -- IT COULD ONLY BE RULED OUT IF THE TESTING WAS
DONE IN THE NORMAL PROCEDURE, NOT USING A SATURATED Q-TIP. THAT
IS NOT WHAT YOU USE WHEN YOU HAVE A STAIN OF THAT SIZE.
SO IF IT WAS DONE PROPERLY, THERE WOULD NOT BE ENOUGH
LIQUID TO DISSOLVE ANY BLOOD AND TRANSFER IT TO THE INNER
SURFACE, SURFACE 3, AND IF IT WAS, IT WOULD NOT APPEAR THAT RED.
THAT IS MY CONCLUSION.
Q AND WHAT TEST DID YOU DO TO SUPPORT THAT CONCLUSION,
SIR?
A THERE IS NO TEST YOU CAN DO EXCEPT OBSERVATION WITH
GOOD OPTICAL EQUIPMENT.
Q SIR, WHAT EXPERIMENTS DID YOU PERFORM ON THE MATERIAL
OF THIS SOCK TO SHOW THAT A PHENO TEST USING DISTILLED WATER ON A
SWAB WOULD NOT PRODUCE THOSE LITTLE BALLS ON THE OPPOSITE INNER
SIDE?
A I DIDN'T HAVE THE SOCKS TO EXPERIMENT WITH. I DIDN'T
DO THAT.
Q DID YOU MAKE ANY ATTEMPT TO EXPERIMENT, AS I HAVE
SUGGESTED, PERFORMING A PHENO TEST ON A BLOODSTAIN TO SEE IF THAT
WOULD CAUSE SOME SEEPAGE OF MICROSCOPIC QUANTITIES ONTO THE
OPPOSITE INNER SIDE?
MR. NEUFELD: OBJECTION, NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: NOT ON THAT SOCK.
Q BY MS. CLARK: DID YOU ATTEMPT TO DO IT ON ANY
SUBSTANCE OR MATERIAL THAT WAS IDENTICAL TO OR VERY SIMILAR TO
THAT SOCK?
A YES.
Q YOU DID A PHENO TEST AND ATTEMPTED TO OBSERVE WHETHER
THERE WERE MICROSCOPIC PARTICLES ON THE OPPOSITE INNER SIDE AFTER
YOU PERFORMED THE TEST?
A I DIDN'T DO A PHENO TEST OR A PHENOLPHTHALEIN TEST
BECAUSE I KNEW IT WAS BLOOD. I PUT IT ON THE MATERIAL MYSELF.
Q AND CAN YOU SHOW US THE DOCUMENTATION FROM THE PHENO
TEST THAT YOU CONDUCTED WITH DISTILLED WATER AND A SWAB ON
MATERIAL JUST LIKE THOSE SOCKS?
MR. NEUFELD: MISSTATES THE EVIDENCE.
THE COURT: SUSTAINED. SUSTAINED.
Q BY MS. CLARK: SIR, WHAT EXPERIMENT DID YOU PERFORM
ON MATERIAL JUST LIKE THESE SOCKS TO SHOW THAT A PHENO TEST ON A
BLOODSTAIN ON AN OUTER SURFACE THAT IS JUST LIKE THIS BLOODSTAIN
WOULD LEAVE THE MICROBES OR NOT LEAVE THOSE LITTLE BALLS ON THE
OPPOSITE INNER SIDE?
A I APPLIED BLOOD TO A SIMILAR MATERIAL, A STOCKING
THAT WAS OF THE LIGHTWEIGHT POLYESTER COMPOSITION, AND BRUSHED IT
ON LIGHTLY, ENOUGH TO SOAK THROUGH, AND AFTER THAT I CUT OUT A
PORTION AND OBSERVED THE SIDE OPPOSITE CORRESPONDING TO SIDE 3.
MS. CLARK: OBJECTION. OBJECTION, YOUR HONOR. THIS IS NOT
MY QUESTION. THIS IS NONRESPONSIVE.
THE COURT: SUSTAINED.
MS. CLARK: MOTION TO STRIKE.
THE COURT: THE ANSWER IS STRICKEN.
Q BY MS. CLARK: MR. MAC DONELL, PLEASE LISTEN TO MY
QUESTION.
I AM ASKING YOU NOW WHETHER YOU TOOK MATERIAL JUST
LIKE THESE SOCKS WITH BLOOD ON IT, PERFORMED A SAMPLING WITH A
WET Q-TIP, PRESSING DOWN WITH THAT WET Q-TIP TO SAMPLE THE BLOOD
AND THEN OBSERVED THE OPPOSITE INNER SIDE AFTER IT HAD DRIED TO
SEE IF THERE WERE LITTLE BALLS LIKE THOSE OBSERVED ON THIS SOCK?
DID YOU DO THAT, SIR?
A NOT THAT SPECIFIC EXPERIMENT, NO.
MS. CLARK: THANK YOU, SIR.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MS. CLARK: AND LASTLY, SIR, YOU CANNOT RULE OUT
THE POSSIBILITY THAT THOSE LITTLE BALLS THAT YOU OBSERVED ARE THE
RESULT OF SOMEONE WITH A BLOODY HAND PULLING OFF THEIR SOCKS, CAN
YOU?
MR. NEUFELD: OBJECTION. ASKED AND ANSWERED YESTERDAY.
THE COURT: SUSTAINED.
MS. CLARK: DID I?
I HAVE NOTHING FURTHER.
THE COURT: MR. NEUFELD.
MR. NEUFELD: THANK YOU.
GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
MR. NEUFELD: ONE MOMENT
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
REDIRECT EXAMINATION
BY MR. NEUFELD:
Q MISS CLARK ASKED YOU A SERIES OF QUESTIONS THIS
MORNING ABOUT YOUR SEVERAL TRIPS YOU MADE OUT HERE DURING THE
LAST MONTH.
DO YOU RECALL THOSE QUESTIONS?
A YES, I DO.
Q DID YOU MAKE SEVERAL TRIPS OUT HERE DURING THE LAST
MONTH BECAUSE YOU HAD BEEN TOLD YOU WERE GOING TO TESTIFY AND
THEN BECAUSE OF SCHEDULING PROBLEMS YOU THEN HAD TO GO HOME AND
RETURN AGAIN AND GO HOME AND RETURN AGAIN?
A THAT'S CORRECT.
MR. NEUFELD: OKAY.
ONE MOMENT.
YOUR HONOR, BEFORE I CONTINUE THIS -- THIS REDIRECT,
CAN I HAVE A BRIEF SIDE BAR?
THE COURT: WITH THE COURT REPORTER, PLEASE.
MR. NEUFELD: THANK YOU.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
MS. CLARK: I WANT ONE, TOO.
THE COURT: WE ARE OVER AT THE SIDE BAR.
YOU GUYS BOTH ASK ENTIRELY TOO MANY QUESTIONS.
ALL RIGHT.
MR. COCHRAN: SORRY, JUDGE.
MR. NEUFELD: I HAVE ONLY ASKED ONE QUESTION ABOUT TRAVEL
SO FAR.
THE COURT: DO YOU THINK THE JURY IS REALLY INTERESTED IN
THAT?
MR. COCHRAN: JUDGE, ONLY ONE LAWYER.
MS. CLARK: YEAH.
MR. NEUFELD: YOUR HONOR, I BELIEVE YESTERDAY THROUGH MISS
CLARK'S QUESTIONING SHE OPENED THE DOOR FOR ME TO BRING OUT THE
FACT THAT THEY DID DO PRESUMPTIVE TESTING ON THE SOCK FOR TWO
REASONS:
OKAY. NO. 1, SHE BROUGHT OUT THE FACT THAT HE BOTH
EXAMINED THE SOCKS MICROSCOPICALLY AND THEN CERTAIN CHEMICAL
TESTS WERE DONE, AND THE SUGGESTION WAS THAT MR. MATHESON WAS
OUTSIDE THE ROOM.
SO I'M GOING TO HAVE TO DESCRIBE WHAT THOSE CHEMICAL
TESTS WERE.
MORE IMPORTANTLY, LATE IN THE DAY DURING HER
CROSS-EXAMINATION SHE ASKED, "WELL, YOU DIDN'T DO ANY TYPING ON
THOSE RED BALLS," SUGGESTING IN FACT THAT THAT WE CONFIRMED THAT
IS BLOOD OTHER THAN THE VISUAL INSPECTION.
I WOULD CALL THE COURT'S ATTENTION TO THE MANNER OF
THE DRAINS IN MR. SIMPSON'S HOUSE WHERE THE PEOPLE WERE PRECLUDED
>FROM BRINGING OUT THAT THEY DID PRESUMPTIVE TESTING ON THE DRAIN.
THE COURT RULED AT THAT TIME THAT IF WE MADE ANY
SUGGESTION THAT IT WASN'T BLOOD IN THE DRAINPIPES, OKAY, THAT
THAT WOULD THEN OPEN THE DOOR TO BRING OUT THE PRESUMPTIVE TESTS.
MISS CLARK'S QUESTION ABOUT THE FAILURE TO DO TYPING
TESTS ON THOSE RED BALLS I BELIEVE IS THE SAME THING.
IN FACT, SHE SAID IN THE VERY NEXT QUESTION, "WELL,
LET'S EVEN ASSUME FOR THE MOMENT THAT THEY ARE BLOOD BALLS." I
THINK SHE CAUGHT HERSELF AND REALIZED WHAT SHE HAD JUST DONE.
BUT I THINK THAT FOR BOTH THOSE REASONS, YOUR HONOR,
I AM ENTITLED TO ASK THIS WITNESS ABOUT THE PRESUMPTIVE TESTS
PART BECAUSE, AS I SAID, THERE IS ALREADY TESTIMONY ABOUT THE
CHEMICAL TESTS THAT THEY DID ON APRIL 2ND AND THE SECOND REASON
BEING FOR A SUGGESTION THAT WE HAVEN'T DONE ANYTHING TO INDICATE
THE PROOF OF THOSE RED BALLS ARE BLOOD.
MS. CLARK: NO, YOUR HONOR. THAT -- THE -- COUNSEL IS NOW
TRYING TO USE HIS WITNESS' OWN NONRESPONSIVE ANSWER. I NEVER
INTENDED TO ELICIT FROM HIM THAT HE PERFORMED SUCH A TEST. HE
VOLUNTEERED THAT IN AN EFFORT, AS HE HAS FREQUENTLY DONE, TO
INTERJECT INTO THE RECORD MATTERS THAT HE KNOWS HE IS NOT ALLOWED
TO GET INTO WHICH HE KNOWS I'M NOT ASKING FOR.
BUT COUNSEL REALLY HAS ALL THAT HE WANTS IN MY
REQUESTING OF HIM WHETHER OR NOT IT WAS TYPED, BECAUSE THE ISSUE
OF THAT WAS NOT TO DISPUTE THAT
WAS BLOOD, AND I'VE PRETTY MUCH -- ALTHOUGH THERE HAVE BEEN TIMES
THAT I SAID, WELL, WE ASSUME IT IS BLOOD -- I HAVE PRETTY MUCH
CONCEDED THAT -- CERTAINLY NOT FOUGHT THE ASSERTION THAT IT MIGHT
BE.
ALL I WAS SAYING WAS WE DON'T KNOW WHOSE IT IS, IF IT
IS BLOOD. THAT IS NOT FIGHTING THE ASSERTION THAT IT IS BLOOD.
THAT IS -- COUNSEL IS USING THE CAMEL'S NOSE ARGUMENT, BUT IT IS
HIS NOSE THAT IS IN THE TENT AND NOT MINE.
THE COURT: ALL RIGHT.
CAN YOU SHOW ME THE QUESTION AND ANSWER YOU ARE
REFERRING TO?
MR. NEUFELD: I DON'T HAVE THE TRANSCRIPT. IT IS BASED ON
MY RECOLLECTION.
MS. CLARK: I DON'T SEE HOW THAT WOULD POSSIBLY LET IT IN,
YOUR HONOR. ALL I'M SAYING, IT IS BLOOD; YOU DON'T KNOW WHOSE IT
IS.
MR. COCHRAN: I WILL ASK BLASIER.
THE COURT: AT THIS POINT I'M GOING TO SUSTAIN THE
OBJECTION.
THE COURT'S PREVIOUS RULING REGARDING PHENOLPHTALEIN
WILL STAND. ASK BLASIER TO --
(BRIEF PAUSE.)
MS. CLARK: YOUR HONOR, THERE WAS A SECOND ISSUE THAT I
WANTED TO RAISE WHILE WE ARE HERE SO WE DON'T WASTE TIME.
THE COURT: ALL RIGHT.
MS. CLARK: I DON'T WANT TO JUMP BACK UP HERE.
THE COURT: WHAT IS THE SECOND ISSUE?
MS. CLARK: THE SECOND ISSUE IS THAT THE WITNESS ATTEMPTED
TO GET IN THE SOCK DRYING EXPERIMENT.
HE KNEW WHAT I WAS ASKING HIM, DELIBERATELY
INTERJECTED A MATTER THAT WAS TOTALLY IRRELEVANT TO MY QUESTION.
MY QUESTION HAD NOTHING TO DO WITH THE PHENOLPHTHALEIN TEST OR
THE APPLICATION OF DISTILLED WATER. HE KNEW IT VERY WELL.
THE COURT: AND WE STOPPED IT REAL QUICK.
MR. NEUFELD: IT ALSO WASN'T THE SOCK DRYING EXPERIMENT HE
WAS REFERRING TO.
THE COURT: LET'S PROCEED.
MS. CLARK: IF COUNSEL INTENDS TO USE THAT ANSWER TO OPEN
UP THE DOOR THAT HAS BEEN CLOSED BY THE COURT --
MR. NEUFELD: I'M NOT GOING TO.
THE COURT: ALL RIGHT.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: ALL RIGHT. THANK YOU, COUNSEL.
MR. NEUFELD.
MR. NEUFELD: THANK YOU.
Q WHAT I WOULD LIKE TO YOU DO, PROFESSOR MAC DONELL,
FOR MOST OF THESE QUESTIONS, IS USE THE SAME TERMINOLOGY THAT THE
PROSECUTOR USED; NAMELY, WE HAVE SIDE 1, SIDE 2, SIDE 3 AND SIDE
4 OF THE SOCKS.
AND COULD YOU JUST QUICKLY SHOW, PERHAPS USING YOUR
OWN SOCK AGAIN, WHAT WE MEAN BY THAT WITH SIDE 1, SIDE 2, SIDE 3
AND SIDE 4?
A CAN I USE MY SLEEVE INSTEAD?
Q FINE.
A IF THE STAIN IS ON THE TOP, THAT IS CONSIDERED SIDE
1. SIDE 2 WOULD BE INSIDE WHERE LIQUID COULD SOAK THROUGH. SIDE
3 WOULD BE OPPOSITE, IF THE GARMENT WERE LYING FLAT, AND SIDE 4
WOULD BE THE OUTSIDE, WHICH WOULD BE OPPOSITE THE SIDE 3.
Q THANK YOU.
NOW, ON CROSS-EXAMINATION THE PROSECUTOR ASKED YOU A
SERIES OF QUESTIONS CONCERNING THE MANNER IN WHICH THE SOCK HAD
BEEN HANDLED PRIOR TO YOUR EXAMINATION ON APRIL 2ND.
DO YOU RECALL HER ASKING YOU THOSE QUESTIONS?
A YES, I DO.
Q AND DO YOU RECALL HER IN THOSE SERIES OF QUESTIONS
ASKING YOU WHETHER, FOR INSTANCE, IF THE SOCKS WERE TWISTED IN A
CERTAIN WAY COULD THAT PRODUCE THE RED BALLS THAT YOU OBSERVED ON
SURFACE 3?
DO YOU RECALL HER ASKING YOU THAT QUESTION?
A YES.
MS. CLARK: OBJECTION. OBJECTION. THAT MISSTATES THE
QUESTION.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: ALL RIGHT.
PROFESSOR MAC DONELL, IN YOUR OPINION COULD TWISTING
THE SOCKS RESULT IN PRODUCING THE RED BALLS THAT LOOKED LIKE
BLOOD BONDED TO THE FIBER ON SURFACE 3?
A NO, IT COULD NOT.
Q WHY NOT?
A YOU CAN'T CREATE LITTLE ROUND BALLS OF FLUID THAT DRY
ON A FIBER BY SIMPLY TWISTING A GARMENT. YOU CAN'T DO IT.
Q PROFESSOR MAC DONELL, COULD FREEZING AND THAWING THE
SOCK IN THE LABORATORY'S FREEZER AFTER THE STAINS HAD ALREADY
DRIED PRODUCE THE RED BALLS THAT LOOKED LIKE BLOOD BONDED TO THE
FIBER OF SURFACE 3?
A NO, THEY COULD NOT.
Q WHY NOT?
A THERE WOULD HAVE TO BE A SUBSTANTIAL AMOUNT OF
MOISTURE AND THAT WOULD SHOW UP BY DILUTING AND DIFFUSING THE
CLEAR SHARP STAINS AROUND THE PERIPHERY OF THE MAJOR CUT-OUT
AREA.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEPUTY DISTRICT ATTORNEY
AND DEFENSE COUNSEL.)
THE COURT: MRS. ROBERTSON, DO YOU HAVE THE SMALL
PHOTOGRAPH FROM YESTERDAY?
(BRIEF PAUSE.)
MR. NEUFELD: THANK YOU.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: PROFESSOR MAC DONELL, I'M GOING TO
BE SHOWING YOU THE PROSECUTION'S
EXHIBIT 554.
DO YOU SEE THAT PICTURE OF DR. HENRY LEE?
A YES, I DO.
Q STRETCHING THE SOCKS?
A YES, I DO.
Q IN YOUR OPINION COULD DR. HENRY LEE'S STRETCH THE
SOCKS AS SHOWN IN THAT PHOTOGRAPH RESULT IN PRODUCING THE RED
BALLS THAT LOOK LIKE BLOOD BONDED TO THE FIBER ON SURFACE 3?
A NO, THAT COULD NOT PRODUCE IT.
Q WHY NOT?
A AGAIN THERE IS NO MOISTURE, THERE IS NOTHING THAT
WOULD CAUSE A TRANSFER. THEY WOULD HAVE TO HAVE BEEN THERE PRIOR
TO THIS PHOTOGRAPH.
Q I SHOW YOU PROSECUTION'S EXHIBIT NO. 555.
HERE AGAIN YOU SEE A PHOTOGRAPH THAT WAS SHOWN TO YOU
BY THE PROSECUTOR YESTERDAY OF DR. LEE APPARENTLY TURNING A
PORTION OF THE SOCKS INSIDE OUT.
SIR, IN YOUR OPINION COULD DR. LEE'S TURNING THESE
SOCKS INSIDE OUT RESULT IN PRODUCING THE RED BALLS THAT LOOK LIKE
BLOOD BONDED TO THE FIBER ON SURFACE 3 OF THE SOCK?
A NO, IT COULD NOT.
Q WHY NOT?
A AGAIN, IT REQUIRES MOISTURE. THE CREATION OF THOSE
RED BALLS WAS DUE TO A LIQUID DRYING, AND MERELY MANIPULATING THE
SOCKS CANNOT PRODUCE THAT. IT WOULD HAVE TO BE THERE.
Q PROFESSOR MAC DONELL, COULD USING A SCISSORS OR A
SCALPEL TO CUT PIECES OF THE SOCK OUT FOR ADDITIONAL TESTING
RESULT IN PRODUCING THE RED BALLS THAT LOOKED LIKE BLOOD BONDED
TO THE FIBER ON SURFACE 3 OF THE SOCK?
A NO.
Q THE PROSECUTOR ALSO SHOWED YOU A PHOTOGRAPH OF
SOMEBODY, PRIOR TO THE TIME THAT YOU EXAMINED THE SOCKS ON APRIL
2ND, CONDUCTING A PRESUMPTIVE TEST ON THE SOCK BEFORE ANY AREA OF
IT WAS CUT OUT.
IN YOUR OPINION, SIR, COULD CONDUCTING A
PHENOLPHTHALEIN TEST ON THE OUTSIDE SURFACE OF THAT STAIN, PRIOR
TO THE TIME THAT ANY OF IT WAS CUT OUT, RESULT IN PRODUCING THE
RED BALLS THAT LOOKED LIKE BLOOD BONDED TO THE FIBER OF SURFACE
3?
A IT COULD ONLY DO THAT IF THERE WAS AN ABUNDANCE OF
LIQUID TO DISSOLVE BLOOD FROM THE SURFACE.
AND I DON'T -- I'M NOT BEING DISRESPECTFUL. I'M
SAYING IT WOULD BE A SLOPPY TECHNIQUE IN THAT THERE WOULD BE A
LOT OF LIQUID ON THE Q-TIP.
Q TO YOUR --
A ORDINARILY YOU USE JUST A DAMPENING, NOT A VOLUME OF
WATER.
Q AND WHEN YOU LOOKED AT THAT PICTURE DID YOU SEE WHAT
APPEARED TO BE A -- YOU SAID A YELLOW OVAL ON THE PIECE OF PAPER?
A YES.
Q AND WOULD THAT BE CONSISTENT WITH YOUR UNDERSTANDING
THAT WHEN IT IS DONE PROPERLY SOMEONE SIMPLY TAKES THE SWAB AND
DABS THAT PREEXISTING WET STAIN ON THE PAPER AND THEN APPLIES IT
TO THE MATERIAL ON THE SOCK?
A THAT IS ONE WAY IT IS DONE.
MS. CLARK: OBJECTION AS SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: THAT IS ONE WAY IT IS DONE BECAUSE IT
REQUIRES A MINIMAL AMOUNT OF LIQUID TO DISSOLVE THE SURFACE OF
THE BLOODSTAIN OR THE STAIN BEING TESTED TO DETERMINE IF
PRESUMPTIVELY IT COULD BE BLOOD.
THE AMOUNT THAT IS REMOVED THAT IS NECESSARY FOR A
TEST IS VERY, VERY SMALL. THE PHENOLPHTALEIN TEST IS A VERY
SENSITIVE TEST.
Q BY MR. NEUFELD: AND SIR, IS IT YOUR OPINION IF THE
TEST WAS CONDUCTED IN A NORMAL FASHION, AND SIMPLY DAB THAT
YELLOWISH OVAL, WOULD THAT PRODUCE OR COULD THAT PRODUCE THE RED
BALLS THAT LOOKED LIKE BLOOD BONDED TO THE FIBER OF SURFACE 3 OF
THE SOCK?
A NO, IT WOULD NOT.
Q NOW, THE PROSECUTOR ASKED YOU WHETHER SINCE YOU SAW
THE EVIDENCE OF A WET TRANSFER STAIN ON SURFACE 3 ON APRIL 2ND
THAT YOU CAN'T SAY FOR SURE WHEN THE STAIN ON SURFACE 3 GOT
THERE; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q WELL, SIR, IN THIS CASE THERE HAS ALREADY BEEN
TESTIMONY THAT THE FIRST TIME ANYONE OBSERVED A BLOODSTAIN ON THE
SOCK WAS AUGUST 4TH.
THE QUESTION I HAVE FOR YOU, SIR, IS CAN ANYONE TELL
WHEN BEFORE AUGUST 4TH ANY OF THE STAINS ON THAT SOCK GOT THERE?
A NO.
Q YOU RECALL WHEN MISS CLARK ASKED YOU QUESTIONS ABOUT
WHEN THE TRANSFER STAIN APPEARED ON SURFACE 3 AND SHE GAVE YOU A
SERIES OF DIFFERENT DATES AND YOU SAID YOU COULDN'T RULE OUT
THOSE DATES.
DO YOU RECALL THAT?
A YES.
Q LIKEWISE, SIR, CAN YOU RULE OUT OR CAN ANY SCIENTIST
RULE OUT THAT THE INITIAL BLOODSTAINS FOUND ON THAT SOCK WERE NOT
PUT ON THAT SOCK ON AUGUST 3RD?
A NO.
Q OR AUGUST 1ST?
MS. CLARK: OBJECTION, THAT CALLS FOR SPECULATION.
THE COURT: SUSTAINED.
MS. CLARK: MOTION TO STRIKE.
THE COURT: OVERRULED.
MR. NEUFELD: ONE SECOND.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: DO YOU RECALL -- DO YOU REMEMBER THE
PROSECUTOR ASKING YOU SOME QUESTIONS ABOUT DIFFERENCES BETWEEN
THE TERM "SWIPE" AND THE TERM "COMPRESSION"?
DO YOU RECALL THAT?
A YES, I CERTAINLY DO.
Q AND I BELIEVE YOU JUST SAID TO HER ON
CROSS-EXAMINATION THAT THEY WERE QUITE SIMILAR AND THAT IN FACT A
SWIPE WAS A SUBCATEGORY OF A COMPRESSION STAIN.
DO YOU RECALL THAT?
A YES.
Q BUT ARE BOTH THOSE STAINS, THAT IS A SWIPE OR A
COMPRESSION, SIGNIFICANTLY DIFFERENT THAN THE STAIN THAT RESULTS
>FROM BLOOD SPATTER?
A OH, YES.
MS. CLARK: OBJECTION, VAGUE.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: AND WHAT IS THE DIFFERENCE?
THE COURT: WAIT A MINUTE.
MR. NEUFELD: I'M SORRY.
THE COURT: YOU NEED TO LET YOUR WITNESS FINISH HIS ANSWER.
MR. NEUFELD: OKAY.
THE WITNESS: THEY ARE SIGNIFICANTLY DIFFERENT.
Q BY MR. NEUFELD: HOW ARE THEY DIFFERENT, SIR?
A A SPATTER IS PROJECTED BLOOD JUST LIKE A DROP WOULD
FALL ON TO A SURFACE AND AGAIN IT WILL BE INDISCRIMINATELY
BETWEEN FIBERS AS WELL AS ON THE SURFACE.
A SWIPE PATTERN OR WIPING OF THE SURFACE WITH BLOOD,
A TRANSFER PATTERN, WILL ONLY BE ON THE SURFACE OF THE FIBERS
UNLESS THERE IS SUFFICIENT BLOOD TO PENETRATE THE CENTRAL AREA.
AND THAT IS WHY I CHARACTERIZE THIS AS A TRANSFER
PATTERN WITH INDICATIONS OF LATERAL MOTION WHICH COULD MAKE IT
THEN A SWIPE PATTERN.
Q SIR, YOU STATED THAT YOU OBSERVED A WET TRANSFER
STAIN ON SIDE 1 AND SIDE 2 AND SIDE 3 OF THE SOCK; IS THAT
CORRECT?
A YES.
Q DID YOU OBSERVE ANY EVIDENCE OF A STAIN ON WHAT
YOU'VE NOW DESCRIBED AS SIDE 4?
A NO.
Q THE OUTSIDE SURFACE OPPOSITE SIDE 3?
A NO. THERE WAS VERY LITTLE ON SURFACE 3; NOT
SUFFICIENT TO PENETRATE THE FIBERS AND COME OUTSIDE 4.
Q DOES THE ABSENCE OF ANY BLOOD ON SIDE 4 INDICATE THAT
THE -- THAT THESE RED BALLS SEEN ON SIDE 3 DID NOT SOAK THROUGH
>FROM SIDE 4?
A CERTAINLY.
Q IS THAT ADDITIONAL EVIDENCE THAT THESE RED BALLS --
MS. CLARK: OBJECTION, LEADING.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: NOW, THE PROSECUTOR ASKED YOU SOME
OTHER QUESTIONS ABOUT THE APRIL 2ND EXAMINATION THAT YOU ATTENDED
WITH DR. HENRY LEE.
DO YOU RECALL THAT?
A YES.
Q AND SHE ASKED YOU QUESTIONS ABOUT THE PRESENCE OF
GREGORY MATHESON FROM THE LAPD SID LABORATORY.
DO YOU RECALL THAT?
A YES.
Q WAS GREGORY MATHESON PRESENT IN THE ROOM DURING THE
ENTIRE TIME THAT PHOTOGRAPHS WERE TAKEN OF THE SOCKS THROUGH THE
MICROSCOPE?
A DURING THE PHOTOGRAPHY, YES.
Q AND THE PROSECUTOR ASKED YOU WHY IN YOUR OWN NOTES
YOU DIDN'T PERSONALLY DESCRIBE SEEING THE RED BALLS BONDED TO THE
FABRIC ON SURFACE 3.
WHO WAS THE PRIMARY NOTE TAKER ON APRIL 2ND?
A DR. LEE.
Q SIR, HAVE YOU EVER HEARD THE EXPRESSION THAT A
PICTURE IS WORTH A THOUSAND WORDS?
A CERTAINLY.
Q IN YOUR PROFESSIONAL OPINION, SIR, IS A PHOTOGRAPH AN
ADEQUATE WAY OF DOCUMENTING WHAT YOU OBSERVED IN THE MICROSCOPE
INSTEAD OF SIMPLY WRITING IT DOWN IN YOUR NOTES?
A YES.
Q WHY IS THAT?
A WELL, AS YOU'VE JUST STATED, A PICTURE IS WORTH A
THOUSAND WORDS AND, I COULD NOT SKETCH IT OR DESCRIBE IT AS
ACCURATELY AS IT CAN BE RECORDED ON FILM.
Q EARLIER YESTERDAY THE PROSECUTOR ASKED YOU SOME
QUESTIONS ABOUT YOUR ACADEMIC CAREER.
BEFORE YOU STARTED TEACHING AT MILTON COLLEGE, WHAT
WAS THE EXTENT OF YOUR EDUCATION?
A I HAD A FOUR-YEAR DEGREE WITH A MAJOR IN CHEMISTRY
AND A MINOR IN MATHEMATICS FROM ALFRED UNIVERSITY AND ONE YEAR OF
GRADUATE STUDY IN CHEMISTRY FROM ALFRED UNIVERSITY.
Q WERE YOU PROUD OF THE FACT THAT YOU WERE ASKED TO
TEACH COLLEGE STUDENTS WITHOUT RECEIVING AN ADVANCED DEGREE
FIRST?
A I WAS BOTH PROUD AND SURPRISED. THE RECOMMENDATION
>FROM DR. SAUNDERS MUST HAVE BEEN QUITE GOOD. I HAVEN'T SEEN IT.
Q SIR, REMEMBER I ASKED YOU ABOUT THE JOHN DONDERO
AWARD WHICH YOU AND J. EDGAR HOOVER HAD BEEN RECIPIENTS OF?
A YES.
Q WHEN YOU WERE SELECTED, DID THE SIZE OF THE COLLEGE
YOU ATTENDED OR TAUGHT PLAY A ROLE IN THE SELECTION PROCESS?
A I DOUBT IT VERY MUCH. I DON'T KNOW WHETHER THEY EVEN
KNOW WHICH COLLEGE I TAUGHT AT OR ATTENDED.
Q THE PROSECUTOR ASKED YOU QUESTIONS ABOUT
PERSPIRATION.
IS THERE ANY EVIDENCE IN THE SOCK STAINS THAT YOU
OBSERVED OF THE PRESENCE OF SIGNIFICANT PERSPIRATION, SIR?
A NO. THERE IS --
MS. CLARK: OBJECTION. SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
MS. CLARK: OBJECTION, NO FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: SIR, IS THERE A BASIS FOR YOU TO
CONCLUDE WHETHER OR NOT THOSE SOCKS HAD SIGNIFICANT AMOUNTS OF
PERSPIRATION AT THE TIME THAT THE BLOOD WAS PUT THERE?
MS. CLARK: OBJECTION, NO FOUNDATION. CALLS FOR
SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: YES, THERE IS.
Q BY MR. NEUFELD: AND WHAT IS THAT BASIS, SIR?
MS. CLARK: OBJECTION, NO FOUNDATION.
THE COURT: OVERRULED.
MS. CLARK: OBJECTION. OUTSIDE THE SCOPE OF HIS EXPERTISE.
SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: THE APPEARANCE OF THE BLOOD ON THE SURFACE OF
THE FIBERS AROUND THE PERIPHERY IS VERY CLEAR AND SHARP. IF ANY
SIGNIFICANT AMOUNT OF MOISTURE, SUCH AS PERSPIRATION, HAD
PENETRATED THOSE FIBERS, THEY WOULD HAVE BEEN DILUTED AND
DIFFUSED.
Q BY MR. NEUFELD: AT THE END OF HER CROSS-EXAMINATION
YESTERDAY THE PROSECUTOR ASKED YOU WHETHER THE STAIN OBSERVED ON
THE OUTSIDE OF THE ANKLE PORTION OF THE SOCK COULD HAVE BEEN HAD
-- I'M SORRY -- COULD HAVE BEEN MADE WHEN THE WEARER OF THE SOCK
BRUSHED AGAINST NICOLE BROWN SIMPSON'S HAND OR ANOTHER BLOODY
SURFACE AT THE BUNDY CRIME SCENE.
AND I BELIEVE YOU ANSWERED THAT IT COULD.
DO YOU RECALL THAT, SIR?
A YES.
Q BUT LET ME ASK YOU THIS, SIR:
GIVEN ALL YOUR OBSERVATIONS ON SIDES 1, 2 AND 3 AND 4
OF THE ANKLE AREA, ARE THE TRANSFER STAINS THAT YOU OBSERVED
CONSISTENT WITH THE WEARER OF THE SOCK BRUSHING AGAINST MRS.
BROWN SIMPSON OR SOME OTHER BLOODY SURFACE AT THE BUNDY CRIME
SCENE?
A NOT AS I UNDERSTAND THE EVIDENCE IN THE CASE.
Q AND WHY NOT, SIR?
A THE CRIME SCENE, AS I UNDERSTAND IT, IS AT LEAST SIX
MINUTES FROM THE RESIDENCE OF MR. SIMPSON.
MS. CLARK: OBJECTION, YOUR HONOR. ASK TO APPROACH.
THE COURT: SUSTAINED. SUSTAINED.
MS. CLARK: ASK THE JURY BE ADMONISHED.
THE COURT: THE ANSWER IS STRICKEN.
THE JURY IS TO DISREGARD IT.
PROCEED.
Q BY MR. NEUFELD: THE PROSECUTOR ALSO ASKED YOU
WHETHER OR NOT THE STAIN IS CONSISTENT WITH MR. SIMPSON WITH
BLOODY HANDS TAKING OFF THE SOCKS.
DO YOU RECALL THAT?
A YES.
Q WELL, IF MR. SIMPSON -- I'M SORRY.
AGAIN, SIR, BASED ON YOUR OBSERVATIONS AND YOUR
EXPERTISE, IS THE EVIDENCE YOU HAVE SEEN --
I'M SORRY. WITHDRAWN.
I WILL REPHRASE THE QUESTION.
Q LET ME ASK YOU A HYPOTHETICAL,
PROFESSOR MAC DONELL.
IF MR. SIMPSON HAD COME HOME WITH BLOOD ON HIS HANDS
>FROM NICOLE SIMPSON BROWN AND WENT UPSTAIRS TO HIS BEDROOM TO
TAKE HIS SOCKS OFF, WOULD YOU EXPECT TO SEE A TRACE OF HIS BLOOD
ON THE LIGHT SWITCHES IN THE HOUSE.
MS. CLARK: OBJECTION, SPECULATION, ASSUMES FACTS NOT IN
EVIDENCE.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: WOULD YOU EXPECT TO SEE BLOOD ON THE
BANISTER GOING UPSTAIRS?
MS. CLARK: SAME OBJECTION.
THE COURT: SUSTAINED.
MR. NEUFELD: MAY WE HAVE A SIDE BAR, YOUR HONOR?
THE COURT: NO.
Q BY MR. NEUFELD: ARE YOU AWARE OF THE FACT, PROFESSOR
MAC DONELL, THAT THE CRIMINALISTS IN THIS CASE HAVE EVIDENCE THAT
THERE WERE ABSOLUTELY NO BLOODSTAINS CONSISTENT WITH NICOLE BROWN
SIMPSON RECOVERED ANYWHERE INSIDE MR. SIMPSON'S HOME?
A YES.
Q HAVE YOU SEEN THE PICTURES OF THE BEIGE CARPET IN HIS
BEDROOM?
A YES.
Q HAVE YOU SEEN THE PICTURES OF THE WHITE BEDSPREAD ON
HIS BED?
A YES.
Q ARE YOU FAMILIAR WITH THE SPEED AT WHICH BLOOD CLOTS,
SIR?
A YES, THERE IS A RANGE.
Q AND SIR, WHAT IS THAT RANGE?
MS. CLARK: OBJECTION, YOUR HONOR. BEYOND THE SCOPE OF HIS
EXPERTISE; NO FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. NEUFELD: SIR, IN YOUR EXPERTISE ON BLOOD
SPATTER PATTERNS AND BLOODSTAIN INTERPRETATION, HAVE YOU STUDIED
THE RATE AT WHICH BLOOD CLOTS AND WHAT ROLE THAT PLAYS IN
PROVIDING FEATURES OF PARTICULAR BLOODSTAINS?
A YES.
Q AND FOR HOW LONG HAVE YOU STUDIED THAT FACT, SIR?
A SINCE WE BEGAN DRAWING BLOOD IN 1954.
IF WE DIDN'T HAVE AN ANTICOAGULANT, IT WOULD ALWAYS
CLOT, OF COURSE.
Q AND WHAT IS THE SIGNIFICANCE -- I'M SORRY.
AND WHAT IS THAT RANGE FOR CLOTTING.
MS. CLARK: SAME OBJECTION, YOUR HONOR.
THERE IS NO FOUNDATION, NO EXPERTISE.
THE COURT: OVERRULED.
THE WITNESS: NORMAL RANGE, NOT ONLY IN OUR EXPERIMENTS AND
OBSERVATIONS, BUT IN THE PUBLISHED LITERATURE, IS BETWEEN --
GENERALLY BETWEEN THREE AND SIX MINUTES.
IF SOMEONE IS HEMOPHILIAC THEN OF COURSE IT WILL BE
MUCH, MUCH LONGER, IF AT ALL.
Q BY MR. NEUFELD: AND WHAT IS THE SIGNIFICANCE OF YOUR
KNOWLEDGE OF THE CLOTHING FACTOR IN GIVING AN OPINION ON WHETHER
OR NOT THE BLOODSTAINS SEEN ON THOSE SOCKS WOULD HAVE BEEN MADE
HAD MR. SIMPSON COME HOME WITH NICOLE BROWN SIMPSON'S BLOOD ON
HIS HAND WHEN HE TOOK OFF THOSE SOCKS?
MS. CLARK: OBJECTION, YOUR HONOR. OBJECTION. NO
FOUNDATION, CALLS FOR SPECULATION AND ASSUMES FACTS NOT IN
EVIDENCE.
THE COURT: OVERRULED.
THE WITNESS: I WOULD EXPECT TO SEE TRACES OF CLOT MATERIAL
ON THE SURFACE, BECAUSE IT WOULD NOT PENETRATE INTO THE FABRIC,
BUT THE AMOUNT OF CLOT MATERIAL ON A DARK SURFACE LIKE THAT COULD
BE THE FIRST THING REMOVED IF A TESTING WAS MADE.
IT WOULD NOT NECESSARILY BOND AS QUICKLY AS THE BLOOD
THAT SATURATED AND SOAKED INTO THE FABRIC.
Q BY MR. NEUFELD: AND IN THE NOTES THAT YOU HAVE
REVIEWED BY GREG MATHESON AND MR. SIMS OF THEIR OBSERVATIONS OF
THE STAIN ON THE OUTSIDE SURFACE OF THE SOCK, DO ANY OF THEM
MENTION SEEING ANY CLOT-LIKE MATERIAL?
A NOT THAT I AM AWARE OF.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. NEUFELD: YESTERDAY MISS CLARK ASKED YOU
WHETHER OR NOT THE SURFACE OF THE STAINS THAT YOU SAW ON THE
ANKLE COULD HAVE HAPPENED --
I'M SORRY. WITHDRAWN.
I WILL REPHRASE THE QUESTION.
YESTERDAY MISS CLARK ASKED YOU WHETHER OR NOT THE
SURFACE STAIN YOU SAW, SURFACE 1 OF THE SOCK, COULD HAVE BEEN
MADE BY CONTACT AT THE BUNDY CRIME SCENE.
IS THERE ANYTHING ABOUT NOT JUST THE STAIN YOU SAW ON
SURFACE 1, BUT THE STAIN YOU SAW ON SURFACE 2 AND SURFACE 3 WHICH
WOULD INDICATE TO YOU THAT IT COULDN'T HAVE HAPPENED THAT WAY?
A YES.
Q AND WHAT IS THAT, SIR?
A THE RED BALLS ON --
MS. CLARK: OBJECTION. SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: THE RED BALLS THAT WERE ON THE INSIDE ON
SURFACE 3, IF BLOOD AND HAD TRANSFERRED FROM SURFACE 2, COULD
HAVE TO BE TRANSFERRED BY A MOIST OR WET STAIN AND THAT WET,
MOIST STAIN COULD NOT PERSIST FOR A PERIOD OF TIME, SIX MINUTES,
SEVEN MINUTES, EIGHT MINUTES WOULD BE FAR BEYOND THE DRYING TIME.
MS. CLARK: OBJECTION, OBJECTION, OBJECTION.
THE COURT: SUSTAINED. THE ANSWER IS COMPLETELY STRICKEN.
Q BY MR. NEUFELD: PROFESSOR MAC DONELL --
THE COURT: EXCUSE ME.
OVER AT SIDE BAR WITH THE COURT REPORTER.
LADIES AND GENTLEMEN WOULD YOU STEP INTO THE JURY
ROOM. IN FACT, STAY THERE.
(THE JURY WAS EXCUSED AND THE
FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF
THE PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. THANK YOU, COUNSEL.
BE SEATED.
WHAT WAS THAT ABOUT?
MR. NEUFELD: I'M SORRY.
YOUR HONOR, WHEN PROFESSOR MAC DONELL HAS A SECOND
REASON, ASIDE FROM DRYING, AS TO WHEN YOU LOOK NOT JUST AT THE
SURFACE STAIN ON SURFACE 1, BUT THE SURFACE STAINS ON 2 AND 3,
WHY IT IS INCONSISTENT WITH BUNDY, AND THE ANSWER WOULD SIMPLY BE
THAT THE STAIN THAT YOU SEE ON SURFACE 3 HAD TO HAVE OCCURRED AT
A TIME WHEN THERE WAS NO ANKLE IN THE SOCK AND THAT IS THE ANSWER
THAT I WAS LOOKING FOR AND THAT IS THE ANSWER THAT HE TOLD ME
THIS MORNING.
I KNEW FULL WELL WHAT THE COURT'S RULING WAS WITH
RESPECT TO THE OTHER AND I WAS VERY CAREFUL ABOUT IT, AND AS YOU
MAY HAVE NOTICED, I WAS BASICALLY DONE AND I REALIZED THERE WAS
ONE OTHER WAY THAT COULD I STILL DEAL WITH THE SAME HYPOTHETICAL
WITHOUT EVEN GOING INTO DRYING, BUT JUST TO HAVE HIM SAY THAT
THERE WOULD BE NO ANKLE THERE AND THAT IS THE ANSWER THAT I WAS
LOOKING FOR.
THE COURT: THAT IS NOT THE ANSWER WE GOT.
MR. NEUFELD: THAT IS UNDERSTOOD, YOUR HONOR, AND I'M SORRY
ABOUT THAT, BUT THAT WAS NOT MY INTENTION AT THAT TIME.
I HEARD THE COURT'S RULING VERY CLEARLY AND I FULLY
EXPECTED THIS WITNESS TO GIVE THE OTHER ANSWER.
YOU CAN INQUIRE OF THE WITNESS, YOUR HONOR. I HAVE
NO PROBLEM WITH IT. THERE WERE TWO SEPARATE GROUNDS FOR THE
OPINION AND I AT THAT TIME EXPECTED HIM TO SIMPLY ARTICULATE THE
SECOND GROUND BASED ON THE COURT'S RULING.
THE COURT: ALL RIGHT.
I HAVE STRICKEN THE ANSWER. I TAKE IT THIS IS GOING
TO BE YOUR LAST QUESTION?
MR. NEUFELD: YES.
MS. CLARK: MAY I BE HEARD, YOUR HONOR?
THE COURT: YES.
MR. NEUFELD: ALSO, YOUR HONOR, BEFORE WE HAVE THE JURY,
CAN I INSTRUCT THE WITNESS TO SO LIMIT HIS ANSWERS SO WE DON'T
HAVE ANY ADDITIONAL PROBLEM?
THE COURT: HE HAS BEEN PRESENT FOR OUR DISCUSSION. I
ASSUME HE HAS UNDERSTOOD WHAT WE JUST DISCUSSED.
MR. NEUFELD: THANK YOU, YOUR HONOR.
THE COURT: MISS CLARK.
MS. CLARK: BUT THAT IS THE VERY PROBLEM.
I'M SURE THAT MR. NEUFELD INFORMED THIS WITNESS THAT
HE WAS NOT TO GO INTO THE SOCK DRYING EXPERIMENT. THIS IS THE
FOURTH TIME.
COUNSEL HAS ELICITED THAT RESPONSE FROM THE WITNESS.
I'M NOT SAYING COUNSEL IS DOING IT INTENTIONALLY, BUT IT IS
HAPPENING NONE THE LESS.
THE WITNESS SHOULD BE CHARGED. THIS IS A
PROFESSIONAL WITNESS. THIS IS NOT SOME KID OFF THE STREET WHO IS
TESTIFYING FOR THE FIRST TIME. THIS IS 150 TIMES WORSE. THIS
MAN HAS TESTIFIED. HE KNOWS BETTER.
AND YET FOUR TIMES I'VE HAD TO OBJECT TO PREVENT HIM
>FROM TESTIFYING TO WHAT HE KNOWS AND COUNSEL KNOWS IS
INADMISSIBLE AND NOW IT HAS HAPPENED AGAIN.
AND I DON'T KNOW, YOU KNOW -- I DON'T KNOW WHEN SOME
ADMONITION SHOULD BE GIVEN TO THE JURY. IF NOT NOW, HOW MANY
TIMES DOES THIS MAN GET TO BRING INTO THE RECORD OR ATTEMPT TO
BRING INTO THE RECORD MATERIAL THAT THE COURT HAS DETERMINED
INAPPROPRIATE AND INADMISSIBLE? HOW MANY TIMES BEFORE THE JURY
IS TOLD THAT THIS IS INADMISSIBLE?
THE COURT: WELL, I THINK THE JURY HAS DIVINED ENOUGH THAT
I'VE STOPPED THE PROCEEDINGS, ASKED THEM TO STEP OUT AND STRICKEN
THE ANSWER. I THINK THEY GOT THE FEELING THAT IT HAS BEEN
INAPPROPRIATE AND SINCE IT HAS HAPPENED FOUR TIMES WITH THIS
WITNESS ALREADY, I THINK THEY HAVE GOTTEN THE MESSAGE.
ALL RIGHT. LET'S PROCEED.
MS. CLARK: THE OTHER PROBLEM IS DISCOVERY WE NEED.
THE WITNESS: MAY I MAKE A COMMENT?
THE COURT: NO, YOU MAY NOT.
MS. CLARK: WE WERE NEVER INFORMED OF THE SECOND REASON,
YOUR HONOR. THIS IS A NEW ONE TO ME.
AND AS A MATTER OF FACT, THE WITNESS CONCEDED ON
CROSS-EXAMINATION THAT HE COULD NOT SAY THAT SURFACE 1 AND
SURFACE 3 STAINS WERE MADE AT THE SAME TIME, AND NOW FOR THE
FIRST TIME I'M HEARING THERE IS A NEW THEORY THAT I WAS NOT
INFORMED OF.
THE COURT: ARE YOU SPEAKING OF THE CLOTTING BUSINESS?
MR. NEUFELD: NO.
MS. CLARK: I AM.
MR. NEUFELD: IT IS NOT A NEW THEORY, YOUR HONOR.
THE COURT: WAIT, COUNSEL. I'M SORRY --
MR. NEUFELD: I'M SORRY.
THE COURT: -- I WAS SPEAKING WITH MISS CLARK.
MR. NEUFELD: SORRY.
MS. CLARK: I HAVE NOT HEARD THIS NEW THEORY THAT COUNSEL
ADMITTED JUST NOW WHICH WAS TOLD TO HIM BY THIS WITNESS THIS
MORNING FOR THE FIRST TIME, THERE WAS AN ADDITIONAL REASON OTHER
THAN THE SOCK DRYING EXPERIMENT.
THAT IS THE POINT OF DISCOVERY, ISN'T IT?
THE COURT: IT IS.
MS. CLARK: THAT IS WHY THE PEOPLE ASKED FOR THE 402 ON
THIS WITNESS TO BEGIN WITH. HE IS TESTIFYING TO THINGS THAT NO
ONE HAS HEARD BEFORE, EVEN COUNSEL HAS HEARD BEFORE THIS MORNING.
HOW CAN WE EFFECTIVELY CROSS-EXAMINE SOMEONE LIKE
THIS?
THE COURT: ALL RIGHT.
AS TO WHICH POINT, MISS CLARK?
MS. CLARK: WELL, AS TO THE NEW THEORY NOW ABOUT THE TIMING
OF WHEN STAIN 3 HAD TO HAVE OCCURRED. THIS IS SOMETHING NEW.
INITIALLY --
THE COURT: A NEW THEORY THAT IT OCCURRED WHEN?
MS. CLARK: IT APPEARS THAT THE WITNESS IS NOW GOING TO
ATTEMPT TO TESTIFY THAT HE CAN SAY DEFINITIVELY THAT STAINS 1 AND
STAINS 3 OCCURRED AT THE SAME TIME BECAUSE STAIN 2 CAME FROM --
STAIN 3 CAME FROM STAIN 2.
THAT WAS SOMETHING THAT HE WAS NOT WILLING TO GO THAT
FAR ON CROSS. APPARENTLY HE HAS SOMETHING NEW TO WHICH COUNSEL
JUST SAID WAS EXPLAINED TO HIM THIS MORNING BY THIS WITNESS.
THE COURT: NO, BUT HE HAS ALREADY OPINED THAT IN HIS
OPINION STAIN 3 CAME FROM STAIN 2 AND THAT OBVIOUSLY BECAUSE OF
THE WAY MEN WEAR SOCKS, OR WOMEN, FOR THAT MATTER, THAT
OBVIOUSLY IF THERE WAS A FOOT IN THERE IT WOULDN'T HAPPEN THIS
WAY.
THAT IS WHAT I THINK THE ANSWER IS GOING TO BE.
MS. CLARK: MAY I HAVE ONE MOMENT, YOUR HONOR? MY WORTHY
COLLEAGUE HAS --
(BRIEF PAUSE.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: IF THAT WERE THE CASE, YOUR HONOR, THEN THAT
WOULD BE CONSISTENT WITH WHAT HE HAD SAID BEFORE.
THE COURT: SINCE THAT IS A CONCLUDING QUESTION, I ASSUME
IT IS A WRAP-UP QUESTION.
MS. CLARK: BUT THIS IS A NEW THEORY, IF WHAT I UNDERSTAND
IS CORRECT.
THE COURT: NO, NO, NO, IT IS NOT A NEW THEORY.
MS. CLARK: CAN WE HEAR FROM COUNSEL THEN?
THE COURT: IT IS NOT A NEW THEORY.
MS. CLARK: THAT IS WHAT COUNSEL SAID.
THE COURT: 3 CAME FROM 2 AND THE ONLY WAY THAT CAN HAPPEN
IS IF THERE ISN'T A FOOT IN IT.
EVEN I UNDERSTAND THAT.
MS. CLARK: RIGHT.
AND I UNDERSTOOD THAT, TOO, YOUR HONOR, BUT HERE IS
WHAT COUNSEL SAID.
HE SAID THERE WERE TWO SEPARATE GROUNDS FOR THE
OPINION, ONE, THE SOCK DRYING EXPERIMENT AND ONE --
THE COURT: THIS IS A DIFFERENT THEORY.
MS. CLARK: YES.
THE COURT: ALL RIGHT.
LET'S HAVE THE JURORS, PLEASE.
MR. COCHRAN: THANK YOU, YOUR HONOR.
(BRIEF PAUSE.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: THANK YOU, LADIES AND GENTLEMEN.
PLEASE BE SEATED.
THE RECORD SHOULD REFLECT THAT WE HAVE BEEN REJOINED
BY ALL THE MEMBERS OF OUR JURY.
MR. NEUFELD, DO YOU HAVE ANY FURTHER QUESTIONS?
MR. NEUFELD: YES.
Q PROFESSOR MAC DONELL, BASED ON YOUR OBSERVATIONS OF
SURFACE 1, SURFACE 2 AND SURFACE 3 OF THE SOCK IN QUESTION, IS IT
YOUR OPINION THAT THE STAINING OF THAT SOCK COULD HAVE HAPPENED
AT THE BUNDY CRIME SCENE?
A NO.
Q WHY NOT?
A IF THERE WAS A FOOT OR AN ANKLE IN THE SOCK IT COULD
NOT TRANSFER FROM SURFACE 2 TO 3.
MS. CLARK: OBJECTION, THAT WAS VAGUE, STAINING AS TO 1, 2
OR 3.
THE COURT: OVERRULED. OVERRULED.
Q BY MR. NEUFELD: WOULD YOU PLEASE START AGAIN, SIR.
A THE STAINING THAT TRANSFERRED, IN MY OPINION, FROM
SURFACE 2 TO SURFACE 3 COULD NOT OCCUR IF A FOOT WAS IN THE SOCK.
MR. NEUFELD: THANK YOU VERY MUCH.
NO FURTHER QUESTIONS.
THE COURT: MISS CLARK.
RECROSS-EXAMINATION
BY MS. CLARK:
Q BUT YOU CANNOT -- YOU CANNOT TELL THIS JURY THAT THE
STAIN FROM SURFACE 2 AND THE STAIN TO SURFACE 3 OCCURRED AT THE
SAME TIME, CORRECT?
A THAT IS CORRECT.
MR. NEUFELD: VAGUE AS TO TIME.
THE COURT: OVERRULED.
MR. NEUFELD: SAME TIME.
Q BY MS. CLARK: AND IF THERE ARE LITTLE ROUND BALLS
ALREADY FORMED ON SURFACE 2, SIR, YOU CANNOT RULE OUT THE
POSSIBILITY OF TRANSFER TO SURFACE 3, CORRECT?
MR. NEUFELD: OBJECTION AS TO "TRANSFER."
THE COURT: OVERRULED.
THE WITNESS: I DO NOT UNDERSTAND THE QUESTION, I'M SORRY.
MS. CLARK: OKAY.
Q LET ME ASK YOU MORE SIMPLY.
ASSUME THE FOLLOWING HYPOTHETICAL, SIR:
THAT SOMEONE IS WEARING A VERY THIN PAIR OF NYLON
SOCKS AND THAT THEY ARE VERY -- THEY ARE WET WITH PERSPIRATION.
MR. NEUFELD: OBJECTION, THERE IS NO -- ASSUMES FACTS NOT
IN EVIDENCE.
THE COURT: OVERRULED.
Q BY MS. CLARK: THAT A BLOODSTAIN IS APPLIED TO THE
OUTER SURFACE AROUND THE ANKLE, THAT WHILE THE BLOOD IS STILL IN
A WET CONDITION THE SOCKS ARE LEFT FLAT ON THE FLOOR.
MR. NEUFELD: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE,
SPECULATION.
THE COURT: OVERRULED. OVERRULED.
Q BY MS. CLARK: THE SOCKS ARE LEFT FLAT ON THE FLOOR
WHILE THAT BLOODSTAIN IS STILL WET, COULD THAT CAUSE -- COULD
SUCH A SET OF FACTS, SIR, CAUSE THE LITTLE BALLS TO APPEAR ON THE
SURFACE 3 THAT
YOU -- SUCH AS YOU OBSERVED IN THIS CASE?
A YES, UNDER THOSE CONDITIONS.
Q YOU INDICATED, SIR, THAT THE LITTLE BALLS THAT YOU
SAW ON SURFACE 3 WOULD HAVE TO HAVE BEEN THERE BEFORE THE
FEBRUARY 16TH EXAMINATION BY DR. HENRY LEE?
ISN'T THAT WHAT YOU SAID?
A YES, THEY WOULD HAVE TO BE.
Q BUT TO THE BEST OF YOUR KNOWLEDGE THERE ARE NO
PHOTOGRAPHS THAT DEPICT ANY OF THOSE LITTLE BALLS TAKEN ON
FEBRUARY 16, 1995, DURING DR. HENRY LEE'S EXAMINATION, CORRECT?
A THAT'S CORRECT.
Q AND DR. LEE DID -- DID INSTRUCT THE -- OR DIRECT THE
PHOTOGRAPHS THAT WERE TAKEN ON APRIL 2ND, 1995, DID HE NOT?
A YES.
Q YOU INDICATED THAT THE PERFORMANCE OF A PHENO TEST
COULD ONLY HAVE CAUSED THOSE LITTLE BALLS TO APPEAR ON SURFACE 3
IF THERE WAS ABUNDANCE OF LIQUID.
DO YOU RECALL THAT TESTIMONY, SIR?
A YES.
Q NEVERTHELESS, THE VOLUME OF THE LITTLE BALLS THAT YOU
SAW IS SO -- IS SO MICROSCOPIC THAT THEY COULD NOT BE SEEN WITH
THE NAKED EYE; ISN'T THAT CORRECT?
A THAT IS CORRECT.
Q AND YET THE DROP OF BLOOD ON THE OUTER SURFACE OF
SURFACE 1 YOU ESTIMATED AT 50 TO 60 MICROLITERS; ISN'T THAT
RIGHT?
A THAT IS CORRECT.
Q AND EASILY OBSERVED VOLUME OF BLOOD, WOULD IT NOT BE?
A YES.
Q UNDER HIGH-INTENSITY LIGHT ON THOSE DARK SOCKS
ANYWAY?
A CERTAINLY.
Q NEVERTHELESS, A DROP OF BLOOD OF THAT QUANTITY, 50 TO
60 MICROLITERS, WOULD BE EASY FOR US TO SEE WITH THE NAKED EYE;
ISN'T THAT CORRECT?
A NOT UNDER THIS ILLUMINATION, BUT IF YOU HAD
HIGH-INTENSITY ILLUMINATION, AN AVERAGE PERSON COULD SEE IT
WITHOUT ANYTHING MORE THAN A MAGNIFYING GLASS.
Q OKAY.
BUT ON THOSE BLACK SOCKS, SIR, IF SOMEONE UNDER
NORMAL LIGHTING CONDITIONS WAS NOT LOOKING FOR BLOOD, THEN THAT
AMOUNT OF BLOOD, 50 TO 60 MICROLITERS, CAN BE EASILY MISSED,
COULD IT NOT?
MR. NEUFELD: OBJECTION. BEYOND THE SCOPE OF CROSS -- OF
REDIRECT, I'M SORRY.
THE COURT: SUSTAINED.
Q BY MS. CLARK: OKAY.
NOW, THE DOT ON THE PAPER WHERE WE SAW THE SAMPLING
PHASE OF THE PHENOLPHTHALEIN TESTING ON THE SOCKS COULD BE WATER
DRIPPING, COULD IT NOT, SIR?
MR. NEUFELD: OBJECTION, CALLS FOR SPECULATION.
THE COURT: SUSTAINED.
Q BY MS. CLARK: WELL, SIR, YOU DON'T
KNOW -- YOU DON'T KNOW HOW THAT DROP GOT TO BE THERE ISN'T THAT
CORRECT?
MR. NEUFELD: OBJECTION, YOUR HONOR. SPECULATION.
THE COURT: OVERRULED. OVERRULED.
THE WITNESS: IT DIDN'T GET THERE BY DRIPPING.
AT LEAST IF IT DID, THE PAPER WAS AT AN ANGLE,
BECAUSE IT IS AN OVAL OR AN ELLIPSE AND NOT A ROUND SPOT, WHICH
IS WHAT HAPPENS WHEN A LIQUID STRIKES A FLAT SURFACE.
Q BY MS. CLARK: NEVERTHELESS, YOU DO NOT KNOW HOW THAT
WATER CAME TO BE THERE; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q YOU DON'T KNOW IF IT IS BECAUSE THEY WERE DABBING OFF
EXCESS WATER OR IF WATER WAS JUST DRIPPING FROM A VERY WET SWAB;
ISN'T THAT RIGHT?
MR. NEUFELD: OBJECTION, SPECULATION.
THE COURT: SUSTAINED.
Q BY MS. CLARK: NOW, YOU EXAMINED THESE SOCKS FOR THE
FIRST TIME TEN MONTHS AFTER THEIR COLLECTION ON APRIL 2ND, 1995?
A I EXAMINED THEM ON THAT DATE, YES.
Q DID YOU PERFORM ANY TEST ON THE MATERIAL OF THOSE
SOCKS TO DETERMINE WHETHER YOU COULD EXAMINE THEM TEN MONTHS
AFTER THEY WERE PERSPIRED INTO AND DETECT THE PERSPIRATION ON
THEM?
A NO.
Q DID YOU PERFORM ANY EXPERIMENTS ON THOSE SOCKS TO
DETERMINE WHETHER PERSPIRATION WOULD ABSORB ALL THE WAY THROUGH
FOR THE PURPOSE OF BEING ABLE TO DETECT THAT PERSPIRATION LATER
ON?
A WELL --
Q YES OR NO, MR. MAC DONELL?
A I DIDN'T DO ANY TESTS, NO.
MR. NEUFELD: YOUR HONOR --
Q BY MS. CLARK: NOW, SIR, YOU ARE AWARE OF DR.
HUIZENGA'S TESTIMONY, ARE YOU NOT, THAT SOMEONE THAT CUTS
THEMSELVES, THE BLOOD CAN CLOT, UNCLOT AND RECLOT AGAIN?
A I AM NOT AWARE OF THAT, NO.
Q WOULD THAT SURPRISE YOU, SIR?
A IT WOULD SURPRISE ME GREATLY IF BLOOD UNCLOTTED.
THERE MIGHT BE ADDITIONAL BLOOD ADDED TO AN EXISTING CLOT, BUT
THAT WOULD BE FRESH BLOOD. I HAVE NEVER HEARD OF BLOOD
UNCLOTTING AS SUCH.
Q LET ME BE MORE SPECIFIC.
SOMEONE HAS A CUT ON THEIR FINGER WHICH IS BLEEDING
AND THEN CLOTS, CAN MOVEMENT OF THE FINGER, IN YOUR OPINION,
CAUSE THAT BLOOD TO UNCLOT AND BLEED FRESH?
A NO. YOU CAN MOVE --
MR. NEUFELD: OBJECTION, YOUR HONOR, TO THE FORM OF THE
QUESTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MS. CLARK: YES.
ARE YOU AWARE OF DR. HUIZENGA'S TESTIMONY TO THE
EFFECT, SIR, THAT BLOOD -- THAT A CUT CAN BLEED AND THEN CLOT AND
THROUGH MOVEMENT AND ACTIVITY UNCLOT AND BLEED AGAIN?
THE COURT: COUNSEL, YOU ARE USING A TERM "UNCLOT."
MS. CLARK: UNCLOT.
THE COURT: YOU ARE TALKING PERHAPS THE CLOT BREAKS,
PERHAPS THE CLOT IS WIPED AWAY?
MS. CLARK: RIGHT.
THE COURT: THE WOUND STARTS TO BLEED AGAIN WITH FRESH
BLOOD?
THE WITNESS: YOU CAN HAVE FRESH BLOOD COMING FROM A WOUND
THAT HAS PREVIOUSLY CLOTTED IF YOU REMOVE THE OBSTRUCTION WHICH
WOULD BE THE CLOT OR SCAB.
Q BY MS. CLARK: IN WHICH WAY SOMEONE WOULD BLEED, STOP
BLEEDING AND BLEED AGAIN, CORRECT?
A THEY COULD, YES. UNDER THAT MECHANISM THEY WOULD.
Q NOW, SIR, YOU TESTIFIED CONCERNING THE FACT THAT YOU
SAW THE PHOTOGRAPHS OF THE ROCKINGHAM ADDRESS AND SAW NO BLOOD ON
THE LIGHT SWITCH AND NO BLOOD ON THE BEDSPREAD AND NO BLOOD --
THE COURT: EXCUSE ME, COUNSEL. I SUSTAINED THE OBJECTION
TO THAT.
MS. CLARK: NO, NOT TO THOSE.
THE COURT: YES, I DID.
MS. CLARK: OKAY.
THE COURT: TO PART OF THAT I SUSTAINED THE OBJECTION.
MS. CLARK: WHICH PART WAS IT? I CAN'T REMEMBER.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
THE COURT: I ALLOWED CARPETING AND THE BEDSPREAD.
MS. CLARK: OKAY. BUT NOT THE LIGHT SWITCH?
WAS THAT IT? ALL RIGHT.
Q YOU TESTIFIED THAT YOU SAW NO BLOOD ON THE CARPET AND
NO BLOOD ON THE BEDSPREAD; IS THAT CORRECT?
MR. NEUFELD: OBJECTION, MISSTATES THE TESTIMONY.
THE COURT: OVERRULED.
THE WITNESS: I DIDN'T OBSERVE THOSE -- THE CARPET UNTIL
MUCH LATER. THE PHOTOGRAPHS OF THE CARPET I OBSERVED AND THE
BEDSPREAD, BUT I DIDN'T OBSERVE THE BEDSPREAD ITSELF.
Q SO YOU OBSERVED PHOTOGRAPHS OF THOSE ITEMS, CORRECT?
A THAT IS CORRECT.
Q YOU HAVE TESTIFIED, SIR, PREVIOUSLY, THAT THE ABSENCE
OF BLOOD DOES NOT NECESSARILY MEAN THAT THERE IS
NON-PARTICIPATION IN THE CRIME; ISN'T THAT CORRECT?
A ABSENCE OF BLOOD ON A PERSON, YES.
Q WELL, HOW WOULD THAT BLOOD, SIR, IN YOUR OPINION,
HAVE GOTTEN TO THE BEDSPREAD OR THE CARPET IF NOT FROM THE
PERSON OF THE MURDERER?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
MS. CLARK: YES.
Q SIR, IF YOU WERE TO SEE BLOOD ON THE BEDSPREAD OR ON
A CARPET IN THE ROOM OF THE MURDERER, YOU WOULD EXPECT THAT THAT
WOULD COME FROM THE CLOTHING OR THE BODY OF THE MURDERER ITSELF,
WOULD YOU NOT?
MR. NEUFELD: OBJECTION AS TO HER CHARACTERIZATION USING
THE WORD "MURDERER."
THE COURT: OVERRULED.
THE WITNESS: AGAIN I WOULD EXPECT TO SEE TRANSFERS IF YOU
HAVE BLOOD ON SOMETHING AND YOU TOUCH SOMETHING ELSE, BUT I CAN'T
DO MORE THAN SPECULATE THAT IF A PERSON HAS BLOOD ON THEM AND
THEY GET INTO A ROOM, THEY MAY TRANSFER IT WHEN IT ISN'T THERE.
Q BY MS. CLARK: SIR, THE QUESTION I ASKED YOU WAS A
VERY SIMPLE ONE.
IF YOU SEE -- IF A MURDERER COMMITS A MURDER, GETS
BLOOD ON HIM, THEN GOES BACK TO HIS ROOM, THE MECHANISM OF
TRANSFER, IF YOU FIND BLOOD IN THE ROOM, WOULD BE HIMSELF, HIS
CLOTHING, HIS BODY, CORRECT?
A YES.
Q YOU HAVE PREVIOUSLY TESTIFIED, SIR, THAT THE ABSENCE
OF BLOOD ON A PERPETRATOR DOES NOT INDICATE NON-PARTICIPATION IN
A VIOLENT ACT, CORRECT?
A THAT IS CORRECT.
Q AND WHEN WE DISCUSSED THIS BEFORE, YOU INDICATED AS
WELL THAT ALTHOUGH ATTORNEYS MAY WANT TO ARGUE THAT THE ABSENCE
OF BLOOD ON A -- ON THEIR CLIENT INDICATES THAT HE DID NOT COMMIT
THE BLOODY ACT, YOU HAVE ADVISED THEM THAT THAT IS NOT THE CASE,
THAT THAT IS A MISCONCEPTION, HAVE YOU NOT?
MR. NEUFELD: OBJECTION, ARGUMENTATIVE AND IRRELEVANT AS TO
WHAT HE ADVISED OTHER LAWYERS.
THE COURT: OVERRULED.
THE WITNESS: I HAVE SAID THAT THERE ARE EXCEPTIONS TO
EVERY RULE. IT IS POSSIBLE TO COMMIT A CRIME AND NOT GET BLOOD
ON YOU. MOST OFTEN YOU WILL SEE CLOTHING THAT HAS NO BLOOD ON IT
AND ASSUME THAT THE PERSON DID NOT PARTICIPATE, BUT WE WOULD
RATHER EXPLAIN SEEING THE BLOOD AND TRYING TO ESTABLISH THE
MECHANISM IT GOT THERE AND SPECULATE WHY IT DID, NOT BUT THAT IS
THE BASIS OF THAT ARTICLE.
Q BY MS. CLARK: WHICH IS THAT YOU MUST INTERPRET WHAT
YOU SEE AND NOT WHAT YOU DO NOT SEE?
A CORRECT.
Q AND IN THAT ARTICLE, SIR, DO YOU NOT
SAY --
MR. NEUFELD: YOUR HONOR, I'M GOING TO OBJECT AS BEYOND THE
SCOPE.
THE COURT: SUSTAINED.
Q BY MS. CLARK: SIR, ISN'T IT TRUE THAT PEOPLE WILL
WEAR, IN YOUR EXPERIENCE, PROTECTIVE CLOTHING, SUCH AS GLOVES, TO
PREVENT GETTING BLOOD ON THEM?
MR. NEUFELD: OBJECTION, BEYOND THE SCOPE OF THE DIRECT AND
--
THE COURT: SUSTAINED.
MR. NEUFELD: REDIRECT EXAMINATION.
THE COURT: SUSTAINED.
MS. CLARK: ISN'T THAT --
THE COURT: SUSTAINED.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: NOTHING FURTHER -- I HAVE NOTHING FURTHER.
MR. NEUFELD: YOUR HONOR, I HAVE TWO QUESTIONS BUT I WOULD
LIKE A SIDE BAR FIRST BEFORE I ASK THE QUESTIONS, AND I WANT TO
FINISH THE WITNESS THIS MORNING, IF WE MAY.
THE COURT: AS WOULD I.
MR. NEUFELD: THANK YOU.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
MR. NEUFELD.
MR. NEUFELD: YES, YOUR HONOR.
IT IS OUR POSITION THAT -- THAT MISS CLARK'S
HYPOTHETICAL ON RECROSS ABOUT THE BLOOD BEING WET WHILE THE SOCKS
WERE LYING ON THE FLOOR IN MR. SIMPSON'S ROOM OPENS THE DOOR TO
MAC DONELL'S TESTIFYING ABOUT THE DRYING TIME OF BLOOD, BECAUSE
SHE IS PUTTING OUT THE SUGGESTION THAT IT WOULD STILL BE WET.
IT IS THIS WITNESS' OPINION THAT IT WOULDN'T BE WET.
AS A MATTER OF DUE PROCESS WE HAVE THE RIGHT TO REBUT HER
ARGUMENT, AND IF WE CAN'T REBUT IT, OUR HANDS ARE TIED AND MR.
SIMPSON IS UNABLE TO, UNDER THE CONFRONTATION CLAUSE, UNDER THE
DUE PROCESS CLAUSE, PUT ON A DEFENSE TO THIS SUGGESTION PUT FORTH
BY THE PROSECUTION.
THE COURT: MISS CLARK.
MS. CLARK: NO, YOUR HONOR.
A HYPOTHETICAL THAT DOES NOT IMPLICATE THE SOCK
DRYING EXPERIMENT DOES NOT ALLOW THEM TO GET INTO THAT SOCK
DRYING EXPERIMENT WHICH IS PROPERLY RULED TO BE IRRELEVANT
BECAUSE OF SUCH -- OF SUCH LACK OF SIMILARITY.
THE REASON THAT SOCK DRYING EXPERIMENT WAS
INADMISSIBLE IS BECAUSE OF ITS LACK OF SUBSTANTIAL SIMILARITY AND
THAT REASON STILL APPLIES.
WE DON'T HAVE SIMILAR CONDITIONS THAT ARE REQUIRED
FOR ITS RELEVANCE. IT IS NOT RELEVANT AND THAT IS WHY I POSED A
HYPOTHETICAL.
COUNSEL IS ENTITLED TO COUNTER THAT WITH HIS OWN
HYPOTHETICAL. THAT IS FINE. AND THE HYPOTHETICAL THAT COUNSEL
OBVIOUSLY COUNTERS WITH AND HAS GONE INTO AT LENGTH ALREADY IS
THAT IF THE STAINS ARE ALREADY DRIED, THEN IT COULD NOT HAVE
OCCURRED IN THAT FASHION, AND THAT IS THE APPROPRIATE METHOD.
BUT TO GO INTO AN EXPERIMENT THAT WAS PROPERLY RULED
IRRELEVANT BECAUSE NO EFFORT WAS EVEN MADE, ADMITTEDLY NOT MADE,
TO REPLICATE THE CONDITIONS, HAS NO BASIS IN FACT AT ALL AND NO
BASIS IN LAW.
MR. NEUFELD: I'M NOT GOING TO ASK HIM ABOUT THE SOCK
DRYING EXPERIMENT. HE IS GOING TO BASE HIS OPINION BASED ON HIS
FORTY YEARS' OF EXPERTISE IN DRYING TIMES.
MS. CLARK: THAT IS AGAIN THE SAME PROBLEM, EVEN WORSE.
THE COURT: ALL RIGHT.
THE COURT'S PREVIOUS RULINGS STANDS.
MR. NEUFELD: OKAY.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
MR. NEUFELD: MAY I?
THE COURT: THANK YOU, COUNSEL.
FURTHER REDIRECT EXAMINATION
BY MR. NEUFELD:
Q PROFESSOR MAC DONELL, THE PROSECUTOR ASKED YOU ABOUT
WHETHER OR NOT YOU HAD DONE ANY EXPERIMENTS ON THE SOCKS TO TEST
FOR THE PERSPIRATION AT ANY EARLIER TIME.
ARE ANY SUCH EXPERIMENTS POSSIBLE?
MS. CLARK: OBJECTION. THAT CALLS FOR SPECULATION, YOUR
HONOR.
THE COURT: OVERRULED.
THE WITNESS: CERTAINLY THEY ARE POSSIBLE.
Q BY MR. NEUFELD: WHAT WOULD THE EXPERIMENT BE?
A YOU WOULD HAVE TO GET SOMEONE EXERTING THEMSELVES TO
THE POINT WHERE THEY PERSPIRED PROFUSELY TO SOAK THROUGH FROM THE
INSIDE TO THE OUTSIDE OF THE SOCK.
Q IN ADDITION TO EXPERIMENTS, SIR, CAN SOMEBODY WHO IS
TRAINED MAKE AN ASSESSMENT ON WHETHER OR NOT THOSE SOCKS WERE
SOAKED IN PERSPIRATION AT ABOUT THE TIME THAT THE BLOOD WAS PUT
ON THEM?
MS. CLARK: OBJECTION. THAT CALLS FOR SPECULATION.
THE COURT: OVERRULED.
MS. CLARK: BEYOND THE SCOPE OF HIS EXPERTISE, YOUR HONOR.
THE WITNESS: YES.
THE COURT: OVERRULED.
Q BY MR. NEUFELD: AND DID YOU DO THAT, SIR?
A I EXAMINED THE PHOTOGRAPH AGAIN WHICH SHOWED VERY
CLEAR STAINING AND NO EVIDENCE OF DILUTION OR DIFFUSION.
MS. CLARK: OBJECTION. THAT IS SPECULATION AGAIN, BEYOND
HIS EXPERTISE.
THE COURT: OVERRULED. OVERRULED.
Q BY MR. NEUFELD: AND HAD THERE BEEN EXTENSIVE
PERSPIRATION, WOULD THERE BE EVIDENCE OF DIFFUSION?
MS. CLARK: OBJECTION. SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
MS. CLARK: NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: I WOULD EXPECT TO SEE IT, YES.
Q BY MR. NEUFELD: MISS CLARK JUST ASKED YOU ANOTHER
QUESTION ABOUT SOCKS BEING TAKEN OFF WHEN THEY ARE WET IN THE
BEDROOM.
FROM WHAT YOU KNOW ABOUT THE CASE AND YOUR
OBSERVATIONS OF THE SOCKS, SIR, DO YOU HAVE ANY REASON TO BELIEVE
THAT THE SOCKS WERE WET AT THE TIME THEY WERE REMOVED IN THAT
BEDROOM?
MS. CLARK: OBJECTION, OBJECTION.
THE COURT: SUSTAINED.
MR. NEUFELD: NOTHING FURTHER, YOUR HONOR.
THE COURT: ANYTHING FURTHER?
MS. CLARK: NOTHING FURTHER.
THE COURT: ALL RIGHT.
MR. MAC DONELL, THANK YOU VERY MUCH. YOU ARE
EXCUSED.
LADIES AND GENTLEMEN, WE WILL TAKE OUR RECESS FOR THE
AFTERNOON SESSION.
PLEASE REMEMBER ALL OF MY ADMONITIONS TO YOU.
DON'T DISCUSS THE CASE AMONG YOURSELVES, DON'T FORM
ANY OPINIONS ABOUT THE CASE, DON'T CONDUCT ANY DELIBERATIONS
UNTIL THE MATTER HAS BEEN SUBMITTED TO YOU, DO NOT ALLOW ANYBODY
TO COMMUNICATE WITH YOU WITH REGARD TO THE CASE.
WE WILL STAND IN RECESS UNTIL 1:00 P.M.
AND COUNSEL, IF YOU RECOLLECT, WE HAVE AN EARLY
RECESS TODAY AT 3:45 FOR A JUROR APPOINTMENT, BUT WE DO HAVE SOME
LEGAL ISSUES TO TAKE UP.
MR. COCHRAN: MAY WE APPROACH ON ONE MATTER, YOUR HONOR?
THE COURT: SURE.
ALL RIGHT. LET'S CLEAR.
(A CONFERENCE WAS HELD AT THE
BENCH, NOT REPORTED.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
(AT 12:05 P.M. THE NOON RECESS
WAS TAKEN UNTIL 1:30 P.M. OF
THE SAME DAY.)
LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 1, 1995
1:40 P.M.
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
APPEARANCES:
(APPEARANCES AS HERETOFORE NOTED.)
(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE
M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
BACK ON THE RECORD IN THE SIMPSON MATTER.
ALL PARTIES ARE AGAIN PRESENT.
ALL RIGHT.
ARE WE READY TO PROCEED WITH THE NEXT WITNESS?
MR. NEUFELD: YOUR HONOR, AS I MENTIONED TO YOU YESTERDAY,
BECAUSE OF THE MATTER INVOLVING TRACIE SAVAGE AND MICHELE
KESTLER, THE ONLY OTHER TESTIMONY WE HAVE THIS AFTERNOON WILL BE
THE READING OF THE GRAND JURY TESTIMONY OF MR. PERATIS AND THEN
PLAYING THE VIDEOTAPE OF THE PRELIMINARY HEARING TESTIMONY OF MR.
PERATIS, AND THEN WE WILL RESUME WITH LIVE TESTIMONY TOMORROW
MORNING WITH DR. JOHN GERDES.
I NEED TO KNOW FROM YOU THOUGH, BECAUSE I HAVE TO GET
MR. SCHECK HERE, WHEN DO YOU WANT TO HEAR ARGUMENT ON THAT
CONTAMINATION MOTION? I'LL HAVE SOMEONE CALL WHERE HE IS. HE'S
OVER ON THE WEST SIDE OF TOWN. HE CAN BE HERE IN 30 MINUTES.
BUT I ASKED YOU BEFORE TO MAKE THAT THE LAST ORDER OF BUSINESS AS
OPPOSED TO THE FIRST.
THE COURT: I WOULD SUGGEST THAT WE DO IT AFTER WE'VE
CONCLUDED ALL THE OTHER MATTERS TODAY, THIS AFTERNOON.
MR. NEUFELD: OKAY.
ALL RIGHT.
THE COURT: AND FROM MY RECOLLECTION OF THE TAPE RECORDING
OR THE GRAND JURY TESTIMONY, THAT PROBABLY WILL ONLY TAKE WHAT,
EIGHT OR 10 MINUTES?
MR. NEUFELD: I THINK THERE ARE TWO GENTLEMEN WHO WILL READ
THE GRAND JURY TESTIMONY, WHICH SHOULD TAKE I WOULD SAY LESS THAN
THREE OR FOUR MINUTES, AND THEN THE PLAYING OF THE TAPE, WHICH
WILL TAKE LESS THAN 10 MINUTES, AND THEN I BELIEVE YOU HAVE THE
BOSCO MATTER AND THEN WE WOULD HAVE MR. SCHECK AND MR. CLARKE ON
THE CONTAMINATION.
THE COURT: ON THE GERDES MATTER.
ALL RIGHT. SOUNDS LIKE A PLAN.
MR. NEUFELD: IS THAT CONSISTENT WITH --
OKAY.
THE COURT: HOW DO YOU PROPOSE TO PROCEED AT THIS POINT
THEN?
MR. COCHRAN: WELL, YOUR HONOR, I WOULD PROPOSE THAT WE
NEED SOMEONE TO PLAY MARCIA CLARK, YOUR HONOR, AND I SEARCHED ALL
AROUND AND I CAME UP WITH MR. DOUGLAS WHO WILL DO THAT I BELIEVE,
AND MR. SCHECK WILL BE MR. PERATIS, THE NURSE. WELL, MR. --
STRIKE THAT. MR. BLASIER, BOB BLASIER WILL BE MR. PERATIS.
THE COURT: ALL RIGHT.
MR. COCHRAN: WE'RE READY TO PROCEED IF YOU ARE, YOUR
HONOR.
THE COURT: ALL RIGHT.
MR. GOLDBERG.
MR. COCHRAN: FROM THE WITNESS STAND? WHY DON'T WE TAKE
THE --
THAT'S FINE.
MR. GOLDBERG: YOUR HONOR, I DON'T KNOW WHETHER THEY WERE
PLANNING ON BREAKING BEFORE SUPPOSEDLY PLAYING THIS TAPE OF THE
PRELIMINARY HEARING, BUT OBVIOUSLY THAT WOULD BE SOMETHING THAT
WOULD HAVE TO BE SCREENED. WE DON'T KNOW WHETHER THERE ARE
TELEVISION COMMENTATORS INTERRUPTING IT.
AND OF COURSE, THE PEOPLE WOULD OBJECT TO THE USING
OF THE VIDEOTAPE AT ALL SINCE THAT IS NOT THE OFFICIAL COURT
RECORD. THE OFFICIAL COURT RECORD IS THE WRITTEN TRANSCRIPT, AND
THERE IS NO EXCEPTION THAT I AM AWARE OF THAT WOULD ALLOW A
VIDEOTAPE THAT WAS CREATED BY A THIRD PARTY WHO IS NOT AN OFFICER
OF THE COURT, THAT KIND OF EVIDENCE TO BE ALLOWED IN WITHOUT ANY
FOUNDATION.
THE COURT: ALL RIGHT.
WHO WANTS TO ADDRESS THE USE OF A VIDEOTAPE FOR THE
PURPOSE OF PRIOR RECORDED TESTIMONY?
MR. GOLDBERG, ARE YOU INDICATING TO THE COURT THAT
YOU HAVE NOT SEEN THIS TAPE RECORDING BEFORE?
MR. GOLDBERG: I HAVEN'T SEEN WHAT THEY PROPOSE TO PLAY TO
THE JURY.
MR. SHAPIRO: YOUR HONOR, SINCE THIS IS --
THE COURT: I'M SORRY. HOW MANY LAWYERS ARE WE GOING TO
HAVE TALK ABOUT THIS?
MR. SHAPIRO: I AM.
MR. COCHRAN: HE'S ON THIS ISSUE, YOUR HONOR. HE WAS THERE.
THE COURT: ALL RIGHT.
MR. SHAPIRO: YOUR HONOR, MISS CLARK CALLED AS A WITNESS AT
THE PRELIMINARY HEARING MR. -- DOC -- MR. NURSE PERATIS, AND I
CROSS-EXAMINED HIM. IT WAS IN THE COURTROOM SETTING. IT WAS
UNDER OATH. IT WAS DONE UNDER THE SAME SETTINGS THAT YOU HAVE
HERE, AND I DON'T THINK THERE IS ANY QUESTION WHATSOEVER OF THE
ACCURACY OF THE --
I'M SORRY. MISS CLARK IS TRYING TO SAY SOMETHING?
MS. CLARK: I'M LISTENING TO MR. GOLDBERG.
MR. SHAPIRO: I'M SORRY. I THOUGHT YOU WERE WHISPERING TO
ME. EXCUSE ME.
THAT I DON'T THINK THERE IS ANY OBJECTION UNLESS MISS
CLARK WANTS TO REPRESENT TO YOUR HONOR THAT THOSE QUESTIONS THAT
SHE ASKED OR THE ANSWERS THAT WERE GIVEN BY MR. PERATIS ARE NOT
ACCURATE.
CLEARLY, THIS IS THE BEST WAY FOR THE JURY TO SEE
EXACTLY WHAT HAS HAPPENED IN THE TESTIMONY. THIS IS LIVE
TESTIMONY UNDER OATH AND IT IS MUCH BETTER THAN THE TRANSCRIPT
BECAUSE THE WORDS ARE NOT COMING FROM PEOPLE WHO ARE READING THE
WORDS. THE WORDS ARE COMING FROM THE WITNESS JUST AS IF YOU DID
A VIDEOTAPED DEPOSITION.
SO I THINK THIS IS AN -- AN ISSUE THAT --
THE COURT: YOU'RE TRYING TO SAY IT'S THE FORM OVER
SUBSTANCE OBJECTION IS WHAT YOU'RE TRYING TO SAY.
MR. SHAPIRO: EXACTLY. EXACTLY.
THANK YOU, YOUR HONOR.
THE COURT: MR. GOLDBERG.
MR. GOLDBERG: WELL, IT ISN'T A FORM OVER SUBSTANCE ISSUE.
I MEAN, WE MAY ARRIVE AT THE TIME WHERE WE COMMONLY USE
VIDEOTAPES MAYBE -- HOPEFULLY IN ADDITION TO COURT REPORTERS FOR
THE PURPOSES OF RECORDING WHAT HAPPENS IN THE COURT, BUT WE HAVE
NOT ARRIVED AT THAT POINT YET.
AND IN INSTANCES WHERE VIDEOTAPE HAS BEEN AUTHORIZED
BY THE COURT, IF IT HAD BEEN AUTHORIZED BY THE COURT, WHAT YOUR
HONOR WOULD HAVE UNDOUBTEDLY DIRECTED THE VIDEOGRAPHER TO DO
WOULD BE TO EXCLUSIVELY PHOTOGRAPH THE WITNESS. BUT SINCE THE
ONLY PHOTOGRAPHY WE HAVE OF THESE PROCEEDINGS IS DONE BY PEOPLE
WHO ARE NOT WITHIN THE COURT'S DIRECT CONTROL, THEY SOMETIMES
SHOW THE WITNESS, THEY SOMETIMES SHOW THE ATTORNEY, THEY
SOMETIMES PAN OVER TO THE DEFENDANT TO CAPTURE HIS REACTION OR
THE REACTIONS OF OTHER PEOPLE THAT ARE SITTING AT COUNSEL TABLE
AND OCCASIONALLY PAN OVER TO YOUR HONOR TO CAPTURE THE COURT'S
REACTION.
ALL OF THOSE KINDS OF THINGS WOULD BE THINGS THAT THE
COURT WOULD NOT PERMIT IF THE VIDEOGRAPHER WERE UNDER THE COURT'S
DIRECT CONTROL, THEIR EDITORIALIZATIONS OF WHAT IS HAPPENING IN
COURT THAT ARE NOT PROPER.
AND I THINK THAT THIS WHOLE ISSUE IS MORE SIGNIFICANT
THAN SIMPLY RELATING TO THE QUESTION OF THANO PERATIS' TESTIMONY
BECAUSE I WOULD ASSUME, AS PERHAPS HAS ALREADY BEEN BROUGHT TO
THE COURT'S ATTENTION, THAT ONE OR BOTH OF THE PARTIES MIGHT WANT
TO USE VIDEOTAPED PORTIONS OF THE TRIAL IN CLOSING ARGUMENT.
I THINK WE GET INTO SOME OF THE SAME PROBLEMS THERE
AS WELL, GIVEN THAT WE DO NOT HAVE AN OFFICIAL RECORD AND WE HAVE
A SITUATION WHERE WE DON'T KNOW EXACTLY WHO THE CAMERA WAS
FOCUSING ON UNLESS WE HAVE PREVIEWED THAT PARTICULAR VIDEO
SNIPPET.
AND WE ALSO HAVE TIMES I BELIEVE, ALTHOUGH I'M NOT
POSITIVE, WHERE NOT EVERYTHING HAS BEEN CAPTURED ON TAPE WITH
RESPECT TO A SINGLE WITNESS, WHERE THE ORGANIZATION, NEWS
ORGANIZATION MAY HAVE INTERRUPTED FOR TELEVISION COMMERCIALS.
I'M NOT A HUNDRED PERCENT POSITIVE THAT EVERY SINGLE WITNESS, A
HUNDRED PERCENT OF THAT WITNESS' TESTIMONY IS ON TAPE.
SO THERE ARE SOME PROBLEMS THAT THIS PRESENTS FURTHER
DOWN THE ROAD WHEN WE GET TO CLOSING ARGUMENT AS WELL, YOUR
HONOR.
THE COURT: ALL RIGHT.
LET'S LOOK AT THE -- I HAD NOT CONTEMPLATED THE
VARIOUS EDITORIAL ISSUES, WHAT THE VIDEOTAPE ACTUALLY SHOWS AND
HOW MUCH IS ACTUALLY MR. PERATIS AND HOW MUCH IS EXTRANEOUS
MATTERS.
SO THIS TAPE IS ONLY ABOUT EIGHT OR 10 MINUTES.
LET'S SEE THE TAPE.
MR. NEUFELD: THE TAPE YOU ARE GOING TO SEE, YOUR HONOR,
HAS THE ONE REDACTION AS ORDERED BY THE COURT; THAT THERE WAS ONE
OBJECTION MADE BY MARCIA CLARK WHICH WAS SUSTAINED BY THE COURT.
OTHERWISE, IT IS THE VERBATIM TAPE.
THE COURT: ALL RIGHT.
LET'S SEE IT.
(AT 1:45 P.M., A VIDEOTAPE
WAS PLAYED.)
(AT 1:55 P.M., THE PLAYING OF
THE VIDEOTAPE WAS CONCLUDED.)
THE COURT: ALL RIGHT.
MR. BANCROFT, WERE YOU THE VIDEOGRAPHER ON THAT?
MR. BANCROFT: YES, YOUR HONOR.
THE COURT: ALL RIGHT.
ALL RIGHT. THE COURT HAS OBSERVED THE VIDEOTAPE,
WHICH I THINK WE SHOULD MARK DEFENDANT'S NEXT IN ORDER IF WE HAVE
NOT ALREADY.
THE CLERK: 1283.
THE COURT: 1283.
(DEFT'S 1283 FOR ID = VIDEOTAPE)
THE COURT: AND, MR. GOLDBERG, DO YOU HAVE ANY FURTHER
ARGUMENT IN OPPOSITION TO THE USE OF THE VIDEOTAPE?
MR. GOLDBERG: YOUR HONOR, THE PROBLEM WITH THE VIDEOTAPE,
AS THE COURT MAY HAVE NOTICED IN PARTICULAR, IS THAT A COUPLE
TIMES, IT PANS OVER TO THE DEFENDANT. OF COURSE, IT ALSO PANS
OVER TO THE ATTORNEYS, ALTHOUGH I'M NOT CERTAIN THAT THAT
PARTICULAR FEATURE IS PREJUDICIAL TO US PER SE IN THIS PARTICULAR
INSTANCE.
SHOWING THE DEFENDANT MAY BE -- SIMILARLY, SHOWING
THE VICTIM'S FAMILY MAY BE SOMEWHAT PREJUDICIAL OR AT LEAST
UNNECESSARY AS FAR AS THE DEFENSE IS CONCERNED.
SO IF THE COURT WERE INCLINED, AND WE THINK THAT THE
COURT SHOULD IF THIS VIDEOTAPE IS GOING TO BE USED, CUT OUT THE
PANS TO THE DEFENDANT, THAT IT WOULD ALSO BE FAIR TO CUT OUT THE
PANS TO THE AUDIENCE AS WELL.
I DON'T THINK THAT THE PEOPLE AS A TACTICAL MATTER
ARE PARTICULARLY PREJUDICED IF THE COURT WERE TO MAKE THOSE
DELETIONS IN SHOWING THIS VIDEOTAPE. BUT THE CONCERN THAT WE DO
HAVE IS THAT IF THE COURT ALLOWS THIS VIDEOTAPE, THE COURT WILL
ALLOW OTHER VIDEOTAPES AND WE WILL ALWAYS BE CONFRONTED WITH THE
SAME KINDS OF PROBLEMS THAT THE COURT SAW HERE.
FOR EXAMPLE, IF IN THE CLOSING ARGUMENT THEY WERE TO
BE USED AND THE DEFENSE WERE TO SAY, "WELL, LOOK AT HOW THIS
WITNESS REACTED WHEN THEY WERE ASKED SUCH AND SUCH AND LOOK AT
HIS DEMEANOR," AND THEN THE PEOPLE WANTED TO PUT THAT INTO
CONTEXT BY SHOWING SOME OTHER SNIPPET, BUT THAT SNIPPET WAS
EITHER NOT CAPTURED AT ALL OR DURING THAT PART OF THE TESTIMONY,
THEY WERE PANNING TO THE DEFENDANT OR TO ONE OF THE ATTORNEYS,
THAT WOULD BE SIMPLY BE FUNDAMENTALLY UNFAIR AND IT WOULD NOT
GIVE US THE OPPORTUNITY, OR IF WE WERE TO DO IT, WOULD NOT GIVE
THE DEFENSE THE OPPORTUNITY NECESSARILY TO TRY TO USE THE
REMAINING PORTIONS OF THE VIDEOTAPE TO PLACE INTO CONTEXT.
THE COURT: WELL, THAT'S A DIFFERENT ISSUE, COUNSEL. LET'S
CONCENTRATE ON THIS.
MR. GOLDBERG: WELL, BECAUSE I'M CONCERNED, I'M VERY
CONCERNED THAT THIS IS GOING TO SET A PRECEDENT AND THAT IF THE
COURT IS GOING TO ALLOW THIS VIDEOTAPE, AND NOT NOTWITHSTANDING
--
THE COURT: WELL, THERE'S A HUGE DIFFERENCE BETWEEN
ALLOWING SOMETHING AS SUBSTANTIVE EVIDENCE AND ALLOWING ITS USE
IN ARGUMENT; DON'T YOU THINK?
MR. GOLDBERG: I THINK THAT THERE'S A DIFFERENCE, BUT THE
PRINCIPAL IS THE SAME. AND THAT IS, WHAT CAN WE USE WHEN WE ARE
QUOTING THE COURT RECORD AND THE COURT TRANSCRIPT, WHAT IS THE
APPROPRIATE MEDIUM THAT WE ARE USING. IS IT A VIDEOTAPE OR IS IT
WHAT HAS ALWAYS HISTORICALLY BEEN, THAT IS WHAT THE COURT
REPORTER HAS GENERATED. SO THE UNDERLYING PRINCIPAL IS THE SAME.
AND, THEREFORE, WE ARE CONCERNED THAT IF THE COURT
RULES TODAY THAT FOR EVIDENTIARY PURPOSES, WE CAN USE THE
VIDEOTAPE, THAT THE COURT IS GOING TO RULE THE SAME AT THE TIME
OF THE CLOSING ARGUMENTS AND SUGGEST THAT FOR ARGUMENT, WE COULD
ALSO USE THE VIDEOTAPE.
SO MY POINT IS, YOUR HONOR, ALTHOUGH I DON'T THINK
THAT THE PROSECUTION IS NECESSARILY PREJUDICED IN THIS INSTANCE
THROUGH THE USE OF THIS TAPE, EVEN THOUGH LEGALLY IT PROBABLY
ISN'T AUTHORIZED, WE ARE NOT PREJUDICED IF THE DELETIONS THAT I
REFERRED TO ARE MADE. WE STILL ARE VERY CONCERNED THAT THIS
PRECEDENT MIGHT ALLOW THE COURT TO THEN ALLOW EITHER PARTY OR
BOTH PARTIES TO USE VIDEOTAPED SEGMENTS IN THE CLOSING ARGUMENT
THAT COULD BE PREJUDICIAL TO BOTH SIDES.
THE COURT: ALL RIGHT.
WELL, MR. GOLDBERG, YOU SHOULD REST ASSURED THAT I
SEE THOSE AS SEPARATE AND DISTINCT ISSUES.
ALL RIGHT.
MR. SHAPIRO, ANY FURTHER COMMENT?
MR. SHAPIRO: YOUR HONOR, I THINK THE VIDEOGRAPHER CAPTURED
THE DEMEANOR OF THE WITNESS THAT YOU WOULD NOT GET IF THE
TESTIMONY WAS READ BY PARTIES PORTRAYING THEIR TESTIMONY. THE
JURY WHEN THEY SIT IN THE COURTROOM NOT ONLY SEES MR. SIMPSON AND
THE LAWYERS, BUT SEES THE AUDIENCE.
I SAW NO REACTIONS THAT ARE UNUSUAL EITHER FROM MR.
SIMPSON OR FROM THE GOLDMAN FAMILY, AND WE HAVE NO OBJECTION AND
THINK THE BEST WAY FOR THE JURY TO JUDGE THIS WITNESS, THIS
WITNESS' CREDIBILITY AND WHAT THIS WITNESS IS CALLED TO TESTIFY
FOR ON BEHALF OF THE DEFENSE IS FAIRLY AND ACCURATELY BEST
DEPICTED BY THIS VIDEO.
THANK YOU.
THE COURT: ALL RIGHT.
THANK YOU, COUNSEL.
I AGREE. I THINK ONE OF THE MOST IMPORTANT THINGS IS
FOR A JURY TO SEE AS WELL AS HEAR A WITNESS TESTIFY, AND THIS IS
ONE OF THE ADVANCES IN TECHNOLOGY THAT HAS BENEFICIAL TO THE
TRUTH FINDING PROCESS.
SO I'LL ALLOW THE USE OF THE VIDEOTAPE. IF THE
PROSECUTION HAS ANY DISCREPANCIES FROM THE OFFICIAL COURT
TRANSCRIPT THAT THEY WANT TO CHALLENGE WITH DURING THEIR
PRESENTATION OF THEIR CASE IN REBUTTAL, THEY'RE ENTITLED TO DO
SO.
ALL RIGHT.
LET'S HAVE THE JURY, PLEASE.
MR. GOLDBERG: IS THE COURT NOT GOING TO EDIT EITHER?
THE COURT: NO.
MR. NEUFELD: CAN I CALL MR. SCHECK AND TELL HIM TO GET --
MR. COCHRAN: DOES YOUR HONOR HAVE A COPY OF THE GRAND JURY
TRANSCRIPT?
THE COURT: I SHOULD HAVE.
MS. CLARK: YOUR HONOR, DOES THE COURT HAVE THE INSTRUCTION
TO READ TO THE JURY CONCERNING ADMISSIBILITY OF THE TESTIMONY?
THE COURT: NO, I DON'T.
MS. CLARK: MAY I GET IT FOR YOU, YOUR HONOR?
THE COURT: WHICH CALJIC IS THAT? I'M SORRY. I FORGOT
ABOUT THAT.
MR. COCHRAN: TALKING ABOUT A WITNESS BEING UNAVAILABLE.
WE'LL GET THAT.
MS. CLARK: I THINK IT OUGHT TO BE GIVEN TO THE JURY NOW IF
I CAN PULL IT.
MR. COCHRAN: MAY I GO BACK IN YOUR CHAMBERS AND GET A COPY
OF IT?
MS. CLARK: MAY I ASSIST MR. COCHRAN?
THE COURT: YOU MAY.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED.
ALL RIGHT.
LET THE RECORD REFLECT THAT WE'VE BEEN REJOINED BY
ALL THE MEMBERS OF OUR JURY PANEL.
GOOD AFTERNOON, LADIES AND GENTLEMEN.
THE JURY: GOOD AFTERNOON.
(BRIEF PAUSE.)
THE COURT: THANK YOU.
ALL RIGHT.
LADIES AND GENTLEMEN, GOOD AFTERNOON. SORRY FOR THAT
SHORT DELAY.
WE ARE NOW GOING TO PRESENT TO YOU TESTIMONY FROM A
WITNESS WHO IS PRESENTLY UNAVAILABLE, BUT WHO HAS PRESENTED
TESTIMONY IN OTHER PROCEEDINGS.
(READING)
YOU ARE INSTRUCTED THAT TESTIMONY GIVEN BY A WITNESS AT A
PRIOR PROCEEDING WHO IS UNAVAILABLE AT THIS TRIAL WILL BE
PRESENTED TO YOU BOTH IN THE FORM OF A VIDEOTAPE OF THAT WITNESS'
TESTIMONY AT THE PRELIMINARY HEARING AND FROM THE REPORTER'S
TRANSCRIPT OF THAT PROCEEDING. YOU MUST CONSIDER SUCH TESTIMONY
AS IF IT HAD BEEN GIVEN BEFORE YOU IN THIS TRIAL.
ALL RIGHT.
LET'S PROCEED.
ALL RIGHT.
WHICH MATTER DO YOU WISH TO PRESENT FIRST?
MR. COCHRAN: GRAND JURY.
THE COURT: ALL RIGHT.
THIS WILL BE THE GRAND JURY TESTIMONY FROM JUNE THE
22ND, 1994; IS THAT CORRECT?
MR. DOUGLAS: YES, YOUR HONOR.
THE COURT: AND, COUNSEL, MR. BLASIER, YOU ARE GOING TO
READ THE PART OF THE WITNESS; IS THAT CORRECT?
MR. BLASIER: I AM, YOUR HONOR.
THE COURT: AND, MR. CARL DOUGLAS, YOU ARE GOING TO PLAY
THE PART OF THE EXAMINER, MISS CLARK; IS THAT RIGHT?
MR. DOUGLAS: I'LL TRY, YOUR HONOR. YES.
THE COURT: ALL RIGHT.
YOU MAY PROCEED.
MR. DOUGLAS: FIRST, THE OATH, YOUR HONOR FROM THE
FOREPERSON?
THE COURT: YES.
MR. DOUGLAS: (READING)
THANO PERATIS, PLEASE RAISE YOUR RIGHT HAND.
THE COURT: EXCUSE ME. LET'S START -- NO. WE START WITH
-- YOU DON'T NEED TO DO THAT.
LET'S START WITH, "MISS CLARK: PEOPLE CALL THANO
PERATIS."
MR. DOUGLAS: THANK YOU, YOUR HONOR.
(READING)
THE PEOPLE CALL THANO PERATIS. WE HAVE TO ADD HIM TO THE
LIST. T-H-A-N-O P-E-R-A-T-I-S.
THE FOREPERSON THEN SAYS:
(READING)
THANO PERATIS, PLEASE RAISE YOUR RIGHT HAND.
YOU DO SOLEMNLY SWEAR THE TESTIMONY YOU ARE ABOUT
TO GIVE IN THE MATTER NOW PENDING BEFORE THE GRAND JURY OF THE
COUNTY OF LOS ANGELES SHALL BE THE TRUTH, THE WHOLE TRUTH AND
NOTHING BUT THE TRUTH, SO HELP YOU GOD?
THE WITNESS: I DO.
THE FOREPERSON: PLEASE BE SEATED.
MR. PERATIS, PLEASE STATE AND SPELL YOUR FULL
NAME, SPEAKING DIRECTLY INTO THE MICROPHONE.
THE WITNESS: THANO M. PERATIS, T-H-A-N-O M. P-E-R-A-T-I-S.
FOREPERSON SAYS:
(READING)
THANK YOU. YOU MAY PROCEED.
BY MISS CLARK: THANK YOU.
TELL US WHAT YOU DO FOR A LIVING, MR. PERATIS.
ANSWER: I'M A REGISTERED NURSE.
QUESTION: WHERE DO YOU WORK?
ANSWER: PARKER CENTER JAIL.
THE COURT: EXCUSE ME, COUNSEL. WILL YOU GENTLEMEN SLOW
DOWN, PLEASE.
MR. DOUGLAS: SURELY.
THE COURT: THANK YOU.
MR. DOUGLAS: (READING)
QUESTION: AS A REGISTERED NURSE, DO YOU HAVE SOME
TRAINING?
ANSWER: SORRY?
QUESTION: DO YOU HAVE A HARD TIME HEARING ME, SIR? CAN
YOU HEAR ME NOW?
ANSWER: YEAH. THAT'S BETTER.
QUESTION: WHAT IS YOUR TRAINING TO BECOME A NURSE?
ANSWER: I WENT TO NURSING SCHOOL.
QUESTION: DID YOU RECEIVE A DEGREE AS A REGISTERED NURSE?
ANSWER: YES, MA'AM.
QUESTION: AS SUCH, ARE YOU QUALIFIED TO REMOVE BLOOD FROM
PEOPLE IN A MEDICALLY-APPROVED MANNER?
ANSWER: YES.
QUESTION: AND THAT PART OF THE DUTIES YOU PERFORM --
THE COURT: EXCUSE ME, COUNSEL. REREAD THAT, PLEASE.
MR. DOUGLAS: (READING)
QUESTION: IS THAT PART OF THE DUTIES YOU PERFORM
AS THE NURSE AT THE JAIL DISPENSARY AT PARKER CENTER HERE IN LOS
ANGELES COUNTY?
ANSWER: YES, IT IS.
QUESTION: AND ON JUNE 13TH, 1994, WERE YOU WORKING THAT
DAY, SIR?
ANSWER: YES, MA'AM.
QUESTION: AT PARKER CENTER IN YOUR USUAL CAPACITY AS A
REGISTERED NURSE?
ANSWER: YES.
QUESTION: WERE YOU REQUESTED TO REMOVE BLOOD FROM THE ARM
OF A PERSON BY THE NAME OF MR. ORENTHAL JAMES SIMPSON?
ANSWER: NOT QUITE WITH THAT. THE INITIALS WERE O.J.
SIMPSON. YES.
QUESTION: DID YOU REMOVE A BLOOD SAMPLE FROM THAT PERSON?
ANSWER: YES, I DID.
QUESTION: ON JUNE 13?
ANSWER: YES.
QUESTION: I WILL SHOW YOU PEOPLE'S 23, AND YOU TELL ME IF
THAT'S THE PERSON YOU REMOVED BLOOD FROM.
ANSWER: YES, IT IS.
QUESTION: CAN YOU DESCRIBE FOR US WHAT IS THE METHOD BY
WHICH YOU REMOVED BLOOD FROM MR. SIMPSON?
ANSWER: I PUT A TOURNIQUET ON HIS ARM, CLEANED THE SIGHT
WITH AQUEOUS ZEPHIRAN AND PUT A 10-CC SYRINGE WITH ABOUT A NO. 20
NEEDLE IN THE VEIN IN HIS ARM AND I WITHDREW ABOUT 8 CC'S OF
BLOOD. AND I THEN PUT THE BLOOD INTO A TEST TUBE THAT HAD A
PRESERVATIVE CALLED EDTA AND THEN HANDED IT TO THE OFFICER, TO
THE DETECTIVE AND THEN PUT A DRESSING ON HIM.
QUESTION: ON THE ARM?
ANSWER: YES.
QUESTION: APPROXIMATELY HOW MUCH BLOOD DID YOU REMOVE?
ANSWER: APPROXIMATELY 8 CC'S.
QUESTION: AND THE MANNER IN WHICH YOU REMOVED THAT BLOOD,
DID IT AVOID ANY CONTAMINATION OF THE BLOOD?
ANSWER: OH, DEFINITELY.
QUESTION: AND THE MANNER IN WHICH YOU PACKAGED IT, WAS IT
ALSO SEALED TO PREVENT ANY CONTAMINATION?
ANSWER: YES, MA'AM.
QUESTION: DID YOU THEN PUT IT IN SOME KIND OF A PACKAGE?
ANSWER: I HANDED IT TO ONE OF THE DETECTIVES WHO PUT IT
INTO A LARGE GRAY ENVELOPE.
QUESTION: DID YOU HAND IT TO DETECTIVE PHILLIP VANNATTER?
ANSWER: VANNATTER, YES.
MS. CLARK: I HAVE NOTHING FURTHER.
THE COURT: ALL RIGHT.
THANK YOU, GENTLEMEN.
ALL RIGHT.
LADIES AND GENTLEMEN, WE ARE NEXT GOING TO EXHIBIT TO
YOU A VIDEOTAPE OF MR. PERATIS' TESTIMONY DURING THE PRELIMINARY
HEARING.
YOU WILL NOTICE THAT THERE IS ONE BLIP IN THE TAPE.
IT IS AN EDIT OF SOME MATERIAL THAT I ORDERED REMOVED FROM THE
TAPE BEFORE IT WAS PLAYED TO YOU. SO IF YOU SEE THAT BLIP,
THAT'S WHAT THAT IS.
ALL RIGHT.
AND MR. -- WHO'S PRESENTING THIS? MR. SHAPIRO?
MR. SHAPIRO: YES.
THE COURT: WE NEED A STATEMENT REGARDING DATE AND TIME OF
THE PROFFERED EVIDENCE.
MR. SHAPIRO: YES, YOUR HONOR.
WE CALLED AS A WITNESS JULY 7TH, 1994 AT THE
PRELIMINARY HEARING IN THIS MATTER WITNESS THANO PERATIS.
THE COURT: JULY 7 AS A PROSECUTION WITNESS.
MR. SHAPIRO: I'M SORRY. THE PROSECUTION CALLED AS A
WITNESS AT THE PRELIMINARY HEARING.
THE COURT: ALL RIGHT.
JULY 7.
MR. SHAPIRO: AND CALLED BY MISS CLARK, WAS CROSS-EXAMINED
BY MYSELF.
THE COURT: ALL RIGHT.
LET'S PROCEED.
MR. SHAPIRO: THANK YOU, YOUR HONOR.
(AT 2:12 P.M., DEFENDANT'S EXHIBIT
1283, A VIDEOTAPE, WAS PLAYED.)
(AT 2:22 P.M., THE PLAYING OF
THE VIDEOTAPE WAS CONCLUDED.)
THE COURT: ALL RIGHT.
LET ME SEE COUNSEL WITHOUT THE REPORTER, PLEASE.
(A CONFERENCE WAS HELD AT THE
BENCH, NOT REPORTED.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: ALL RIGHT.
LADIES AND GENTLEMEN, I HAVE A MATTER THAT I NEED TO
TAKE UP OUT OF YOUR PRESENCE WITH THE ATTORNEYS. LET ME ASK YOU
TO STEP BACK IN THE JURY ROOM, AND WE'LL SUMMON YOU OUT SHORTLY.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
LET THE RECORD REFLECT THAT THE JURY HAS WITHDRAWN
>FROM THE COURTROOM.
MR. HARRIS, WOULD YOU TENDER THE VIDEOTAPE TO MRS.
ROBERTSON.
MR. HARRIS: YES, YOUR HONOR.
THE COURT: WE'LL MARK THE TRANSCRIPT OF THE GRAND JURY
TESTIMONY OF JUNE 22ND, 1994 AS DEFENSE EXHIBIT NEXT IN ORDER,
1284, AND THE VIDEOTAPE WILL BE MARKED DEFENSE 1285.
THE CLERK: IT'S MARKED 1283.
THE COURT: I'M SORRY. 1283?
THANK YOU.
(DEFT'S 1284 FOR ID = GJ TRANSCRIPT)
THE COURT: ALL RIGHT.
MR. SHAPIRO.
MR. SHAPIRO: THANK YOU VERY MUCH, YOUR HONOR.
YOUR HONOR, THE NEXT WITNESS WE WOULD LIKE TO CALL IS
MR. JOSEPH BOSCO. WE WOULD LIKE TO CALL HIM FOR A VERY, VERY
SPECIFIC AND LIMITED PURPOSE ONLY.
I TALKED TO MR. BOSCO LAST WEEK BEFORE HE WAS
SUBPOENAED. HE AGREED TO ACCEPT SERVICE OF SUBPOENA AND AGREED
THAT THE ARTICLE THAT HE HAD PUBLISHED -- THAT HE HAD WRITTEN
THAT WAS PUBLISHED IN PENTHOUSE MAGAZINE IN THE JULY ISSUE TRULY
AND ACCURATELY REFLECTED A DISCUSSION HE HAD, AND THE RELEVANT
PART OF THAT ARTICLE THAT WE WISH TO PRESENT TO THE JURY IS AS
FOLLOWS:
THAT,
"THERE HAS BEEN ENOUGH LEAKING OUT THERE TO SINK CAMP O.J.
IF IT WERE ON A BARGE BY THE DEFENSE AND THE PROSECUTION ALIKE.
BUT BOTH ARE PIKERS COMPARED TO THE LOS ANGELES POLICE
DEPARTMENT.
"IT BEGAN LAST SUMMER WITH THE LAPD PASSING OUT 911 TAPES
TO JOURNALISTS AS IF THEY WERE COURTESY TRINKETS WELCOMING THEM
TO TOWN AND REACHED ITS MATER WITH THE, QUOTE, DNA SOCK MATCH
STORY.
"OF THE LATTER, I KNOW THIS.
WITHIN TWO HOURS OF JUDGE ITO ADMONISHING THE POLICE
FOR, QUOTE, RECKLESS DISREGARD OF THE TRUTH, LAPD'S WORSE MOMENT
TO THAT DATE, A CERTAIN POLICE OFFICER WHOSE LEAKS HAD HITHERTO
BEEN MOSTLY ACCURATE AND OFFERED WITH CORROBORATION STARTED
CALLING JOURNALISTS WITH THE STORY THAT BLOOD ON THE SOCKS FOUND
IN O.J.'S BEDROOM WAS A DNA MATCH WITH NICOLE'S. THIS TIME,
HOWEVER, THE OFFICER OFFERED NO CORROBORATION AND BECAME ANGRY
AND DEFENSIVE WHEN ASKED.
"A NUMBER OF JOURNALISTS TURNED HIM DOWN.
APPARENTLY KNBC DID NOT AND THE REST IS UGLY HISTORY FOR BOTH THE
PRESS AND THE LAPD."
WE WILL CALL HIM ONLY FOR THE LIMITED PURPOSE OF
PRESENTING TO THIS JURY THE RELEVANT TESTIMONY THAT THE
DISINFORMATION THAT WAS GIVEN WAS FROM A BADGED MEMBER OF THE LOS
ANGELES POLICE DEPARTMENT WHO WAS ACTING IN OFFICIAL CAPACITY AND
FOR NO OTHER PURPOSE.
THE COURT: HE WAS ACTING IN AN OFFICIAL CAPACITY?
MR. SHAPIRO: WELL, HE WAS ACTING AS A -- WAS AN ACTIVE
MEMBER OF THE POLICE DEPARTMENT.
THE COURT: ALL RIGHT.
MR. SHAPIRO: I DON'T THINK HE CAN SAY THAT HE WAS ACTING
IN AN OFFICIAL CAPACITY, BUT HE WAS ACTING AS A POLICE OFFICER,
AND THAT WOULD BE THE LIMITED PURPOSE ONLY OF CALLING HIM.
THE COURT: ALL RIGHT.
HAVE YOU CONSULTED WITH HIS COUNSEL?
MR. SHAPIRO: YES, I HAVE, AND THEY HAVE NO OBJECTION WITH
THAT LIMITATION.
THE COURT: ALL RIGHT.
AND DO WE HAVE MISS OSINSKI NOW PRESENT?
MR. SHAPIRO: YES, SHE IS.
MS. OSINSKI: GOOD AFTERNOON, YOUR HONOR.
THE COURT: ALL RIGHT.
MS. OSINSKI: I'M SORRY. I WAS NOT PRIVY TO THE
CONVERSATION THAT JUST TOOK PLACE.
THE COURT: ALL RIGHT.
MR. SHAPIRO HAS JUST MADE AN OFFER TO THE COURT OF
HIS PURPOSES FOR CALLING MR. BOSCO.
AND, MR. SHAPIRO, WOULD YOU REPEAT THAT FOR MISS
OSINSKI'S BENEFIT, PLEASE?
MR. SHAPIRO: YES.
AS I DISCUSSED WITH MISS OSINSKI AND MR. BOSCO, THE
LIMITED PURPOSE OF CALLING MR. BOSCO IS TO AUTHENTICATE AN
ARTICLE THAT WAS PUBLISHED IN PENTHOUSE MAGAZINE THAT WAS OFFERED
BY HIM THAT CONCERNS INFORMATION OR DISINFORMATION IF YOU WILL
THAT WAS GIVEN TO HIM BY A MEMBER OF THE LOS ANGELES POLICE
DEPARTMENT REGARDING A MATCH OF DNA. FOR THAT PURPOSE AND FOR NO
OTHER PURPOSE.
THE COURT: ALL RIGHT.
MISS OSINSKI, WHAT IS THE POSITION OF YOUR CLIENT?
MS. OSINSKI: YOUR HONOR, OUR POSITION IS, AND IT'S IN OUR
PAPERS, THAT MR. BOSCO IS COVERED BY THE SHIELD LAW. HE WOULD
TESTIFY ONLY AS TO PUBLISHED INFORMATION.
BASICALLY THAT WOULD BE THAT HE'S THE AUTHOR OF THE
ARTICLE, HE'S FAMILIAR WITH THE ARTICLE AND THAT IT'S A TRUE AND
FAIR REPRESENTATION OR ACCOUNT OF WHAT WAS SAID TO HIM.
OTHER THAN THAT, HE WAS -- HE WILL NOT TESTIFY AS TO
ANY OTHER INFORMATION THAT IS NOT PUBLISHED INFORMATION AS FOUND
IN THAT ARTICLE.
AND IT'S MY UNDERSTANDING THAT MR. SHAPIRO HAS
INDICATED THAT THEY ARE WILLING TO LIMIT THEIR QUESTIONING TO
THAT AREA. HOWEVER, I HAVE HAD NO REPRESENTATION FROM THE
PROSECUTION THAT THEY ARE ALSO WILLING TO LIMIT THEIR -- ANY
QUESTIONS THAT THEY MAY HAVE TO THAT AREA.
AND, THEREFORE, I THINK THAT -- UNLESS WE HAVE A
STIPULATION TO THAT EFFECT, I THINK WE NEED TO HAVE A DISCUSSION
OF THE ISSUES OF THE SHIELD LAW AND/OR ACTUALLY MAKE A DECISION
ON MR. BOSCO'S TESTIMONY, IF IT WILL BE RESTRICTED OR NOT BECAUSE
WE WILL BE ASSERTING THE SHIELD LAW AS TO ANY QUESTIONS OTHER
THAN THOSE ABOUT PUBLISHED INFORMATION.
THE COURT: ALL RIGHT.
WHAT'S THE PEOPLE'S POSITION?
MR. GOLDBERG: YOUR HONOR, FIRST OF ALL, COUNSEL IS SORT OF
-- SEEMS TO BE TRYING TO AMBUSH THE PEOPLE AGAIN BECAUSE THEY
KNOW THAT THIS WHOLE ISSUE OF LEAKS WAS SUBJECT TO TWO MOTIONS
THAT THE PEOPLE WROTE, ONE FOR MICHELE KESTLER AND ONE ON THE
ISSUE OF THE LEAKS THEMSELVES.
THE DEFENSE HAS WRITTEN A FORMAL POINTS AND
AUTHORITIES WHICH HAS BEEN ARGUED BY MR. UELMEN, IT'S BEEN ARGUED
BY MYSELF, AND THEY HAD PREVIOUSLY REPRESENTED THAT THIS
TESTIMONY WAS GOING TO BE PRESENTED IN A 402 TYPE HEARING AS PART
OF THE CONSIDERATIONS AND THE ISSUES THAT WERE IN FRONT OF YOUR
HONOR RIGHT NOW AS TO WHETHER OR NOT YOU WERE GOING TO ALLOW ANY
EVIDENCE OF THE SO-CALLED LEAK TO BE PRESENTED AND ALSO WHETHER
YOU WERE GOING TO ALLOW MICHELE KESTLER TO BE CROSS-EXAMINED AS
TO THAT.
SO NOW ALL OF A SUDDEN, THEY SAY THEY WANT RIGHT NOW
TO PUT THIS ON IN FRONT OF THE JURY AND THEY HAVE PREVIOUSLY NOT
MADE THAT REPRESENTATION TO THE PEOPLE. I THINK THAT ALL OF
THESE ISSUES ARE CURRENTLY --
THE COURT: ALL RIGHT. BEFORE --
MR. GOLDBERG: -- UNDER SUBMISSION TO THE COURT. ALSO, I
DON'T THINK THIS WITNESS IS ON THEIR WITNESS LIST.
EXCUSE ME?
THE COURT: ALL RIGHT.
GO AHEAD.
MR. GOLDBERG: YOUR HONOR, AS TO THE SUBSTANTIVE ISSUES --
AND I DON'T BELIEVE WE SHOULD BE ARGUING THE SUBSTANTIVE ISSUES
YET BECAUSE IT'S PREMATURE, AND THE COURT SHOULD FIRST MAKE THAT
RULING THAT THE COURT SAID IT WAS GOING TO AS TO WHETHER OR NOT
THERE IS RELEVANCY TO THIS WHOLE ISSUE OF THE SO-CALLED LEAKS AT
ALL, WHICH IS ALSO A PREDICATE TOWARDS DETERMINING WHETHER OR NOT
THE SHIELD LAW APPLIES.
BUT IF THE COURT WERE TO SOMEHOW -- AND I DON'T THINK
THE COURT SHOULD DO THIS. I HOPE YOUR HONOR WILL NOT DO THIS --
SOMEHOW PUT THOSE ISSUES ASIDE AND IN EFFECT PUT THE CART BEFORE
THE HORSE AND NOW INTRODUCE THIS TESTIMONY BEFORE HAVING RULED AS
TO RELEVANCY, WHICH YOUR HONOR TOOK UNDER SUBMISSION, I'D LIKE TO
MAKE THE FOLLOWING SUBSTANTIVE COMMENTS.
FIRST OF ALL, UNDER THE DEFENSE'S OWN THEORY, THEY
HAD STATED THAT AS TO THE ISSUE OF EVIDENCE PLANTING -- AND THEY
ARTICULATED THIS AND I PREVIOUSLY ARGUED THIS TO THE COURT --
THAT LEAK INFORMATION WOULD ONLY BE RELEVANT IF IT WAS MADE BY
SOMEONE IN THE SCIENTIFIC INVESTIGATIONS DIVISION WHO
PARTICIPATED IN ANALYZING THE SOCKS. THEY SAID THAT.
I GAVE THAT DIRECT QUOTE TO THE COURT PREVIOUSLY. I
DON'T HAVE THEIR POINTS AND AUTHORITIES DOWN WITH ME RIGHT NOW,
BUT THEY SPECIFICALLY STATED THAT IN FRAMING THE ISSUES.
OBVIOUSLY WE CONCEDE THAT IF SOME POLICE OFFICER
SOMEWHERE, IF IT INDEED WAS A POLICE OFFICER, FOUND OUT
INFORMATION, OBVIOUSLY IT WOULD BE SECONDHAND -- LET ME -- LET'S
TRY TO MAKE THIS CONCRETE.
LET'S ENVISION A POLICE OFFICER WHO HAPPENS TO WORK
IN PARKER CENTER AND OVERHEARD -- I'M MAKING UP A SCENARIO JUST
FOR ILLUSTRATION PURPOSES -- OVERHEARD DETECTIVE LANGE AND
DETECTIVE VANNATTER TALKING IN THE ELEVATOR, AND THEY SAID THAT
THERE HAD ALREADY BEEN DNA TESTING ON THE SOCKS AND THIS POLICE
OFFICER IMMEDIATELY RAN TO THE PHONE AND LEAKED THIS INFORMATION
TO MR. BOSCO OR MAYBE HE MISUNDERSTOOD THE INFORMATION THAT HE
OVERHEARD.
WHAT WOULD THE RELEVANCE OF THAT BE? WHAT WOULD THE
RELEVANCE BE THAT THIS OFFICER, OFFICER X HAD OVERHEARD THIS
INFORMATION AND HAD LEAKED IT?
IT DOESN'T GO TO THE ISSUE OF PLANTING. IT DOESN'T GO
TO ANY OF THE ISSUES THAT THE DEFENSE CLAIM TO BE RELEVANT AND IT
ISN'T RELEVANT UNDER THE THEORIES THAT THEY'VE SPECIFICALLY
ARTICULATED IN THEIR WRITTEN PAPERS IN FRONT OF THE COURT. IT
JUST DOESN'T HAVE ANYTHING TO DO WITH THIS CASE WHATSOEVER.
WE HAVE ARGUED THAT EVEN IF IT WERE AN SID
CRIMINALIST WHO WAS INVOLVED, IT WOULDN'T BE RELEVANT TO THIS
CASE BECAUSE IT DOES NOT TEND TO SHOW THAT THAT PERSON WAS
INVOLVED IN PLANTING EVIDENCE ON THE SOCKS. BUT IF IT'S JUST
SOME POLICE OFFICER, IT'S FAR MORE TENUOUS.
SO IT IS IMPOSSIBLE TO CONCEIVE OF ANY RELEVANT
THEORY OF THIS EVIDENCE.
OKAY.
NEXT. LET'S SAY MR. BOSCO GETS UP ON THE WITNESS
STAND AND MERELY AUTHENTICATES THIS ARTICLE, WHICH IS WHAT MR.
SHAPIRO IS SUGGESTING BE DONE. FIRST OF ALL, THIS ARTICLE HAS
NUMEROUS CONCLUSIONS AND OPINIONS IN IT THAT ARE NOT RELEVANT AND
NOT ADMISSIBLE.
FOR EXAMPLE, THE OPINIONS THAT THERE HAVE BEEN
NUMEROUS LEAKS BY BOTH SIDES AND THAT THE LOS ANGELES POLICE
DEPARTMENT MAKES THE OTHER SIDES APPEAR TO BE PIKERS. AND MOST
IMPORTANTLY, HE SAYS THAT THIS LEAK WAS TO JOURNALISTS, THAT HE
STARTED CALLING JOURNALISTS WITH THE STORY.
SO WE KNOW FOR CERTAIN THAT WHAT MR. BOSCO IS
REFERRING TO HERE IS, HE IS REFERRING TO CONVERSATIONS THAT
PRESUMABLY HE HAS HAD WITH OTHER JOURNALISTS. SO WE KNOW THAT AT
LEAST PART OF THE STORY IS PREDICATED UPON DOUBLE HEARSAY. IN
OTHER WORDS, WHAT JOURNALISTS REPRESENTED TO HIM, THIS POLICE
OFFICER REPRESENTED TO THEM.
WHAT WE DON'T KNOW IS WHETHER ALL OF THE STORY IS
PREDICATED UPON HEARSAY. IN OTHER WORDS, WE CAN'T BE SURE SIMPLY
UPON READING THESE PARAGRAPHS THAT WERE READ INTO THE RECORD
WHETHER SIMPLY PART OF THE STORY IS PREDICATED ON DOUBLE HEARSAY
OR WHETHER THEIR ENTIRE STORY IS PREDICATED UPON DOUBLE HEARSAY.
SO WE HAVE A HEARSAY PROBLEM THAT APPEARS TO BE
INSURMOUNTABLE.
THE NEXT PROBLEM THAT WE HAVE LEGALLY WITH THIS STORY
IS, WE HAVE AN AUTHENTICATION PROBLEM.
LET'S IMAGINE THAT THIS CONVERSATION WITH OFFICER X,
IF THERE WAS A CONVERSATION, TOOK PLACE OVER THE PHONE. WHAT THE
COURT WOULD REQUIRE IS THE COURT WILL REQUIRE, IN ORDER FOR THAT
CONVERSATION TO BE ADMISSIBLE, THE WITNESS WHO WAS TESTIFYING TO
THE CONVERSATION TO AUTHENTICATE THE CONVERSATION BY SAYING, "I
SPOKE TO OFFICER X. I RECOGNIZED HIS VOICE BECAUSE I'VE SPOKEN
TO HIM ON NUMEROUS OCCASIONS IN PERSON AND I RECOGNIZE THE VOICE
OVER THE PHONE TO BE THE SAME AS THAT WHICH I'VE HEARD IN
PREVIOUS CONVERSATIONS. FURTHER, I KNOW THIS INDIVIDUAL TO BE A
POLICE OFFICER WITH THE LOS ANGELES POLICE DEPARTMENT BECAUSE
I'VE SEEN HIS BADGE AND HIS IDENTIFICATION, BECAUSE I'VE SEEN HIM
IN UNIFORM," OR HOWEVER THE CASE MAY BE.
BUT THE POINT IS IS THAT AUTHENTICATION WOULD BE
REQUIRED, AND WE DON'T HAVE ANY AUTHENTICATION WHATSOEVER HERE
STATED IN THIS ARTICLE. WE DON'T HAVE ANYTHING THAT COMES CLOSE
TO BEING AUTHENTICATION.
AND THEN FINALLY FROM A LEGAL PERSPECTIVE, THE PEOPLE
HAVE A RIGHT TO CROSS-EXAMINE ANY WITNESS THAT GETS UP ON THE
WITNESS STAND THAT IS OFFERED BY THE DEFENSE. AND ALTHOUGH IT
HAS BEEN SAID THAT THE SHIELD LAW IS NOT A PRIVILEGE, IT CLEARLY
IS ANALOGOUS TO A PRIVILEGE AND SOME PEOPLE HAVE CHARACTERIZED IT
AS A PRIVILEGE.
THE COURT: I THINK THE CASE LAW IS PRETTY CLEAR THAT ALL
IT IS IS IMMUNITY FROM BEING HELD IN CONTEMPT. THAT'S ALL IT IS.
MR. GOLDBERG: WELL, YEAH. IT'S BEEN CHARACTERIZED AS
BEING IMMUNITY FROM BEING HELD IN CONTEMPT, AND THEN THERE'S SOME
CASE AUTHORITY TO INDICATE THAT INDEPENDENT OF THE SHIELD LAW,
THERE'S ALSO SOME SORT OF FIRST AMENDMENT CONSTITUTIONAL RIGHT TO
PROTECT CONFIDENTIAL INFORMATION AND NEWS SOURCES THAT COULD BE
CONCEIVABLY ANALOGIZED TO A PRIVILEGE.
BUT THE POINT IS, YOUR HONOR, IF A WITNESS WERE TO
GET UP ON THE WITNESS STAND AND TESTIFY, THEY HAVE WAIVED ANY
PRIVILEGES THAT THEY HAVE TO THE FULL EXTENT OF RELEVANT
CROSS-EXAMINATION.
FOR EXAMPLE, LET'S SAY A DEFENDANT GETS UP ON THE
WITNESS STAND AND TESTIFIES IN THE CASE AND THE PEOPLE WANT TO
ASK ABOUT 1101(B) TYPE EVIDENCE RELATING TO APPENDING CRIMINAL
CHARGE.
THE COURT: THIS IS NOT REAL RELEVANT, COUNSEL.
MR. GOLDBERG: WELL, NO. I'D LIKE TO EXPLAIN IT, YOUR
HONOR. OBVIOUSLY THIS IS EXTREMELY IMPORTANT TO THE PEOPLE AND
WE WOULD LIKE THE OPPORTUNITY TO BE HEARD ON ALL THE RELEVANT
LEGAL ISSUES.
THE COURT: WELL, DISCUSSING IT, AN INDIRECT ANALOGY OF
CROSS-EXAMINATION OF A DEFENDANT ON 1101(B) EVIDENCE IS AN
INTERESTING ISSUE --
MR. GOLDBERG: WELL, THE POINT --
THE COURT: -- BUT IT HAS NOTHING TO DO WITH THIS ISSUE.
MR. GOLDBERG: NO. BUT WE HAVE CALIFORNIA CASE LAW THAT
SAYS THAT WE CAN CROSS-EXAMINE EVEN IF THE DEFENDANT INVOKES
THEIR FIFTH AMENDMENT PRIVILEGE AS TO THE PENDING CHARGES BECAUSE
HE HAS WAIVED HIS PRIVILEGE TO THE FULL EXTENT OF RELEVANT
CROSS-EXAMINATION.
AND I DON'T SEE WHY THAT SAME RULE WOULDN'T BE
EQUALLY APPLICABLE IN THE CONTEXT OF THE SO-CALLED SHIELD LAW
WHETHER YOU'RE GOING TO CALL IT A PRIVILEGE OR AN IMMUNITY, THAT
ONCE THAT WITNESS HAS GOTTEN UP ON THE WITNESS STAND AND HAS
TESTIFIED TO ANYTHING VOLUNTARILY, THAT THE OTHER SIDE HAS THE
RIGHT TO CROSS-EXAMINE HIM TO THE FULL EXTENT OF RELEVANT
CROSS-EXAMINATION, AND, THEREFORE, ANY PRIVILEGE OR IMMUNITY THAT
HE WOULD OTHERWISE HAVE HAS BEEN WAIVED TO THE FULL EXTENT OF
RELEVANT PROSECUTION.
THE COURT: BUT YOUR ANALOGY FAILS BECAUSE NEITHER MR.
BOSCO NOR MISS SAVAGE ARE HERE VOLUNTARILY. BOTH HAVE FILED
MOTIONS TO QUASH SUBPOENAS.
I MEAN THAT'S A HUGE DIFFERENCE IN THAT THOUGHT
PROCESS.
MR. GOLDBERG: IT'S BEEN REPRESENTED THOUGH THAT MR. BOSCO
WOULD BE WILLING TO AUTHENTICATE THIS ARTICLE VOLUNTARILY. AND
IF HE DID THAT, OUR POSITION IS THAT WE GET TO CROSS-EXAMINE HIM
TO THE FULL EXTENT OF RELEVANT CROSS-EXAMINATION.
SO HE CAN'T GET UP ON THE WITNESS STAND AND SAYS:
"WELL, EVERYTHING I SAY IN HERE IS TRUE.
"WELL, MR. BOSCO, HOW DO YOU KNOW THAT THIS PERSON WAS A
POLICE OFFICER?
"I INVOKE THE SHIELD LAW.
"HAVE YOU EVER TALKED TO THIS PERSON IN PERSON
BEFORE?
"I INVOKE THE SHIELD LAW.
"DID YOU RECOGNIZE HIS VOICE?
"I INVOKE THE SHIELD LAW."
WE HAVE TO BE ALLOWED TO CROSS-EXAMINE. THE COURT
COULDN'T PERMIT A SITUATION TO STAND WHERE A WITNESS GOT UP ON
THE WITNESS STAND AND TESTIFIED TO CERTAIN INFORMATION AND THEN
FORECLOSE THE CROSS-EXAMINER FROM CROSS-EXAMINING THAT INDIVIDUAL
TO THE FULL EXTENT OF THE RELEVANT CROSS-EXAMINATION THAT WAS
OPENED BY HIS DIRECT TESTIMONY. AND THAT'S MY POINT YOUR HONOR.
LET ME JUST TAKE A LOOK AT THIS NOTE TO SEE IF
THERE'S SOMETHING ELSE THAT I WANTED TO BRING UP.
(BRIEF PAUSE.)
MR. GOLDBERG: I'D JUST POINT OUT ON THE HEARSAY ISSUE THAT
I PREVIOUSLY MENTIONED THAT THERE'S OBVIOUSLY NO FUNDAMENTAL
INDICIA OF RELIABILITY OR TRUSTWORTHINESS TO THIS ARTICLE ITSELF.
THE COURT: IN FACT, WOULDN'T YOU SAY QUITE THE CONTRARY
GIVEN THE RESULT?
MR. GOLDBERG: WELL, YES, CLEARLY.
AND ASIDE FROM THE RESULTS, YOUR HONOR, THERE IS THE
ISSUE OF WHETHER OTHER JOURNALISTS WOULD BE REVEALING THEIR
SOURCES TO A FELLOW JOURNALIST IN SUCH SUFFICIENT, SPECIFIC
DETAIL THAT HE COULD TELL THAT THEY WERE ALL REFERRING TO THE
SAME POLICE OFFICER. SO THERE'S A LOT ABOUT THIS THAT IS
UNRELIABLE.
SO IN SUM, YOUR HONOR, WE WOULD ASK THE COURT, AS THE
COURT HAS PREVIOUSLY RULED, TO TAKE UNDER SUBMISSION THE ISSUE OF
RELEVANCY AND TO FIRST MAKE A RULING AS TO WHETHER THAT INITIAL
THRESHOLD REQUIREMENT HAS BEEN MET. THEN AND ONLY THEN, IF THE
COURT HAS MADE THAT RULING, DO WE THEN NEED TO SORT THROUGH SOME
OF THESE OTHER VERY DIFFICULT LEGAL ISSUES RELATING TO HEARSAY,
RELATING TO AUTHENTICATION AND RELATING TO THE RIGHT OF THE
PEOPLE TO CROSS-EXAMINE THE WITNESS WHO IS AUTHENTICATING THIS
KIND OF MATERIAL.
THE COURT: ALL RIGHT.
MR. SHAPIRO.
MR. SHAPIRO: THANK YOU VERY MUCH, YOUR HONOR.
THE FIRST ISSUE IS WHETHER OR NOT MR. BOSCO CAN BE
CALLED TO TESTIFY AND WHETHER OR NOT HE CAN INVOKE THE SHIELD LAW
TO PREVENT HIS TESTIMONY.
HE HAS ALREADY INDICATED TO ME AND HIS COUNSEL HAS
INDICATED TO ME THAT AS A RESULT OF HIS PREVIOUSLY PUBLISHED
ARTICLE, TO THAT EXTENT AND TO THAT EXTENT ONLY, HE HAS NO LEGAL
RIGHT TO EXERT THE SHIELD LAW AND, THEREFORE, THAT TESTIMONY IS
NOT PROTECTED TESTIMONY. THUS, WE ARE LIMITING OUR INQUIRY
WITHIN THE SCOPE OF THE PRIVILEGE.
WE ARE NOT GOING TO CALL MR. BOSCO OR ASK HIM
ANYTHING THAT WOULD BE COVERED BY THE SHIELD LAW POTENTIALLY, AND
THAT'S ALL HIS COUNSEL HAS SUGGESTED. HIS COUNSEL HAS NOT
SUGGESTED THAT THE PEOPLE BE PREVENTED FROM CROSS-EXAMINING, NOR
WOULD I EVER SUGGEST THAT.
THEY CAN CROSS-EXAMINE ON EVIDENCE AND ON MATERIAL
THAT IS RELEVANT TO THE DIRECT EXAMINATION. BUT THEY CANNOT GO
BEYOND THAT. AND THAT'S ALL WE'RE SAYING.
THEY COULD CERTAINLY MAKE EVERY INQUIRY THEY WANT AS
TO WHETHER OR NOT MR. BOSCO WAS ASSURED THAT THE PERSON HE WAS
TALKING TO WAS A POLICE OFFICER, THAT HE KNEW HE WAS A POLICE
OFFICER. THAT'S AN ISSUE, AND THERE WILL BE NO OBJECTION.
THE QUESTION IS THE IDENTITY OF THAT PERSON, AND WE
HAVE TOLD MR. BOSCO AND HIS COUNSEL AND YOUR HONOR THAT FOR THESE
-- FOR THE PURPOSE OF THIS WITNESS, WE ARE NOT GOING TO MAKE THAT
INQUIRY.
SO THE ARGUMENTS MADE BY MR. GOLDBERG IN THAT REGARD
ARE WITHOUT MERIT.
THE SECOND ARGUMENT, THAT IT'S HEARSAY, IS AN
ARGUMENT THAT THE COURT ADDRESSED AND DISMISSED I THINK VERY
QUICKLY; AND THAT IS, THIS IS NOT BEING OFFERED FOR THE TRUTH OF
THE MATTER ASSERTED. QUITE THE CONTRARY.
IT'S BEEN OFFERED TO SHOW THAT IT WAS NOT TRUE AND IT
WAS PUT OUT AS SOME TYPE OF DISINFORMATION TO SHOW THAT THERE WAS
IN FACT A MATCH WHEN MISS CLARK TOLD YOUR HONOR IN COURT THERE
WAS NO DNA MATCH. AND THEN THE NEXT DAY, THAT WAS REPORTED BY
REPORTER SAVAGE, THAT THERE STILL WAS A MATCH AND THAT WAS STILL
COMING FROM A RELIABLE SOURCE.
AND OUR INTENTION NOW IS TO DEMONSTRATE TO THE JURY
FOR THEIR CONSIDERATION THE FOLLOWING FACTS:
THAT PRIOR TO ANY DNA ANALYSIS, A MEMBER OF THE LOS
ANGELES POLICE DEPARTMENT WHO HAD PREVIOUSLY HAD CONTACT WITH MR.
BOSCO, WHO HAD PREVIOUSLY GIVEN HIM CORROBORATIVE INFORMATION AND
INFORMATION RELIABLE ENOUGH SO THAT MR. BOSCO WOULD GO AHEAD WITH
THIS STORY WAS TOLD, ACCORDING TO MR. BOSCO, THAT THE EVIDENCE ON
THE SOCK OF BLOOD WAS A MATCH, AND THAT'S WHAT HE REPORTED.
WE KNOW THAT -- WE KNOW THAT WAS NOT TRUE BECAUSE
MISS CLARK CAME TO COURT THE VERY NEXT DAY AND ON THE RECORD TOLD
YOUR HONOR THAT WAS NOT TRUE, THERE WAS NO DNA MATCH SINCE NO DNA
TESTING HAD TAKEN PLACE YESTERDAY.
THAT NIGHT AGAIN, AFTER THE COURT MADE A VERY STERN
ADMONITION AND MADE ITS FEELINGS KNOWN, THAT THERE HAD BEEN NO
DNA ANALYSIS, THAT REPORTER SAVAGE AGAIN REPORTED THAT STORY.
THIS IS SOMETHING NOW FOR THE JURY TO DECIDE, WAS
THIS A SELF-FULFILLING PROPHECY ON BEHALF OF THE LOS ANGELES
POLICE DEPARTMENT WHO GAVE THIS INFORMATION WE KNOW TO MR. BOSCO
AND HOPEFULLY WE WILL BE ABLE TO SHOW WITH THE COURT'S
CONCURRENCE THAT THIS OFFICER ALSO GAVE THIS INFORMATION TO MISS
SAVAGE.
AND THAT IS SOMETHING FOR THE JURY TO CONSIDER. IT
IS RELEVANT EVIDENCE. IT IS HIGHLY MATERIAL EVIDENCE. IT IS NOT
COVERED BY ANY PRIVILEGE.
MR. BOSCO IS NOT GOING TO ASSERT ANY PRIVILEGE NOR
COULD HE UNDER THE LAW. IT'S NOT THAT HE'S WAIVING ANYTHING. IT
IS THAT IF MATERIAL IS ALREADY PUBLISHED, IT IS NOT COVERED BY
THE SHIELD LAW. THE SHIELD LAW PROTECTS AREAS THAT HAVE NOT BEEN
PUBLISHED. THAT IS THE VERY ESSENCE AND PURPOSE OF THAT RULE.
SO I THINK ON EVERY ISSUE, IT IS VERY CLEAR THAT THE
MATERIAL THAT WE SEEK IS RELEVANT, THAT MR. BOSCO WILL TESTIFY TO
IT, THAT WE WILL LIMIT OUR TESTIMONY SO THAT HE IN NO WAY IS
BEING ASKED TO INVADE ANY PRIVILEGE OF CONFIDENTIALITY AND THAT
THE JURY WILL THEN HAVE RELEVANT INFORMATION BEFORE IT TO MAKE A
DETERMINATION IN THIS CASE.
THANK YOU.
THE COURT: ALL RIGHT.
MISS OSINSKI, DO YOU HAVE ANY BRIEF RESPONSE?
MS. OSINSKI: YES, YOUR HONOR.
ACTUALLY, MR. SULLIVAN WAS PREPARED TO ARGUE THIS
MOTION AND WE WERE TOLD THAT WE WOULD BE ARGUING BEFORE THE COURT
AT 4:00 TODAY AND HE'S ON HIS WAY HERE. I FEEL THIS HAS BEEN
SORT OF SPRUNG ON US AT THE LAST MOMENT, AND I WANT TO REITERATE
THAT MR. BOSCO WILL INVOKE THE SHIELD LAW AS TO ANY UNPUBLISHED
INFORMATION.
AND I'D LIKE TO CLARIFY SOMETHING THAT MR. SHAPIRO
SAID. IT'S NOT AREAS OF UNPUBLISHED INFORMATION OR AREAS OF --
NOT COVERED BY PUBLISHED INFORMATION. IT'S ACTUAL UNPUBLISHED
INFORMATION.
THE ONLY THING MR. BOSCO WILL TESTIFY TO IS THE
ACCURACY OF THAT ARTICLE. HE WILL NOT GO BEYOND THAT ARTICLE AND
HE WILL NOT IDENTIFY HIS SOURCE. IT'S A CONFIDENTIAL SOURCE. I
BELIEVE THERE'S A DECLARATION BEFORE THE COURT THAT ACCOMPANIES
OUR MOTION THAT INDICATES THAT.
IT'S -- THE SHIELD LAW WILL APPLY. AND IF HE IS
ASKED ANY QUESTIONS ON CROSS-EXAMINATION OR ANY QUESTIONS BY --
ON DIRECT EXAMINATION BY THE DEFENSE ON ANY MATTER THAT IS NOT
SPECIFICALLY STATED IN THE ARTICLE, HE WILL INVOKE THE PRIVILEGE.
AND I THINK WE'RE GOING TO GET INTO A LITTLE BIT OF
AN ISSUE AS TO WHETHER, YOU KNOW, HE CAN BE FORCED TO TESTIFY ON
THOSE MATTERS, AND I THINK IT'S BETTER TO BE RESOLVED OUT OF THE
PRESENCE OF THE JURY THAN TO PUT HIM ON THE WITNESS STAND AND GET
INTO THIS IN FRONT OF THE JURY, BECAUSE I DO BELIEVE THERE'S
GOING TO BE A PROBLEM.
HE WILL -- HIS TESTIMONY WE ARGUE IS VERY LIMITED AND
VERY RESTRICTED AND WE CERTAINLY -- I AGREE WITH MR. SHAPIRO IN
THAT HE CANNOT MOVE TO QUASH THE SUBPOENA BASED ON PUBLISHED
INFORMATION, AND HE WILL TESTIFY AS TO THAT. BUT THAT'S VERY
LIMITED.
AND CERTAINLY, WHAT WE'VE BEEN ADVISED IS THAT HE
WOULD ONLY BE ASKED ABOUT QUESTIONS WITH REGARD TO PARTICULAR
PARAGRAPHS IN THAT ARTICLE. NOW THE PROSECUTION INDICATES THAT
THEY MAY BE GOING INTO OTHER AREAS OF THAT ARTICLE AND IT MIGHT
INVOLVE OPINIONS AND CONCLUSIONS. AND, YOUR HONOR, THAT'S --
THAT'S A WHOLE ANOTHER ISSUE.
AS TO -- THEY CANNOT GO INTO OR WE WILL -- THEY CAN
GO INTO IT. WE WOULD HAVE MR. BOSCO INVOKE THE SHIELD LAW AS TO
THE BASIS FOR FORMING SOME OF HIS OPINIONS OR HIS CONCLUSIONS OR
HOW -- ANYTHING THAT RELATED TO ANY CONVERSATIONS OR CONTACT THEY
MAY HAVE HAD WITH ANY PERSONS IN THE ARTICLE THAT'S NOT EXPRESSLY
STATED IN THE ARTICLE, AND IT'S --
I THINK IT'S FINE FOR MR. SHAPIRO TO SAY THAT HE'S
GOING TO LIMIT HIS QUESTIONING OR TO PUBLISHED INFORMATION.
HOWEVER, THAT DOES NOT TAKE INTO ACCOUNT WHAT THE PROSECUTION MAY
DO OR IF MR. SHAPIRO FEELS THAT BASED ON A CERTAIN ANSWER, HE
MIGHT WANT TO GO FURTHER, DELVE FURTHER INTO THE ARTICLE AND INTO
MATTERS THAT ARE NOT PUBLISHED.
THE COURT: ALL RIGHT.
MR. OSINSKI: AND, YOUR HONOR, IF I MAY BRIEFLY ASK THAT WE
BE ALLOWED TO PRESENT A FULL ARGUMENT ON THIS ISSUE AT 4:00
O'CLOCK WHEN ORIGINALLY SCHEDULED.
THE COURT: YOU DON'T THINK THAT WAS SUFFICIENT?
MS. OSINSKI: WELL --
THE COURT: ARE THERE ANY ISSUES OR DEFENSES OTHER THAN THE
SHIELD LAW THAT YOU CAN RAISE TO NON-PUBLISHED INFORMATION?
MR. OSINSKI: WELL, THERE IS THE FIRST AMENDMENT, YOUR
HONOR, BUT I'M NOT PREPARED TO DISCUSS IT AT THE MOMENT BECAUSE,
AS I SAY, MR. SULLIVAN WAS PREPARING THE ARGUMENT IN THIS MATTER
AND I WAS NOT.
THE COURT: ALL RIGHT.
WELL, I WISH YOU HAD TOLD ME THAT YOU WANTED TO
RESERVE THAT RIGHT RATHER THAN TALKING TO ME FOR THE LAST 10
MINUTES OR TELLING ME YOU WANT TO ARGUE AGAIN.
MR. OSINSKI: WELL, I WAS SIMPLY ADVISED THAT MR. SHAPIRO
WAS DISCUSSING MR. BOSCO'S TESTIMONY.
THE COURT: NO. YOU SHOULD HAVE STARTED YOUR COMMENTS BY
ASKING TO CONTINUE THE MATTER FOR HEARING UNTIL 4:00 O'CLOCK.
THAT'S HOW WE SHOULD HAVE STARTED THE CONVERSATION.
MS. OSINSKI: WELL, I APOLOGIZE TO YOUR HONOR FOR THAT. I
FIND MYSELF IN THE MIDDLE OF SOMETHING AND I DO APOLOGIZE, BUT I
BELIEVE THAT MR. SULLIVAN CAN BETTER PRESENT THE ISSUES. HE HAS
BEEN PREPARING TO DO THAT.
THE COURT: ALL RIGHT.
WELL, DON'T MISUNDERSTAND ME, MISS OSINSKI. YOU AND
MR. SULLIVAN HAVE APPEARED IN COURT WITH VERY SHORT NOTICE, AND I
UNDERSTAND YOUR NEED FOR TIME TO PREPARE. BUT SINCE NOW I'M
GOING TO HAVE TO HEAR THESE ARGUMENTS TWICE FROM MR. BOSCO'S
COUNSEL.
ALL RIGHT.
I AGREE THAT MR. SULLIVAN, IF HE IS THE PERSON WHO IS
PREPARED FOR THE ARGUMENT, I'LL HEAR HIS ARGUMENT AT 4:00 O'CLOCK
SINCE THAT WAS THE TIME ORIGINALLY SCHEDULED.
LET ME TELL YOU WHAT MY TENTATIVE RULING IS AT THIS
POINT.
I'M GOING TO ALLOW MR. BOSCO TO BE CALLED FOR THE
PURPOSE OF A 402 HEARING, A FOUNDATIONAL HEARING, TO DETERMINE,
ONE, WHETHER OR NOT HE IS SOMEBODY WHO IS COVERED BY THE SHIELD
LAW. THAT HAS TO BE ESTABLISHED FOR THE RECORD.
THEN THE DISCUSSION AS TO WHAT IT IS THE DEFENSE
WISHES TO GLEAN FROM HIM FROM THAT ARTICLE THAT HE'S WILLING TO
DISCUSS AND THEN WHETHER OR NOT EITHER ON DIRECT OR
CROSS-EXAMINATION BY THE PROSECUTION -- IF THE QUESTION IS ASKED
WHO THIS INDIVIDUAL WAS WHO PROVIDED HIM WITH THE INFORMATION, IF
HE INVOKES THE SHIELD LAW, THEN I KNOW THAT OUTSIDE THE PRESENCE
OF THE JURY, AND THEN I WILL TAKE THIS MATTER UNDER SUBMISSION
LIKEWISE WITH THE TRACIE SAVAGE SITUATION BECAUSE WE'LL BE IN
THE SAME BOAT AS FAR AS THAT IS CONCERNED.
ALL RIGHT.
LET'S TAKE A 15-MINUTE RECESS, AND THEN WE'LL DISCUSS
THE GERDES ISSUE. MIGHT AS WELL USE THE TIME.
ALSO, IN THE INTERIM, I'M GOING TO EXCUSE THE JURY
>FROM FURTHER SERVICE UNTIL 9:00 O'CLOCK TOMORROW MORNING.
ALL RIGHT.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
BACK ON THE RECORD IN THE SIMPSON MATTER.
THE RECORD SHOULD REFLECT THE JURY HAS WITHDRAWN FOR
THE AFTERNOON, THAT WE WILL TAKE UP THE CONTINUING SHIELD LAW
MATTERS WHEN COUNSEL ARRIVES AT 4:00 O'CLOCK, MR. SULLIVAN ON
BEHALF OF MR. BOSCO.
SO WE'LL USE THIS TIME TO TAKE UP THE GERDES MATTER.
I HAVE A MOTION BY THE PROSECUTION TO PREVENT OR
RESTRICT THE TESTIMONY OF MR. GERDES. AND LET ME FIND THAT
MOTION FROM THE PUFFER THAT I HAVE HERE.
(BRIEF PAUSE.)
MR. SCHECK: DO YOU HAVE OUR RESPONSE?
THE COURT: YES.
ALL RIGHT. LET'S PROCEED.
ALL RIGHT.
MR. CLARKE.
MR. CLARKE: YES.
THANK YOU, YOUR HONOR.
THE COURT: GOOD AFTERNOON, SIR.
MR. CLARKE: GOOD AFTERNOON, YOUR HONOR.
THIS PARTICULAR MOTION IS BEFORE THE COURT AS A
RESULT OF MATERIALS THAT HAVE BEEN PROVIDED TO THE PEOPLE BY THE
DEFENSE WITH REGARD TO DR. GERDES SPECIFICALLY. WHAT THOSE
MATERIALS REVEAL -- AND I HAVE ATTACHED TO OUR EVIDENCE CODE
SECTION 352 MOTION COPIES OF THE MATERIALS THAT HAVE BEEN
PROVIDED TO THE PEOPLE THAT I'LL ADDRESS BRIEFLY IN JUST A FEW
MOMENTS.
WHAT THIS PROPOSED TESTIMONY BY DR. GERDES
SPECIFICALLY RELATES TO AND THAT WHICH WE ARE ASKING THIS COURT
TO PRECLUDE IN PARTICULAR IS AN EXAMINATION BY DR. GERDES OF PCR,
DQ-ALPHA TYPING CONDUCTED IN THE LABORATORY AT THE LOS ANGELES
POLICE DEPARTMENT. AND THAT REVIEW I THINK IT IS CLEAR WAS
SPECIFICALLY UNDERTAKEN BY DR. GERDES AS PART OF A SEARCH FOR
CONTAMINATION, A SEARCH FOR CONTAMINATION, THE DNA LABORATORY AT
THE LOS ANGELES POLICE DEPARTMENT, AND I THINK IT'S CLEAR THAT
THAT WAS HIS GOAL IN UNDERTAKING THIS REVIEW.
IT IS CLEAR FROM THE MATERIALS THAT WE HAVE BEEN
PROVIDED THAT DR. GERDES HAS LOOKED AT OVER 200 DQ-ALPHA -- I'M
SORRY -- DQ-ALPHA HYBRIDIZATION RECORDS AND THAT THOSE RECORDS
SPECIFICALLY COVER A TIME PERIOD BETWEEN MAY OF 1993 THROUGH
AUGUST OF 1994 OR A PERIOD OF SOME 15 OR 16 MONTHS.
IN ANY EVENT, BY DR. GERDES' OWN MATERIALS, THAT
REVIEW INCLUDES OVER 1,000 SEPARATE TYPING STRIPS. IN OTHER
WORDS, ONE SAMPLE BEING SUBJECTED TO DQ-ALPHA TYPING CONSTITUTING
A SINGLE STRIP AND THIS REVIEW BY DR. GERDES INCLUDES MORE THAN
1,000 STRIPS.
AND IT IS CLEAR THE GOAL OF THAT REVIEW WHICH DR.
GERDES STATES IN SUMMARY FORM IN THE MATERIALS PROVIDED TO THE
MATERIAL SUPPORTS WHAT DR. GERDES REFERS TO AS A CHRONIC AND
SUBSTANTIAL CONTAMINATION PROBLEM OF THEIR DQ-ALPHA STRIPS BY THE
LOS ANGELES POLICE DEPARTMENT.
NOW, BRIEFLY, I'D LIKE TO REVIEW THE MATERIALS THAT
IN FACT THE PEOPLE HAVE BEEN PROVIDED AND WHICH ARE ATTACHED AS
EXHIBITS 1 THROUGH 4 TO OUR PARTICULAR MOTION.
WHAT WE WERE PROVIDED ON JUNE 16TH OF THIS YEAR WERE
TWO ITEMS; ONE, WHAT IS ENTITLED AN ANALYSIS OF LAPD VALIDATION
DATA, OBSERVED CONTAMINATION AND ITS RELEVANCE TO THE SIMPSON
CASE, WHICH WAS A SEVERAL-PAGE REPORT TYPE DOCUMENT, AND THEN IN
ADDITION TO THAT, WE WERE PROVIDED A SEVERAL PAGE WHAT I WILL
REFER TO AS CHART WHICH WAS ENTITLED, "LAPD DQ-ALPHA
CONTAMINATION INCIDENTS."
IN THOSE TWO ITEMS, DR. GERDES' DESCRIBES REVIEWING
1,000 -- I'M SORRY -- 1,069 EVIDENCE STRIPS. THE MAJORITY OF
THOSE STRIPS IS CLEAR FROM A REVIEW OF THAT --
THE COURT: COUNSEL, WHEN YOU SAY 1,000 EVIDENCE STRIPS,
WE'RE TALKING ABOUT CASEWORK STRIPS?
MR. CLARKE: HE USES THE TERM APPARENTLY A LITTLE BIT
VAGUELY. HE USES THE TERM "EVIDENCE STRIPS," BUT IT IS CLEAR
THAT THE MAJORITY OF THOSE ARE NOT CASEWORK.
SO I THINK -- AND I'VE JUST REITERATED OR ACTUALLY
REPEATED THE TERM DR. GERDES HAS USED. BUT I'LL GET INTO THAT IN
A MOMENT IN REALITY WHAT THOSE ITEMS CONTAIN.
I THINK IT'S SAFE TO SAY THAT WHEN HE SAYS HE HAS
REVIEWED THIS THOUSAND PLUS STRIPS, THAT INCLUDES STRIPS THAT ARE
NOT ONLY CASEWORK EVIDENCE AS WE'LL USE THE TERM, BUT ALSO
INCLUDE KNOWN SAMPLES, PROFICIENCY TESTS AS WELL AS IN-LABORATORY
VALIDATION.
SO I DON'T THINK HIS USAGE OF THE TERM IN THIS
INSTANCE "EVIDENCE STRIPS" MEANS CASEWORK, LET ALONE CASEWORK
SPECIFIC TO THE PRESENT CASE. AND AS I MENTIONED, THE MAJORITY
OF THOSE STRIPS THAT HE REVIEWED ARE NOT CASEWORK. THEY ARE IN
FACT TRAINING STRIPS UNDERTAKEN BY LABORATORY ANALYSTS
FAMILIARIZING THEMSELVES WITH THIS TECHNOLOGY. THEY INCLUDE
IN-LABORATORY VALIDATION TYPING STRIPS AND THEY INCLUDE
PROFICIENCY STRIPS AS WELL.
THE ACTUAL EVIDENCE CASEWORK, NOT SPECIFIC TO THIS
CASE, BUT OTHER CASES CONSTITUTES A LIMITED NUMBER OF THOSE 1,000
PLUS STRIPS.
THE COURT: WHEN YOU SAY A LIMITED NUMBER, WHAT ARE WE
TALKING ABOUT?
MR. CLARKE: I HAVE NOT ACTUALLY CALCULATED THE EXACT
NUMBER THAT ARE EVIDENCE STRIPS, THAT IS ACTUALLY CASEWORK
SAMPLES FROM OTHER CASES. IF I HAD TO ESTIMATE, I WOULD SAY IT'S
ON THE ORDER OF 10 PERCENT. PERHAPS IT'S MORE. I DON'T THINK
IT'S LESS. THAT'S A VERY ROUGH ESTIMATE, YOUR HONOR.
HIS CONCLUSION FROM THOSE INITIAL DOCUMENTS PROVIDED
TO THE PEOPLE IN JUNE ARE THAT CONTAMINATION OF MAJOR PROPORTIONS
IS A PART OF THE LOS ANGELES POLICE DEPARTMENT DNA LABORATORY.
NOW, 10 DAYS AGO, ACTUALLY 11 DAYS AGO AT THIS POINT,
THE PEOPLE WERE PROVIDED WITH A NEW CHART BY DR. GERDES IN WHICH
DR. GERDES CHANGED THE NAME OF CONTAMINATION ON THE CHART TO,
QUOTE, "UNEXPECTED ALLELES."
AND IN THAT MATERIAL THAT WE WERE PROVIDED, IT WAS
ACCOMPANIED BY A LETTER TO MR. SCHECK BY DR. GERDES STATING,
QUOTE, "NOT ALL ENTRIES CAN BE STRICTLY CONFIRMED TO BE
CONTAMINATION," UNQUOTE. AND, THEREFORE, HE RENAMED THE CHART.
AND IN FACT, IN THAT MATERIAL PROVIDED TO THE PEOPLE
BY WAY OF THE SAME LETTER TO MR. SCHECK, DR. GERDES CONCEDES THAT
HE MADE ERRORS IN HIS EARLIER CHART AND MADE CHANGES ACCORDINGLY.
NOW, GETTING BACK TO THE REVIEW THAT OCCURRED BY DR.
GERDES OF THIS 1,000 PLUS SAMPLES, DR. GERDES STATES
CROSS-CONTAMINATION CAN PRODUCE TYPING ERRORS. THAT'S ONE OF THE
STATEMENTS THAT HE UTILIZES AS A RESULT OF HIS REVIEW CONTAINED
IN HIS ANALYSIS AS WELL AS HIS CHART FORM SUMMARY. AND IN FACT,
DR. GERDES ALLEGES THAT FIVE MISTYPING ERRORS WERE COMMITTED BY
THE LOS ANGELES POLICE DEPARTMENT.
I THINK IT'S IMPORTANT AT THIS POINT, AND I'D LIKE TO
DISCUSS TWO OF THEM BECAUSE THEY ARE CLOSELY RELATED TO ONE
ANOTHER AND I THINK THE COURT HAS TO REALIZE THE TYPE OF
TESTIMONY THAT THIS WITNESS APPARENTLY WILL PRESENT IN THIS CASE
AND WE KNOW FROM PREVIOUS TESTIMONY IS PRESENTED IN OTHER CASES.
THIS FIRST QUOTE, MISTYPING ERROR, BY DR. GERDES
INVOLVED A KNOWN BLOOD SAMPLE, A SAMPLE RUN BY AN ANALYST NOT
RELATED TO THIS CASE NAMED ERIN REILLY, AND IN THE COURSE OF
TYPING THAT KNOWN BLOOD SAMPLE -- AGAIN, THIS PARTICULAR TYPING
STRIP HAD NO RELATION TO THIS CASE WHATSOEVER. THAT IN TYPING
THAT KNOWN BLOOD SAMPLE, TWO ALLELES WERE NOTED BY ERIN REILLY
AND A TYPE WAS WRITTEN IN HER NOTES FROM THE APPEARANCE OF THOSE
TWO ALLELES, WHICH WERE A 1.3 AND A 4. THE ACTUAL TYPE OF THAT
SAMPLE WAS A 1.2, 4 NOT A 1.3, 4.
THE COURT WILL I'M SURE RECALL THAT THERE'S NO
DQ-ALPHA PROBE SPECIFIC TO THE 1.2 ALLELE, AND THERE'S SOME
INTERPRETATION THAT GOES INTO AN ANALYST CONCLUDING THE PRESENCE
OF THE 1.2 ALLELE.
THE NEGATIVE CONTROL ON THAT RUN FAILED. IT
DEMONSTRATED ACTIVITY SIGNALLING TO ERIN REILLY THAT THOSE
RESULTS COULD NOT BE CALLED. AND AS A RESULT OF THAT, ERIN
REILLY RERAN THAT SAMPLE AS WELL AS THE OTHER SAMPLES THAT WERE
INVOLVED IN THE SAME SET OF TYPING STRIPS. THAT WAS COUNTED BY
DR. GERDES AS A MISTYPING OR AN ERROR.
ERIN REILLY RERAN THAT SAMPLE A MATTER OF A FEW DAYS
LATER, DETECTED THE SAME TWO ALLELES THAT SHE HAD DETECTED
BEFORE, WHICH WERE A 1.3 ALLELE AND A 4 ALLELE. AGAIN, THE
SAMPLE WAS IN REALITY A 1.2, 4. THE NEGATIVE CONTROL AGAIN
SHOWED ACTIVITY SIGNALLING TO ERIN REILLY THAT THOSE RESULTS
COULD NOT BE CALLED. THAT CONSTITUTED ACCORDING TO DR. --
THE COURT: ALL RIGHT.
LET ME SEE IF I'M UNDERSTANDING WHERE YOU'RE GOING,
MR. CLARKE.
YOU INDICATED ON THE FIRST SAMPLE DONE BY ERIN REILLY
THAT THE NEGATIVE CONTROL FAILED. DOES THAT MEAN THAT IT SHOWED
ACTIVITY OR THAT THE CONTROL MECHANISM DIDN'T WORK?
MR. CLARKE: THAT WAS A POOR USAGE OF TERMS ON MY PART.
THE CONTROL REVEALED THE ACTIVITY. SO THE CONTROL SERVED ITS
PURPOSE.
THE COURT: GOT IT.
MR. CLARKE: THANK YOU, YOUR HONOR.
THE COURT: GOT IT. DIDN'T FAIL.
MR. CLARKE: CORRECT. ABSOLUTELY CORRECT.
THE COURT: OKAY.
THAT'S A BIG DIFFERENCE.
MR. CLARKE: YES.
THE COURT: OKAY.
MR. CLARKE: IN THE RERUN, THE SAME THING OCCURRED WITH THE
CONTROL. AND, THEREFORE, THE RESULTS WERE NOT CALLED. THAT
CONSTITUTED ACCORDING TO DR. GERDES IN HIS REPORT A SECOND
MISTYPING BY THE LOS ANGELES POLICE DEPARTMENT.
NOW, THE POSTSCRIPT TO THIS IS, ABOUT TWO DAYS LATER,
THAT SAMPLE AGAIN WAS RERUN BECAUSE OF THE PROBLEMS WITH THE
PREVIOUS TYPINGS. NO ACTIVITY SHOWED IN ANY OF THE NEGATIVE
CONTROLS, AND THE SAMPLE WAS APPROPRIATELY CALLED AND CORRECTLY
CALLED FROM THE TYPING AS A 1.2, 4. THAT RERUNNING, THAT IS THAT
THIRD TYPING OF THE SAME SAMPLE IS NOT EVEN MENTIONED IN DR.
GERDES' MATERIAL, AND YET THOSE ARE TWO MISTYPING ERRORS
ACCORDING TO HIS TESTIMONY.
THAT IS OBVIOUSLY WRONG AND MISLEADING TO REFER TO
THOSE AS TYPING ERRORS IN VIEW OF THE FACT THAT THEY WERE NEVER
CULLED, THEY WERE NEVER REPORTED AS RESULTS BECAUSE THE CONTROLS
SERVED THE EXACT FUNCTION THEY WERE DESIGNED TO.
THE OTHER THREE ERRORS I'M NOT GOING TO GET INTO AT
THIS POINT OTHER THAN TO SAY THAT TWO OF THEM INVOLVE THE SAME
SEXUAL ASSAULT EPITHELIAL CELL SPERM FRACTION SITUATION THAT THIS
COURT HEARD SOME TESTIMONY ABOUT EARLIER, WHEREIN IN TYPICAL
SEXUAL ASSAULTS, THERE ARE MIXTURES. AND, AGAIN, I WON'T GET
INTO THAT OTHER THAN TO STATE THAT WHAT DR. GERDES REFERS TO AS A
MISTYPING OR AN ERROR WAS CALLED ABSOLUTELY CORRECT CORRECTLY
>FROM NOT ONLY THE APPEARANCE OF THE ALLELES IN THOSE INDIVIDUAL
TYPING STRIPS, BUT THE VERY NATURE OF SEXUAL ASSAULT MIXED
SAMPLES TO BEGIN WITH.
AND THEN THE LAST ONE REFERS TO A HAIR SHAFT, NOT A
HAIR ROOT.
NOW, GETTING BACK INTO WHAT TAKES UP MORE, IN FACT
FAR MORE OF DR. GERDES' REVIEW INVOLVES THE APPEARANCE OF 1.1 AND
1.3 REACTIONS THAT ARE WEAKER REACTIONS IN SAMPLES THAT IN FACT
SHOW THE 1 ALLELE.
NOW, THE COURT HAS HEARD TESTIMONY ABOUT
CROSS-HYBRIDIZATION. AND BECAUSE THE SEQUENCES OF THE VARIOUS 1
SUBTYPES ARE VERY CLOSE TO ONE ANOTHER, THAT IN FACT THERE CAN BE
WEAKER APPEARANCES OR WEAKER REACTIONS FROM THE 1.1 ALLELE AND
>FROM THE 1.3 ALLELE AS A RESULT OF THIS CROSS-HYBRIDIZATION.
IN HIS CHART, DR. GERDES, FIRST OF ALL, HAS REFERRED
TO THE FACT THAT THESE APPEARANCES MAY BE -- AND I'M REFERRING TO
THE 1.1 ALLELE AT THE MOMENT -- ARE RESULT OF WHAT'S CALLED DX
ACTIVITY. AND THERE'S BEEN TESTIMONY ABOUT DX, A CLOSELY RELATED
GENE TO DQ-ALPHA. AND BECAUSE OF SIMILARITY IN SEQUENCE, THE 1.1
ALLELE MAY APPEAR.
AND IN FACT, THE APPEARANCE OF THAT ALLELE IS
RECOGNIZED NOT ONLY IN THE USER GUIDE, THAT IS THE DQ-ALPHA USER
GUIDE PUT OUT BY ROCHE, IT'S RECOGNIZED IN THE SCIENTIFIC
LITERATURE AND IN FACT HAS ALREADY BEEN THE SUBJECT OF TESTIMONY
IN THIS CASE.
THAT CONSTITUTES APPROXIMATELY 40 OF THE 100 --
APPROXIMATELY 180 REFERENCES IN DR. GERDES' CHARTS. THESE 180
REFERENCES THAT DR. GERDES MAKES TO ORIGINALLY CONTAMINATION, BUT
NOW WHAT HE REFERS TO IS UNEXPECTED ALLELES. BUT I THINK THAT'S
SIMPLY A EUPHEMISM FOR WHAT THE DEFENSE SEEKS TO PRESENT TO THIS
JURY, WHICH IS CONTAMINATION, NOT UNEXPECTED ALLELES.
THE SAME APPLIES TO THE 1.3 ALLELE. APPROXIMATELY 50
OF DR. GERDES' 180 REFERENCES INCLUDE REACTIONS IN THE 1.3 ALLELE
THAT ARE WEAKER THAN REACTIONS THAT ARE OBTAINED FROM THE OTHER
ALLELES PRESENT IN THE SAMPLE ITSELF.
AND AGAIN, TESTIMONY IN THIS CASE HAS ALREADY
DESCRIBED THIS CROSS-HYBRIDIZATION. THE USER GUIDE SPECIFICALLY
ADDRESSES IT. TRAINED ANALYSTS JUST LIKE THE 1.1
CROSS-HYBRIDIZATION SITUATION ARE FULLY AWARE OF IT, AND LASTLY,
THE SCIENTIFIC LITERATURE DEMONSTRATES THE SAME THING.
IN THIS CASE, FROM DR. GERDES' CHART ITSELF, THERE'S
NO INSTANCE OF ALLEGED CONTAMINATION BY DR. GERDES FOR THE
PERIODS BETWEEN JUNE 10TH, 1994 AND JUNE 27TH, 1994. THAT IS A
CRITICAL GAP IN TERMS OF HIS CHART AND WHAT HE HAS DESCRIBED AS
THESE INSTANCES OF CONTAMINATION. THAT TIME PERIOD INCLUDES THE
SPECIFIC DQ-ALPHA RUNS IN THIS CASE, WHICH WERE ON JUNE 14TH AND
JUNE 15TH, 1994.
THIS OFFER TO THE COURT TO PROVE DR. GERDES' SEARCH,
TO PROVE HIS SEARCH FOR CONTAMINATION IS FRANKLY NO DIFFERENT
THAN THAT WHICH OCCURS IN DRIVING UNDER THE INFLUENCE CASES WHEN
A DEFENDANT SEEKS RECORDS ABOUT THE BREATHALIZER OR THE
INTOXILIZER OR THE GAS CHROMATOGRAPH; HOW IS THE MACHINE OPERATED
DURING THE RELEVANT TIME PERIOD? AND IN FACT, THEY'RE FREQUENTLY
PROVIDED RECORDS.
AND IN THIS CASE, IT'S THE SAME AS THE RECORDS
DEMONSTRATING THE MACHINE WAS OPERATING PERFECTLY. HOW RELEVANT
IS IT THAT THE MACHINE WASN'T OPERATING PERFECTLY A MONTH
EARLIER, SIX MONTHS EARLIER OR A YEAR EARLIER? AND I DON'T THINK
FRANKLY THERE'S ANY DIFFERENCE IN THIS PARTICULAR CASE.
THE COURT: HAVING BEEN THE SUPERVISING JUDGE OF THE
TRAFFIC BUILDING EARLIER IN MY CAREER AND HAVING TRIED 37 DRIVING
UNDER THE INFLUENCE TRIALS IN A ROW, I'VE HEARD THAT ARGUMENT.
MR. CLARKE: THAT'S A LOT OF DRIVING UNDER THE INFLUENCE
CASES IN A ROW.
THE COURT: IT IS.
MR. CLARKE: I'VE CITED TO THE COURT THE QUESTION OF
EYEWITNESS IDENTIFICATION TESTIMONY AND CITED TO THIS COURT
PEOPLE VERSUS MC DONALD AS WELL AS UNITED STATES VERSUS DOWNING.
AND I THINK THE RELEVANT PORTION OF THAT AND WHY I
THINK THAT'S APPLICABLE IS BECAUSE THOSE CASES MAKE CLEAR THAT
THERE HAS TO BE SOME RELEVANCE OF THAT MATERIAL. THAT IS, THE
OFFERED EYEWITNESS IDENTIFICATION EXPERT TYPE TESTIMONY TO THE
FACTS OF AN INDIVIDUAL CASE OR WHAT'S REFERRED TO AS FIT, DUE TO
THE FACTS OF AN INDIVIDUAL CASE, FIT, WHAT'S DESCRIBED TO BE
OFFERED BY THE DEFENSE.
AND THE QUESTION IN THIS CASE IS, WHAT IS THE
ACCURACY AND RELIABILITY OF THE RESULTS IN THIS PARTICULAR CASE.
THAT'S WHAT THIS JURY HAS TO DECIDE, WHAT THIS DEFENDANT IS
TRYING TO SHOW. IN OTHER WORDS, WHAT THEY'RE ATTEMPTING TO USE
AS A VEHICLE TO SHOW THE UNRELIABILITY AND INACCURACY OF THESE
RESULTS IS BASICALLY, THERE'S SOMETHING FISHY. THERE'S NO CUSTOM
OR PRACTICE THAT THE DEFENSE CAN DEFINE OR IDENTIFY IN THIS
PARTICULAR CASE THAT'S CAUSING SOMETHING TO GO WRONG. THERE IS
THIS AMORPHUS FISHY ATMOSPHERE IN WHICH, QUOTE, CONTAMINATION OF
EPIC PROPORTIONS CALLS INTO QUESTION THE ACCURACY OF THE RESULTS
IN THIS PARTICULAR CASE.
WHAT THE DEFENSE IS ATTEMPTING TO PARLAY IS THIS
REVIEW BY DR. GERDES AND PROPOSED TESTIMONY INTO JUROR
SPECULATION ABOUT THE ACCURACY OF THE RESULTS IN THIS CASE BASED
ON, AGAIN, THIS NEBULOUS CLOUD OR WHAT'S REFERRED TO BY THE
DEFENSE AS ALLEGED CONTAMINATION.
EVEN AS THE DEFENSE RESPONDS TO THE MOTION BROUGHT BY
THE PEOPLE IN THIS CASE, THEY STATE THESE THINGS, CONTAMINATION
THAT IS, COULD HAVE PRODUCED FALSELY INCRIMINATING RESULTS. AND
IN FACT, THEY EVEN TRY TO DIVORCE BOTH CELLMARK AND THE
DEPARTMENT OF JUSTICE BY LAYING THE BLAME AT THE FOOTSTEPS OF THE
LOS ANGELES POLICE DEPARTMENT.
WELL, THE ANSWER IS, THAT IS NOT A PROPER VEHICLE TO
ATTACK THIS PARTICULAR EVIDENCE. THE PROPER VEHICLE IS TO
EXAMINE THE EVIDENCE RESULTS IN THIS CASE, THE CONTROL SAMPLES IN
THIS CASE AND IS THERE SOMETHING WRONG WITH WHAT OCCURRED IN THAT
TESTING. AND IN FACT, THAT'S THE TRADITIONAL MEANS BY WHICH IT'S
DONE IN ANY OTHER CASE THAT I'M PERSONALLY FAMILIAR WITH.
WELL, THE PROBLEM IN THIS CASE IS, THE EVIDENCE
SAMPLES, THE ACTUAL EVIDENCE TESTING IN THE CONTROLS WORKED. AND
IN FACT, THEY WORKED APPROPRIATELY IN EVERY INSTANCE.
THE LAST LEGAL MEANS TO ATTACK THE ACCURACY OF
RESULTS IN AN INDIVIDUAL CASE OBVIOUSLY IS BY RETESTING.
SECTION 352 I WOULD SUGGEST TO THE COURT IS
SPECIFICALLY DESIGNED TO AVOID THIS TYPE OF OFFER. AND THE
DEFENSE HAS IN TERMS OF THEIR RESPONSE SPECIFICALLY DIRECTED
THEIR COMMENTS TOWARDS THE ALLEGATION THAT THIS WOULD TAKE UNDUE
TIME.
WELL, TIME CONSUMPTION IS A FACTOR. BUT I'M GOING TO
SUGGEST TO THE COURT THE OTHER TWO FACTORS IN 352 ARE FAR MORE
IMPORTANT IN THIS INSTANCE.
AND THAT IS, MISLEADING THE JURY IN DETERMINING THE
FACTS OF THIS CASE AND CONFUSING THE JURY IN THEIR DETERMINATION
OF THE FACTS IN THIS CASE, AND IN PARTICULAR, WITH REGARD TO THE
ACCURACY OF THE RESULTS OBTAINED IN THIS PARTICULAR CASE.
CONTAMINATION IN THE LOS ANGELES POLICE DEPARTMENT IS
CLEARLY REVEALED IN TYPING STRIPS WHEREIN EXTRANEOUS OR
ADDITIONAL ALLELES ARE PRESENT. IT'S OBVIOUS TO AN ANALYST.
IT'S OBVIOUS TO A LAYPERSON.
AND IN THE COURSE OF DR. GERDES' TESTIMONY, EVEN
WITHOUT THESE ALLEGED INSTANCES OF CONTAMINATION, THAT MIGHT
BECOME RELEVANT, IN WHICH CASE THE JURY COULD SEE AN EXAMPLE,
WHAT'S CONTAMINATION LOOK LIKE.
WELL, IT'S LIKE A RED LIGHT AND A SIREN GOING OFF,
IT'S SO ABUNDANTLY CLEAR. AND WHEN IT GOES OFF, AS HAS HAPPENED
AT THE LOS ANGELES POLICE DEPARTMENT IN TWO INSTANCES, THE
LABORATORY ACTED ACCORDING TO ACCEPTED PROTOCOL, ACTED ACCORDING
TO APPROPRIATE SCIENCE, AND IN FACT WENT ON WITH ITS TESTING
UNDER APPROPRIATE CIRCUMSTANCES, WHICH WAS TO CONDUCT THE TESTING
ACCORDING TO SCIENTIFIC PROTOCOL AS WELL AS THE PROTOCOL IN PLACE
WITHIN THE LABORATORY ITSELF.
THE ANSWER IS, CONTAMINATION IS NOT PRESENT IN THIS
CASE.
I ANTICIPATE DR. GERDES WILL CONCEDE THAT THE NUMBER
OF CONTROLS IN THIS CASE OUTWEIGHS ANY CASE HE HAS PREVIOUSLY
SEEN IN THE NUMBER OF CASES THAT HE HAS REVIEWED AS A DEFENSE
CONSULTANT AND/OR EXPERT. THIS COURT ALREADY KNOWS THE USE OF
REAGENT CONTROLS, AMPLIFICATION CONTROLS, POSITIVE CONTROLS AS
WELL AS, REMARKABLY ENOUGH, UNSTAINED SUBSTRATE CONTROLS WITH
REGARD TO ALMOST ALL EVIDENCE SAMPLES IN THIS CASE.
IF THIS DEFENDANT IS ALLOWED TO PUT ON EVIDENCE,
WHETHER IT'S BY SIMPLE CHARTS, SUMMARIES AND TABULATIONS OF THESE
ALLEGED INSTANCES OF CONTAMINATION, THEN WHAT WILL HAPPEN IS, THE
JURY WILL BE MISLED. THEY WILL BE CONFUSED BECAUSE THEN THEY'LL
HAVE TO HEAR TESTIMONY ABOUT A NUMBER OF DIFFERENT AREAS.
THEY'LL HAVE TO HEAR TESTIMONY ABOUT DR. GERDES' OWN ERRORS IN
INTERPRETING THE PRESENCE OF DOTS AND WHAT PARTICULAR TYPES ARE
PRESENT AS A RESULT OF ANALYZING AND INTERPRETING THE PRESENCE OF
VARIOUS ALLELES.
THE COURT: TELL ME ABOUT THAT.
MR. CLARKE: IT'S OUR POSITION THAT FROM READING PARTICULAR
PROBE REACTIONS, THAT DR. GERDES MISCALLS MORE THAN ONE SAMPLE.
IN OTHER WORDS, HE ALLEGES A PARTICULAR TYPE IS PRESENT WHEN IT
IS NOT BY PROPER INTERPRETATION.
NOW, I'M NOT REFERRING TO WHETHER OR NOT THERE'S A
WEAK REACTION; IN OTHER WORDS, WHETHER YOU CAN SEE A REACTION.
BUT FROM OBVIOUS PROBE REACTIONS, WHETHER OR NOT HE CAN CALL THE
TYPE CORRECTLY. IN OTHER WORDS, THE INTERPRETATIONAL ASPECT, NOT
WHETHER OR NOT A SIGNAL IS SUFFICIENTLY STRONG TO BE
INTERPRETABLE, IF I'M MADE THAT DISTINCTION CLEAR.
THE COURT: ALL RIGHT.
MR. CLARKE: IT WOULD REQUIRE EVIDENCE TO SHOW, THAT IS TO
DEMONSTRATE TO A JURY ABOUT THIS PHENOMENON OF
CROSS-HYBRIDIZATION.
THE COURT: AGAIN.
MR. CLARKE: WHEN DR. GERDES REFERS TO LET'S SAY A SAMPLE
TESTED IN JULY OF 1993 AND REFERS TO THAT AS AN INSTANCE OF
CONTAMINATION OR, QUOTE, UNEXPECTED ALLELES, THEN BY NECESSITY
PRESUMABLY, THE PHOTOGRAPH HAS TO COME OUT TO DEMONSTRATE IN FACT
IT'S A LOT WEAKER THAN THE EVIDENCE SAMPLES, THAT IS THE ALLELES
THAT ARE PRESENT AND ARE IN FACT CALLED BY THE ANALYST AND ALMOST
ALWAYS IS SIGNIFICANTLY FAINTER THAN THE C DOT WHICH THE COURT
I'M SURE WILL RECALL WAS ONE OF THE CONTROLS IN PLACE.
THE JURY WOULDN'T NECESSARILY HAVE TO REVISIT SEXUAL
ASSAULT SPILL OVER AND FINDING, FOR INSTANCE, VICTIM'S DNA IN A
SPERM FRACTION OR VICE VERSA.
THE JURY WOULD HAVE TO HEAR ABOUT HAIR SHAFT DNA
BECAUSE DR. GERDES ON SEVERAL OCCASIONS REFERS TO, AS AGAIN,
CONTAMINATION OR UNEXPECTED ALLELES, DEPENDING ON WHICH TERM HE
CHOOSES TO UTILIZE BASED ON RESULTS OBTAINED FROM HAIR SHAFTS.
THE JURY WOULD NEED TO HEAR, FOR INSTANCE, OR
ACTUALLY SEE IN SOME INSTANCES THE ABSENCE OF THE ALLELE THAT DR.
GERDES SAYS IS PRESENT FROM A PHOTOGRAPH. AND THAT, AGAIN, COULD
INVOLVE TESTING IN MAY OF 1993. IT COULD INVOLVE TESTING IN
AUGUST OF 1994.
THE JURY WOULD HAVE TO SEE HOW CONTAMINATION IS
SIGNALED. WHAT ARE THE TYPES, WHAT ARE THE TYPES OF SIGNALS THAT
TELL THE ANALYST, THAT ALERT THE ANALYST TO THE PROBLEM -- WELL,
NOT ACTUALLY THE PROBLEM, BUT THE PROPER PERFORMANCE OF THE
CONTROL IN DEMONSTRATING THIS POTENTIAL OF CONTAMINATION.
AND THEN LASTLY, THE JURY WOULD HAVE TO HEAR ABOUT
CASEWORK MIXTURES. THERE ARE AT LEAST ONE -- ACTUALLY THERE MAY
BE MORE THAN ONE INSTANCE -- OF -- THERE IS MORE THAN ONE
INSTANCE -- OF CASEWORK MIXTURES THAT DR. GERDES REFERS TO IN HIS
CHART AND DO WE IN FACT RELITIGATE THOSE PARTICULAR CASES.
WITH THESE STRIPS BY NECESSITY -- AND I'VE REFERRED
TO THE USE OF PHOTOGRAPHS -- A PHOTOGRAPH, QUESTION AND ANSWER
ABOUT THE INDIVIDUAL SAMPLES IN THAT PHOTOGRAPH, WHY AN INSTANCE
ALLEGED BY DR. GERDES TO BE CONTAMINATION IS NOT CONTAMINATION
AND A DISCUSSION ABOUT THAT, AND AGAIN SHOWING TO THE JURY WHAT
DOES CONTAMINATION REALLY LOOK LIKE AND HOW IS IT SIGNALED, THIS
WOULD LITERALLY REQUIRE A TRIAL WITHIN A TRIAL AND IT MAY REQUIRE
A TRIAL WITHIN A TRIAL AS TO MANY CASES THAT WERE CONDUCTED, THAT
IS IN TERMS OF TESTING CONDUCTED BY THE DNA LABORATORY IN CASES
TOTALLY UNRELATED TO THE PRESENT.
THAT I WOULD SUGGEST TO THE COURT IS THE TYPE OF
MATERIAL THAT SECTION 352 IS EXACTLY DESIGNED TO ADDRESS, TO
AVOID THESE DANGERS OF CONFUSION AND MISLEADING THE JURY AND,
SECONDARILY, WHAT MAY WELL CONSUME MUCH TESTIMONY AND IN FACT WHO
KNOWS HOW MUCH TESTIMONY.
THAT CONCLUDES MY COMMENTS AS TO EVIDENCE CODE
SECTION 352.
THE COURT I'M SURE WILL RECALL THAT IN THE MOTION,
THERE IS REFERENCE TO THE HEARSAY OPINIONS OF OTHER EXPERTS. I
DIDN'T INTEND TO ADDRESS THAT BECAUSE IT'S BEEN ADDRESSED
PREVIOUSLY IN ARGUMENT TO THIS COURT, AND IT WAS SIMPLY TO
REITERATE TO THIS COURT THE FACT THAT OUR POSITION ABOUT HEARSAY
OPINIONS STILL STANDS, PARTICULARLY IN REFERENCE TO THE PRICE AND
CORSACK CASES, WHICH, AGAIN, WERE PREVIOUSLY CITED TO THE COURT.
THE COURT: ALL RIGHT.
THANK YOU.
MR. CLARKE: THANK YOU.
THE COURT: MR. SCHECK.
MR. SCHECK: GOOD AFTERNOON, YOUR HONOR.
THE COURT: GOOD AFTERNOON, MR. SCHECK.
MR. SCHECK: THE KEY DEFENSE CONTENTION WITH RESPECT TO THE
DNA EVIDENCE IN THIS CASE IS IN FACT THAT THROUGH THE INADEQUATE
SUBSTANDARD EVIDENCE HANDLING PROCEDURES IN THE LOS ANGELES
POLICE DEPARTMENT, THEIR CUSTOM AND PRACTICE, THE EVIDENCE --
KEY PIECES OF EVIDENCE IN THIS CASE, THE BUNDY BLOOD DROPS, THE
ROCKINGHAM GLOVE WERE CROSS-CONTAMINATED.
ONCE THEY'RE CROSS-CONTAMINATED IN THAT LABORATORY,
AS THE PROSECUTION'S OWN WITNESSES HAVE ADMITTED, IT DOESN'T
MATTER WHAT THE RESULTS ARE AT LAPD AND -- THE DEPARTMENT OF
JUSTICE -- I'M SORRY -- AND CELLMARK BECAUSE THEY'RE GOING TO BE
CONSISTENT BECAUSE OF THE INITIAL CROSS-CONTAMINATION.
THAT HAS BEEN OUR CONTENTION SINCE THE OPENING
STATEMENT WHERE WE USED THAT BLACK BOX SHOWING ALL THE EVIDENCE
SAMPLES GOING INTO THE LAPD, AND ON THE OTHER HAND, THE
DEPARTMENT OF JUSTICE AT CELLMARK. IT WAS THE CLEAR THRUST OF
THE CROSS-EXAMINATION OF THE WITNESSES FROM THE DEPARTMENT OF
JUSTICE AND CELLMARK AND LAPD. THERE'S NO SECRET.
MR. CLARKE GETS UP HERE AND SAYS, WELL, THEY'RE GOING
TO DO THAT. THEY SHOULDN'T BE ALLOWED TO FOCUS SO MUCH ATTENTION
ON CONTAMINATION AT LAPD.
THAT'S OUR DEFENSE AND IT'S A RESPECTABLE SCIENTIFIC
DEFENSE. AND WHAT'S MOST INTERESTING OF ALL IS THAT WHEN WE WENT
TO THE LAB AND WE LOOKED AT THE DATA FROM ALL THE DIFFERENT
HYBRIDIZATION STRIPS, WHICH I'LL DISCUSS IN A SECOND, WE FOUND
CONCRETE OVERWHELMING DATA ABOUT THE INADEQUATE PROCEDURES AT THE
LOS ANGELES POLICE DEPARTMENT, THE INADEQUACIES OF THEIR CONTROLS
TO DETECT CONTAMINATION, THEIR INABILITY TO UNDERSTAND THAT THEY
HAD CONTAMINATION AND WHAT TO DO ABOUT IT, THEIR GROSS VIOLATION
OF EVERY FUNDAMENTAL PROCEDURE AND PROTOCOL OF RUNNING A
COMPETENT DNA LABORATORY. THAT'S WHAT WE FOUND.
AND NOT ONLY THAT, WE FOUND PRECISELY THOSE ISSUES IN
THIS CASE. THE USE OF PLASTIC BAGS TO HANDLE WET SWATCHES THAT
WOULD DEGRADE THEM, THE HANDLING OF DEGRADED DNA SAMPLES IN THE
PRESENCE OF A REFERENCE SAMPLE BY MR. YAMAUCHI WHEN HE HANDLED
THE BUNDY BLOOD DROPS AND THE GLOVE BETWEEN 9:00 O'CLOCK AND
11:20 IS AN ABSOLUTELY CRITICAL PERIOD IN THIS CASE.
AND THOSE CUSTOMS AND PRACTICES ARE THE SAME KINDS OF
CUSTOMS AND PRACTICES THAT WERE USED IN ALL THESE OTHER SAMPLES,
THEIR OWN VALIDATION STUDIES, THE WAY THEY HANDLED DATABASE
SAMPLES AND THE WAY THEY HANDLED CASEWORK. AND I'LL DISCUSS WHAT
HE DOES WITH CASEWORK IN A SECOND.
SO THE KEY POINT HERE IS, WE FOUND CHRONIC
CONTAMINATION IN THE WORK OF THIS LABORATORY. THE PROCEDURES
WHICH WERE USED IN THIS CASE WERE THE SAME PROCEDURES THAT WERE
USED ON THESE SAMPLES. SO THIS DATA SHOWS THE INADEQUACY OF
THOSE PROCEDURES.
KEY POINT, THE CONTROLS THAT WERE USED IN THE LAPD
VALIDATION STUDIES, IN THEIR CASEWORK, IN THEIR PROFICIENCY TESTS
AND THE STRIPS THAT DR. GERDES LOOKED AT ARE THE SAME CONTROLS
USED IN THIS CASE. WHAT HIS DATA SHOWS AND WHAT THE NATIONAL
RESEARCH COUNCIL, AS I'VE POINTED OUT TO THE COURT IN OUR
ARGUMENTS OVER DISCOVERY, CONCURS IS THAT IN THIS SYSTEM, THESE
CONTROLS ARE NOT NECESSARILY ADEQUATE TO DEMONSTRATE
CONTAMINATION IN A PARTICULAR EXPERIMENT, ALTHOUGH ONE CAN HAVE
CONTAMINATION IN THE LABORATORY AS A GENERAL MATTER.
IN OTHER WORDS, IF AT SOME PERIOD OF TIME, YOU'RE
GETTING RUNS OF EXTRA DOTS OR CONTAMINANTS AND POSITIVE CONTROLS
AND QUALITY ASSURANCE SAMPLES AND NEGATIVE CONTROLS DURING A
PERIOD OF TIME, YOU WON'T NECESSARILY SEE IT IN A PARTICULAR
CASE, BUT IT WILL SHOW UP AGAIN. AND IT DOESN'T MEAN THE ABSENCE
-- I GUESS IT'S THE ABSENCE OF EVIDENCE ARGUMENT AGAIN. BUT
SCIENTIFICALLY, IT DOESN'T MEAN THAT THERE ISN'T CONTAMINATION IN
THE LABORATORY AND THAT THE PARTICULAR EXPERIMENT IN QUESTION
WASN'T CONTAMINATED.
THIS DATA PROVES THAT. THIS DATA SHOWS LOTS OF
CONTAMINATION AND IN MANY INSTANCES, THE NEGATIVE CONTROLS ARE
CLEAN. ONE OF THE CHARTS THAT I SHOWED YOU ON FRIDAY SHOWS THAT
THE EXTRACTION CONTROL IS DIRTY 40 PERCENT OF THE TIME BETWEEN
MAY AND JULY AND THE AMPLIFICATION CONTROL IS -- SHOWS NO
CONTAMINATION. IT SHOWS THAT THE CONTAMINATION THAT WE'RE
GETTING IS COMING FROM THE SAMPLE HANDLING PROCEDURES, THAT THE
HANDLING OF THE SAMPLES INITIALLY IN THE EXTRACTION, THAT WOULD
BE THE EVIDENCE PROCESSING ROOM AND THE SEROLOGY LAB WHERE ALL
THE SAMPLES WERE HANDLED BY MR. YAMAUCHI, THAT'S WHAT THE DATA
INDICATES THE CONTAMINATION COMES FROM. NOT WHEN THEY GO TO THE
PARKER CENTER AND THEY DO THE AMPLIFICATION.
SO THIS DATA GOES DIRECTLY TO THE SAMPLE HANDLING AND
IT SHOWS EXACTLY WHERE THEIR CONTAMINATION IS COMING FROM.
THE ARGUMENT OF THE PROSECUTOR HERE IS THAT WITHOUT
ANY AFFIDAVIT OR ANY EXPERT OPINION, HE'S COMING FORWARD AND
SAYING, WELL, WE DISAGREE WITH DR. GERDES' JUDGMENT. AND I
SHOULD SAY THAT THE SAME ANALYSIS THAT DR. GERDES IS GOING TO BE
PUT FORWARD -- IS GOING TO PUT FORWARD WILL BE SECONDED BY DR.
MULLIS.
SO THEY'RE SUBSTITUTING THEIR JUDGMENT. THEY'RE
SAYING, THIS ANALYSIS IS WRONG, THAT THIS CONTAMINATION DOESN'T
MAKE A DIFFERENCE, IT DOESN'T PRODUCE ERRORS, IT DOESN'T INDICATE
THAT THEY HAVE SUBSTANDARD PROCEDURES, IT DOESN'T INDICATE THAT
THE SAME PROCEDURES THEY USED IN THIS CASE ARE INADEQUATE. AND
THOSE ARE CLASSIC MATTERS OF WEIGHT.
IF THEY WANT TO CROSS-EXAMINE ON THOSE POINTS, THEY
SHOULD BE FREE TO DO SO. BUT THIS IS THE HEART OF OUR DEFENSE,
AND IT SEEMS TO ME THAT THERE'S NO FACTUAL SCIENTIFIC BASIS IN
THIS RECORD OTHER THAN MR. --
THE COURT: WERE YOU HERE FOR THE EARLIER ARGUMENTS?
MR. SCHECK: I'M SORRY?
THE COURT: WE HAVE A MULTI-HEARTED BEAST HERE.
MR. SCHECK: A MULTI --
THE COURT: HEARTED BEAST.
MR. SCHECK: YES.
THE COURT: EVERY ARGUMENT I HEAR, THIS IS THE HEART OF OUR
DEFENSE.
MR. SCHECK: OH. WELL, LET ME PUT IT THIS WAY.
THE COURT: AND I'VE HEARD THAT -- THIS IS THE THIRD TIME
I'VE HEARD THAT ARGUMENT TODAY.
MR. SCHECK: I UNDERSTAND.
THE COURT: OKAY.
MR. SCHECK: THIS IS THE HEART OF OUR DEFENSE TO DNA
EVIDENCE.
THE COURT: OKAY.
MR. SCHECK: PARTICULARLY THE BUNDY BLOOD DROPS, THE GLOVE,
THE BRONCO. HOW IMPORTANT IS DNA EVIDENCE TO THE PROSECUTION'S
CASE? I DARE SAY IT IS, IN THE WORDS OF THE MC DONALD CASE,
WHICH STRANGELY ENOUGH, THE PEOPLE ARE CITING, A KEY ELEMENT OF
THEIR PROOF. AND IT'S SOMETHING THAT WE SHOULD BE GIVEN FULL
LATITUDE TO REBUT.
AND FRANKLY, WHEN THEY PUT ON A CORONER FOR EIGHT
DAYS IN THE FASHION THAT THEY DID, IT SEEMS TO ME THAT ONE DAY OF
DIRECT TESTIMONY OF DR. GERDES WHERE HE INDICATES EXACTLY WHAT HE
FOUND AT THE LAPD LABORATORY AND TIES IT DIRECTLY TO THE
PROCEDURES USED IN THIS CASE AND THE ISSUE OF CONTAMINATION AND
CROSS-CONTAMINATION TIES IT DIRECTLY TO ALL THOSE QUESTIONS I
ASKED GARY SIMS ABOUT CROSS-CONTAMINATION FACTORS IN THE
LABORATORY. WE'RE GOING TO GO THROUGH PRECISELY THOSE SAME
LOGOS, PRECISELY THOSE SAME AREAS.
GARY SIMS ADMITTED THAT ALL THOSE PRACTICES CREATED A
RISK OF CROSS-CONTAMINATION. HE ON THE OTHER HAND FELT, WELL,
IT'S NOT A SUFFICIENT RISK AND IT'S NOT SO TERRIBLE IN THIS CASE
BECAUSE I'M GOING TO RELY ON THE SUBSTRATE CONTROLS.
BUT IT'S NOT LIKE THE PROSECUTION WITNESSES SAID,
THAT THE PRACTICES AND PROCEDURES FOLLOWED AT THE LAPD LABORATORY
WERE SOUND. FRANKLY, I THINK THAT THEY INDICATED QUITE THE
CONTRARY.
THE QUESTION IS, IF YOU'RE ENGAGING IN THOSE KINDS OF
PRACTICES, HOW BAD CAN YOUR CONTAMINATION PROBLEM BE AND CAN THAT
CONTAMINATION PROBLEM CAUSE ERRORS AND CAN YOU BE HAVING
CROSS-CONTAMINATION OF SAMPLES AND NOT DETECTING IT WITH THESE
PARTICULAR CONTROLS.
THE DATA THAT WE'VE GOTTEN FROM THE PROSECUTION'S OWN
LABORATORY GOES TO THIS ISSUE. IT CORROBORATES THE POINT. IT'S
WHAT DR. GERDES AND DR. MULLIS ARE GOING TO TESTIFY TO.
THE COURT: SO YOU'RE SAYING THAT YOU CAN PRESENT THIS IN
AN INTELLIGIBLE FASHION IN ONE COURT DAY?
MR. SCHECK: YEAH.
MAYBE A COURT DAY AND AN HOUR BECAUSE I'M NOT SO
QUICK WITH THE EXHIBITS. BUT I SHOWED YOU THE CHARTS. OH, THIS
PART OF THE DIRECT EXAMINATION IS HALF A MORNING. I MEAN, THIS
IS NO MORE THAN AN HOUR AND 20 MINUTES.
I THINK THAT WHAT SHOULD BE NOTED TOO IS THAT MR.
CLARKE GETS UP HERE AND SAYS, WELL, YOU KNOW, THIS DQ-ALPHA
SYSTEM HAS A PROBLEM. SOMETIMES WHEN WE SEE 1.1 DOTS, IT COULD
BE WHAT IS KNOWN AS AN ARTIFACT, THIS SO-CALLED DX GENE, AND
SOMETIMES WHEN WE SEE 1.3, THAT COULD BE A CROSS-HYBRIDIZATION.
AND THE TESTIMONY IN THIS CASE FROM THE USER GUIDE,
WHICH INCIDENTALLY, NOT ALL THE PROSECUTION WITNESSES ACCEPT AS A
BIBLE. ROBIN COTTON REJECTED PARTS OF IT. BUT THE USER GUIDE
SAYS THAT IF YOU PUT TOO MUCH DNA IN A LANE, YOU MAY GET
CROSS-HYBRIDIZATION.
WE CROSS-EXAMINED GARY SIMS ABOUT THE 1.3 ALLELE THAT
WILL COME UP IN DR. GERDES' TESTIMONY THAT WAS PRESENT ON SAMPLE
31, WHICH IS A STAIN FROM THE BRONCO CONSOLE. IT IS THAT DOT,
THAT LIGHT DOT THAT PUTS MR. GOLDMAN'S GENOTYPE IN THE BRONCO
>FROM THE COLLECTION ON JUNE 14TH, THAT DOT AND THAT DOT ALONE.
YET ON EVIDENCE ITEM NO. 52, WHEN THEY GET A 1.3 DOT OF SIMILAR
LIGHT INTENSITY, THEY REJECT THAT ONE AND SAY IT'S AN ARTIFACT.
THE WHOLE ISSUE -- AND IN EITHER -- IN NEITHER
INSTANCE IS THERE A LARGE AMOUNT OF DNA. THE POINT IS, IS THAT
THERE'S A VERY, VERY SERIOUS DEBATE ABOUT THE LIMITATIONS OF THIS
SYSTEM WITH RESPECT TO THAT 1.3 DOT.
NOW, IN THE CHART AND IN THE PRESENTATION TO THE
JURY, DR. GERDES MAKES VERY, VERY CLEAR -- IT'S WHY HE RENAMED
THAT CHART THAT JUST CONTAINS HIS RAW DATA TO UNEXPECTED ALLELES
INSTEAD OF JUST CONTAMINATION BECAUSE WE'RE MAKING THE
DISTINCTION. WE'RE GOING TO MAKE IT VERY CLEAR, THERE IS CERTAIN
INSTANCES WHERE THERE'S ARTIFACTS, THERE'S CERTAIN INSTANCES
WHERE YOU SEE A 1.1 DOT ON A STRIP OR A 1.3 DOT ON A STRIP, WHICH
ARGUABLY IS EITHER A CONTAMINANT OR AN ARTIFACT.
BUT IT'S OUR POSITION IN THAT SITUATION IS THAT YOU
HAVE TO PRESUME THAT A CONTAMINANT OR ANY SENSIBLE LAB WOULD, AND
CERTAINLY YOU CAN'T DRAW MANY CONCLUSIONS FROM THAT. AND IT'S A
SERIOUS DEFECT IN THE SYSTEM. IT COMES OUT THROUGH AN
EXAMINATION OF THIS DATA, AND THE FACT OF THE MATTER IS, IT'S IN
SOME OF THE MOST IMPORTANT CASE SAMPLES HERE. IT'S RIGHT ON THE
DOJ TYPING STRIP WITH RESPECT TO THE BRONCO CONSOLE, ITEM 31, AND
IT'S RIGHT THERE ON ITEM 52, THE BUNDY BLOOD DROP, AND IT BECOMES
A SIGNIFICANT ISSUE.
SO I DON'T UNDERSTAND HOW MR. CLARKE CAN GET UP HERE
AND SAY, WELL, HERE'S A -- WE UNDERSTAND WHAT IT IS. SO IT'S
OKAY, AND DR. GERDES AND DR. MULLIS ARE NOT ALLOWED TO GET UP
THERE AND SAY THAT THEY DISAGREE WITH HIM. AND I HAVEN'T SEEN
ANYTHING ELSE HERE IN TERMS OF EXPERT AFFIDAVITS THAT -- IN TERMS
OF A 352 MOTION THAT WOULD JUSTIFY THE EXTRAORDINARY REMEDY OF
PRECLUDING THEIR TESTIMONY.
EVEN THE EXAMPLES THAT DR. GERDES CAN GIVE WITH
RESPECT TO TYPING ERRORS, IT'S VERY INTERESTING. I MAY HAVE THIS
WRONG, BUT I BELIEVE THE TWO EXAMPLES THAT MR. CLARKE ARE TALKING
ABOUT ARE A PROFICIENCY TEST THAT WAS PERFORMED BY LAPD.
AND THE FIRST TYPING ERROR, THEY MISTYPED THE
REFERENCE SAMPLE FROM A VICTIM IN A RAPE CASE. THAT'S ALL THE LAB
KNOWS. IT'S THE BLOOD FROM THE VICTIM IN THE RAPE CASE. THEY
MISTYPED THAT.
WHEN THEY LOOK AT -- ON THE SAME RUN AT THE
EPITHELIAL CELLS FROM THE EXTRACTION FROM THE VAGINAL SWAB, THEY
SEE THAT IT DOESN'T MATCH UP. IN OTHER WORDS, IT'S A RAPE CASE,
AND THE PERSON WHO'S SUPPOSED TO BE THE RAPE VICTIM IN THE
EVIDENCE SAMPLE HAS A DIFFERENT GENOTYPE THAN THE BLOOD FROM THE
VICTIM.
SO WHAT DO THEY DO? THEY DO IT AGAIN. AND AS HE
INDICATES, THEY GET THE SAME WRONG TYPE. WHY ARE THEY GETTING THE
WRONG TYPE? BECAUSE THERE'S A 1.3 ALLELE THAT I THINK BY HIS OWN
PRESENTATION, HE'S CONCEDING IS A CONTAMINANT. BECAUSE IT SHOWED
UP IN THE NEGATIVE CONTROL, IT'S A CONTAMINANT.
I MEAN, IT'S ONE THING TO SAY, WELL, THE CONTROL,
QUOTE, UNQUOTE, WORKED. WELL, WHAT IT'S INDICATING IS A
CONTAMINANT.
WE DON'T SEE ANYTHING IN THEIR ANALYSIS OF THIS
PROFICIENCY TEST THAT SAYS, WE DID IT TWICE, WE CAME UP WITH THE
1.3 CONTAMINANT, WHERE DID THAT COME FROM, HOW DID WE GET IT OR
IT'S NOT REALLY A CONTAMINANT, IT'S A CROSS-HYBRIDIZATION.
WHAT WE SEE IS THAT THEY DO THE PROFICIENCY TEST A
THIRD TIME UNTIL THEY CAN RESOLVE THE DISCREPANCY. AND IT IS THE
THIRD TIME THAT THEY TURN IN THE RESULTS.
AND FRANKLY, WE ARE GOING TO OFFER TESTIMONY THAT
THAT IS COMPLETELY CONTRARY TO THE WAY THAT ANY GOOD LABORATORY
SHOULD BE TAKING A PROFICIENCY TEST OR RUNNING WITH A PROFICIENCY
TEST BECAUSE IN A CASE, YOU COULDN'T DO THAT NECESSARILY. YOU
COULDN'T DO THAT AT ALL.
AND THAT'S THE PROBLEM WITH THE WAY THESE LABS WORK.
AND WE ARE MAKING A NO HOLDS, BAR ATTACK ON THE FORENSIC
COMMUNITY AND THE WAY THEY DEAL WITH PROFICIENCY TESTS AND THEIR
FAILURE TO DO EXTERNAL BLIND PROFICIENCY TESTS, THEIR FAILURE TO
DO HARD TESTS THAT REPLICATE THE VERY SAMPLES IN THIS CASE.
NOT ONE OF THESE LABORATORIES TESTIFIED THAT THEY
EVER DID A PROFICIENCY TEST THAT INVOLVED MIXED BLOOD SAMPLES OR
DEGRADED BLOOD SAMPLES WITH THE POSSIBLE EXCEPTION OF THE FIRST
TWO CALIFORNIA ASSOCIATION OF CRIME LAB DIRECTOR STUDIES. AND IN
THOSE CASES, CELLMARK GOT FALSE POSITIVES ON RFLP, AND THEIR
SECOND FALSE POSITIVE, AS OUR WITNESSES WILL POINT OUT, IS A
MODEL FOR THIS CASE.
THE COURT: SLOW DOWN.
MR. SCHECK: OKAY.
SO WE THINK ALL THAT IS PLAINLY RELEVANT, IT GOES TO
THE HEART OF OUR DEFENSE IN THIS CASE AND WE SHOULD BE ALLOWED TO
PRESENT IT.
NOW, JUST TO BE CLEAR ABOUT WHAT DR. GERDES LOOKED
AT, HE LOOKED AT EVERYTHING. WE CAN SEE EVERY STRIP UP TO I
GUESS AUGUST THAT THE LAB TYPED.
THE COURT: BUT YOU HAVEN'T EVEN ADDRESSED MR. CLARKE'S
FUNDAMENTAL ARGUMENT, THAT A LOT OF THIS STUFF DEALS WITH TESTING
CASEWORK VALIDATION STUDIES, PROFICIENCY TESTING YEARS BEFORE AND
SIGNIFICANT TIME AFTER AND TRADITIONALLY HERE IN CALIFORNIA, WE
RESTRICT THAT KIND OF TESTIMONY TO A REASONABLE WINDOW PERIOD
ALONG THE RELEVANT TESTING IN QUESTION.
MR. SCHECK: WELL --
THE COURT: SO WHY SHOULDN'T I IMPOSE SAY, FOR EXAMPLE, A
30-DAY WINDOW ON THIS?
MR. SCHECK: THE REASON THAT YOU SHOULDN'T IMPOSE A 30-DAY
WINDOW IS BECAUSE IT IS A CHRONIC PROBLEM AND IT GOES TO THE
HEART OF THE LABORATORY PROCEDURES.
BY THE LITERATURE WE HAVE ITSELF FROM THE NRC AND
>FROM OTHERS AND EVEN THE PRESENT CASE LAW IN THIS CASE, WE DON'T
KNOW ENOUGH ABOUT DQ-ALPHA TESTING OR PCR BASE TESTING TO STATE
WITH ANY ASSURANCE THAT THE CHRONIC CONTAMINATION PROBLEM THAT
BEGINS IN THE SECOND MONTH THAT THE LAB IS IN OPERATION AND GOES
ALL THE WAY THROUGH WOULDN'T BE AFFECTING RESULTS IN THIS CASE.
IN FACT, WE HAVE QUITE THE CONTRARY.
ONE OF THE KINDS OF CONTAMINATION THAT WE CAN HAVE IS
WHAT'S KNOWN AS PCR CARRY-OVER CONTAMINATION, AND THAT IS A
LITERAL ACCUMULATION OF AMPLICONS.
THE COURT: I RECOLLECT THE TESTIMONY.
MR. SCHECK: AND IF THAT KIND OF AMPLICON BUILDUP BEGINS IN
A LABORATORY AND IS NOT DETECTED AND IT GOES UNCHECKED, IT WILL
AFFECT ANALYSES FOR YEARS.
IN CLINICAL LABORATORIES, WHAT THEY HAVE FOUND IN
EXTERNAL TESTS ON HEPATITIS, ON AIDS, HIV VIRUS, ON A WHOLE HOST
OF -- LYME DISEASE AND A WHOLE HOST OF ORGANISMS IS, ONCE YOU GET
THIS KIND OF CONTAMINATION IN YOUR LABORATORY, THEY HAVE TO CLOSE
THE PLACES DOWN. THEY CAN'T GET RID OF IT.
AND THE PROBLEM WE HAVE IN THE LAPD LABORATORY IS
THAT OUR DATA SHOWS CHRONIC AND SUBSTANTIAL CONTAMINATION THAT
WAS NOT DETECTED, NOT RECOGNIZED FOR WHAT IT WAS, WASN'T DEALT
WITH THROUGHOUT THE TIME THAT THEY LITERALLY STARTED TAKING CASES
ALL THE WAY THROUGH THIS CASE.
NOW, WE ARE GOING TO OF COURSE, AND AS YOU SAW OUR
CHARTS, ARE GOING TO ZERO IN ON THIS PARTICULAR CASE AND THE
WINDOW HERE. BUT WHAT WE HAVE TO DEMONSTRATE THROUGH THEIR OWN
VALIDATION STUDIES -- THEY CALL THEM VALIDATION STUDIES BECAUSE
THEY'RE SUPPOSED TO VALIDATE THAT THEIR PEOPLE ARE USING CORRECT
PROCEDURES THAT WON'T CAUSE CONTAMINATION -- THROUGH THEIR
VALIDATION STUDIES, THROUGH THEIR EASY WORK ON JUST TAKING KNOWN
SAMPLES, FOR EXAMPLE, IN THE KOREAN DATABASE -- FROM THEIR OWN
PROFICIENCY TESTING, WHICH ARE THE CLOSEST THING WE HAVE FROM
CASEWORK, WE SEE THESE SAME PROBLEMS, CONTAMINATION DUE TO SLOPPY
HANDLING TECHNIQUES, POOR HANDLING TECHNIQUES, DEFECT IN THEIR
BASIC PROTOCOL, AGAIN AND AGAIN, NOT PICKED UP BY NEGATIVE
CONTROLS. THESE ARE THE KEY AREAS OF PROOF.
SO WE THINK THAT WE HAVE TO HAVE THE OPPORTUNITY TO
PRESENT THAT DATA.
THE COURT: WELL, HOW BROAD A WINDOW ARE YOU TALKING ABOUT
HERE?
MR. SCHECK: WELL, WE'RE GOING TO SHOW FIRST THE BROAD --
WE HAVE THE DATA FROM THE VERY BEGINNING OF THE LABORATORY.
WE'RE GOING TO SHOW THE GENERAL PATTERN IN TERMS OF THE STRIPS,
ALL THE STRIPS ANALYZED, ALL THE RUNS ANALYZED EACH MONTH TO SHOW
HOW CHRONIC AND SUBSTANTIAL THE CONTAMINATION IS. WE'RE THEN
GOING TO SHOW A CHART THAT EXPLAINS EXACTLY WHERE THE PROBLEM
LIES, PARTICULARLY IN MAY THROUGH JULY IN TERMS OF THE EXTRACTION
CONTROLS, THE WINDOW OF THIS CASE.
SO WE'RE GOING TO START WITH THE BROAD PROBLEM,
INDICATING HOW IT IS INHERENT IN THEIR PROCEDURES AND THEIR
SYSTEM, IT'S SYSTEMIC, AND WHY THAT'S IMPORTANT. THEN WE'RE
GOING TO NARROW IN IN TERMS OF THE DATA ON THE WINDOW OF THIS
PARTICULAR CASE.
BUT IT'S THE ONLY WAY TO REBUT THE BASIC CONTENTION
THAT THEY SAY, WELL, LOOK, THESE CONTROLS WORK IN THIS
EXPERIMENT. THEREFORE, EVERYTHING'S FINE.
OUR DATA SHOWS AGAIN AND AGAIN THE INADEQUACY OF THE
CONTROLS AND THE CONTAMINATION ERRORS. AND THEY CAN SAY ALL THEY
WANT THAT LIGHT DOTS DON'T MAKE A DIFFERENCE. BUT THEIR OWN
WITNESSES CONCEDED THAT WHEN YOU HAVE A MIXTURE, THAT THE PRIMARY
COMPONENT OF THE MIXTURE, THE PRIMARY CONTRIBUTOR CAN LIGHT UP
THAT C DOT, AND THEN YOU'RE GOING TO HAVE LIGHT DOTS WITHIN THAT
MIXTURE AND IT MAKES IT VERY DIFFICULT TO INTERPRET.
THE USER GUIDE, EVERYBODY SAYS THAT. THE NRC SAYS
THAT. SO WHEN YOU HAVE THESE KINDS OF LOW-LEVEL CONTAMINATION
PROBLEMS, IT'S A SERIOUS MATTER AND IT GOES RIGHT TO THE HEART OF
THE EVIDENCE IN THIS CASE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: THE OTHER THING THAT WE'RE GOING TO SHOW HERE
-- AND IT DISTINGUISHES IT FROM BREATHALIZER IN A NUMBER OF WAYS
-- BUT THEY NEVER GOT IT RIGHT. FROM THE MOMENT THEY OPENED UP
THIS LABORATORY, THEY NEVER GOT IT RIGHT.
WE'RE GOING TO PUT ON TESTIMONY, FOR EXAMPLE, THAT
THE HOOD, THE BIOLOGICAL SAFETY CABINET WHERE ALL THE EXTRACTIONS
ARE PERFORMED -- MR. MATHESON, MR. YAMAUCHI TESTIFIED THEY
THOUGHT WAS A LAMINAR FLOW HOOD, A LAMINAR FLOW HOOD THAT HAS A
CIRCULAR AIR FLOW. IT'S NOT A LAMINAR FLOW HOOD. IT'S A CHEMICAL
HOOD THAT SUCKS IN ALL THE AIR FROM THE LABORATORY AND RIGHT
THROUGH THAT AREA.
THAT IS A FUNDAMENTAL. THE REAGENTS ON THE COUNTER
ARE NOT PROPERLY ALIQUOTED AND ARE OUT OF DATE. WE'RE GOING TO
SHOW THAT. WE'RE GOING TO GO FROM A BROAD ANALYSIS SHOWING
CHRONIC CONTAMINATION OF THE LABORATORY TO THE SPECIFICS OF THE
CASE, TO THE -- EVERY ONE INVOLVING THE SAME PROCEDURES THAT ARE
USED HERE AND RIGHT TO THE REAGENTS, RIGHT TO THE WORK STATION
AND SHOW THAT IT'S A CHRONIC PROBLEM, THAT THESE PEOPLE REALLY
DON'T KNOW WHAT THEY'RE DOING.
AND IF THAT'S THE CASE, IF THAT'S THE CASE, THEIR
WHOLE DNA DEFENSE WHICH RESTS ON THIS NOTION THAT, WELL, THESE
SUBSTRATE CONTROLS WERE DEFINITELY RUN STRICTLY AND PARALLEL,
EVERYTHING WAS DONE RIGHT, WHEN MR. YAMAUCHI OPENED UP THE
REFERENCE TUBE, HE COULDN'T HAVE -- IT MAY HAVE BEEN A BAD
PRACTICE TO DO IT AT THE SAME TIME AS THE EVIDENCE SAMPLES, BUT
HE COULDN'T POSSIBLY HAVE MADE A MISTAKE, THOSE KINDS OF THINGS
DON'T HAPPEN -- WELL, IN THIS LAB, THEY HAPPEN AND THEY'RE
HIGH-RISK CONDITIONS THAT INVITE ERROR.
AND THAT'S THE ONLY WAY WE CAN DIRECTLY ATTACK THAT
IN TERMS OF PROVING THAT IT'S A SYSTEMIC PROBLEM BY A LABORATORY
THAT HAS INADEQUATELY TRAINED PERSONNEL, INADEQUATE PROCEDURES
THAT CAUSE CONTAMINATION THAT LEAD TO ERRORS. THAT'S PRECISELY
THE THEORY OF OUR CASE.
SO THIS IS THE GUTS OF IT. IT WON'T TAKE MORE THAN I
THINK TWO HOURS TO PUT ON THOSE CHARTS. THE CHARTS WILL DIRECTLY
ZERO IN ON THE EVIDENCE. IF IT'S GOING TO TAKE MR. --
MR. CLARKE I THINK BACKED OFF A LITTLE BIT, THE
ARGUMENT THAT HE COULDN'T DELINEATE THE DIFFERENCE BETWEEN HIS
WITNESSES OR HIMSELF AND DR. GERDES ON THIS DX QUESTION OR HOW
YOU INTERPRET A STRIP. HE'S A VERY SKILLED ADVOCATE. HE'LL GET
RIGHT TO THE POINT.
EVERYBODY KNOWS WHAT THE CRITICISMS OF DR. GERDES AND
OTHERS ARE COMPARED TO PEOPLE IN THE FORENSIC COMMUNITY. IT'S A
DEBATE THAT HAS TO GO ON IN FRONT OF THE JURY. IT'S A DEBATE
THAT WOULD HAVE GONE ON IF WE HAD HADE A KELLY-FRYE HEARING.
I'M NOT AT ALL CERTAIN THAT THIS EVIDENCE WOULD BE
BEFORE THE JURY TODAY IF WE HAD ACTUALLY HAD THAT HEARING. AND
THIS WOULD BE CLASSIC PRONG 3 KINDS OF MATERIAL WITH RESPECT TO
LAPD.
THE COURT: MR. CLARKE.
MR. CLARKE: JUST A BRIEF COMMENT, YOUR HONOR.
THE COURT: YES. YOUR MOTION.
MR. CLARKE: THANK YOU.
JUST WITH REGARD TO THE FACT THAT THIS WAS BROUGHT UP
IN OPENING STATEMENT, THAT IS NOT A VEHICLE THAT MAKES EVIDENCE
OTHERWISE INADMISSIBLE, SOMEHOW ADMISSIBLE.
OBVIOUSLY, THE DEFENSE HAS PLACED STOCK IN THEIR
ALLEGATION THAT THIS WAS A LABORATORY THAT SUFFERS CONTAMINATION.
THAT'S BEEN A THEME NOT ONLY IN OPENING STATEMENT, BUT ALSO IN
CROSS-EXAMINATION. BUT IT DOESN'T MAKE IT TRUE AND IT DOESN'T
MAKE EVIDENCE OTHERWISE INADMISSIBLE SOMEHOW ADMISSIBLE.
NOW, MR. SCHECK SPOKE JUST A FEW MOMENTS AGO ABOUT A
CHRONIC PROBLEM. THE ALLEGATION IS, IT'S A CHRONIC PROBLEM, BUT
IT DIDN'T HAPPEN IN THIS CASE BECAUSE THE EVIDENCE, THE
PARTICULAR SAMPLES IN THIS CASE, THE ABSOLUTE WEALTH OF CONTROLS
DEMONSTRATE IT DIDN'T HAPPEN HERE.
SO THE QUESTION IS, IS SOMETHING THAT'S ALLEGED TO
HAVE HAPPENED PREVIOUSLY OR AS MUCH AS 13 MONTHS BEFORE THE
TESTING IN THIS CASE OR EVEN A MONTH BEFORE THE TESTING IN THIS
CASE, IS THAT SUFFICIENTLY PROBATIVE TO OUTWEIGH CONFUSING AND
MISLEADING THE JURY. AND I THINK THAT'S THE CENTRAL QUESTION
THAT ULTIMATELY THIS COURT IS GOING TO HAVE TO DECIDE.
AND IT'S CLEARLY OUR VIEW THAT 180 MINI TRIALS GOING
OVER THE 180 ALLEGATIONS THAT DR. GERDES HAS MADE IS NOT CALLED
FOR IN THIS CASE BECAUSE OF THE WEALTH OF RESULTS, BECAUSE OF THE
FACT THAT THE CONTROLS OPERATED AS THEY'RE SUPPOSED TO AND
BECAUSE OF THE --
THE COURT: OF THESE 180 STRIPS YOU'RE TALKING ABOUT HERE,
HOW MANY WERE DONE BY THE OPERATOR IN THIS CASE?
MR. CLARKE: I HAVEN'T MADE SOME OF THE TABULATIONS THAT
THE COURT HAS ASKED ME QUESTIONS ABOUT. I WOULD ESTIMATE A
QUARTER. I THINK MISS REILLY CONDUCTED MORE TESTS, AND THERE WAS
A THIRD ANALYST, MR. KLAN AS WELL. SO I WOULD ESTIMATE DURING
THE WHOLE TIME PERIOD, THAT MR. YAMAUCHI WAS INVOLVED IN PERHAPS
A QUARTER, A VERY ROUGH ESTIMATE AGAIN.
NOW, THE COURT HAS RAISED THE QUESTION OF MR. SCHECK,
WELL, CAN YOU DO THIS IN A DAY, AND MR. SCHECK JUST NOW MENTIONED
HE CAN DO IT IN TWO HOURS. I THINK IT CAN BE DONE IN AN HOUR
>FROM THEIR PERSPECTIVE. THAT'S NOT THE PROBLEM. ALL THEY HAVE
TO DO IS MARK THE CHARTS AND HAVE DR. GERDES DESCRIBE, WELL, THIS
IS WHAT I'VE DISCOVERED AND NOT GET INTO AN INDIVIDUAL SAMPLE AT
ALL.
BUT THE PROBLEM IS, THE INCORRECT OPINIONS THAT DR.
GERDES IS GIVING ABOUT THESE 180 SAMPLES, AND NOT ALL OF THEM,
BUT CERTAINLY BY FAR, THE BULK OF THEM, WOULD HAVE TO BE EXPOSED
STONE BY STONE. AND THAT IS WHERE TIME COMES INTO PLAY.
BUT AGAIN, I DON'T WANT THE COURT TO THINK THAT THIS
IS AN ALLEGATION RESTING PRIMARILY ON TIME, ALTHOUGH IT WOULD
ULTIMATELY I THINK CONSUME A GOOD DEAL OF TIME. IT'S THE DANGER
OF MISLEADING THIS JURY INTO DECIDING 180 SEPARATE TRIALS OR 180
SEPARATE CASES. AND I DON'T THINK THAT THAT'S THE TYPE OF
PROBATIVE VALUE, PARTICULARLY IN THE CONTEXT OF THE RESULTS IN
THIS CASE AND THE FACT THAT THE CONTROLS OPERATED PROPERLY, THAT
MERITS THIS TYPE OF SHOWING.
THE COURT: DID ANYBODY BESIDES MR. YAMAUCHI TEST THE
STRIPS INVOLVED HERE, DO THE DQ-ALPHA TESTING THAT WE'RE TALKING
ABOUT HERE?
MR. CLARKE: NO.
THE COURT: ERIN REILLY'S NAME CAME UP SEVERAL TIMES, BUT
MY RECOLLECTION IS THAT SHE DID NOT DO ANY OF THIS TESTING.
MR. CLARKE: CORRECT.
THE COURT: THIS TESTING I MEAN.
MR. CLARKE: IN THIS CASE. IS THAT WHAT YOU'RE REFERRING
TO?
THE COURT: YES.
MR. CLARKE: YES. ONLY MR. YAMAUCHI.
THERE IS NOTHING THAT PREVENTS DR. GERDES OR DR.
MULLIS OR WHOMEVER THE DEFENSE HAS TESTIFYING TALKING ABOUT THE
RESULTS IN THIS CASE, 1.3 ALLELES AND WHEN THEY CAN OR CANNOT
SHOW UP, THE SAME WITH 1.1 ALLELES AND ALL THE TRADITIONAL
MATERIALS THAT DR. GERDES HAS TESTIFIED TO BETWEEN 20 AND 30
TIMES. HE DOES THIS FREQUENT, HE DOES THIS OFTEN AND HE DISCUSSES
CASE SPECIFIC RESULTS AND WHAT HE BELIEVES TO BE LIMITATIONS OF
THE SYSTEM NEARLY EVERY TIME.
SO THERE'S NOTHING THAT PRECLUDES THOSE EXPERTS
TALKING ABOUT THESE FACTORS THAT MR. SCHECK JUST BROUGHT UP. BUT
THE DIFFERENCE IS, DOES THE DEFENSE HAVE THE RIGHT TO GO INTO ALL
OF THESE EXTRANEOUS TESTS THAT WEREN'T INVOLVED IN THIS CASE,
WHICH, AS I MENTIONED, COVER A 15-MONTH TIME PERIOD AND COVER
OBVIOUSLY A GREAT NUMBER OF STRIPS.
IT'S OUR VIEW THAT THE DEFENSE DOES NOT HAVE A RIGHT
TO TRY 180 DIFFERENT CASES. AND ULTIMATELY WHILE THEY MIGHT BE
ABLE TO DO IT WITH GREAT DISPATCH, IT WOULD MISLEAD THE JURY TO
HEAR THAT EVIDENCE WITHOUT TRULY EXPOSING DR. GERDES' OPINIONS IN
EACH INDIVIDUAL INSTANCE.
MR. SCHECK: JUST A BRIEF FACTUAL POINT.
ERIN REILLY -- THE TESTIMONY IN THIS CASE WAS THAT
ERIN REILLY WAS THE SUPERVISOR OF MR. YAMAUCHI AND THE TWO OF
THEM SET UP THE LAB TOGETHER. SHE SUPERVISED THE DNA WORK IN
THIS CASE, REVIEWED THE RESULTS.
THE POINT IS, IT'S SYSTEMIC. IT'S A SYSTEMIC
PROBLEM, AND THAT'S WHAT OUR DATA SHOWS. THEY SET UP THESE
PROCEDURES TOGETHER, THEY FOLLOWED THEM TOGETHER. IT WON'T DO TO
BREAK OUT MR. YAMAUCHI FROM ERIN REILLY.
THE COURT: WHY NOT?
MR. SCHECK: BECAUSE THE CONTROLS AT ISSUE, THE PROCEDURES
THAT THEY FOLLOWED PRESUMABLY ARE FOLLOWED BY THE OPERATORS. AND
WHAT WE HAVE HERE IS SYSTEMIC. IT SHOWS THAT THE --
THE COURT: WELL, IF IT'S SYSTEMIC, THEN IT WOULD APPLY TO
MR. YAMAUCHI JUST AS IT WOULD MISS REILLY, WOULDN'T IT?
MR. SCHECK: WELL, THE PROBLEM IS, IS THAT YOU DON'T GET TO
SEE THE FULL PATTERN OF IT IF YOU JUST BREAK OUT THE OPERATORS IN
THAT FASHION BECAUSE IT DEALS WITH RUNS ON A PARTICULAR DAY. IF
THERE'S A CONTAMINANT, CONTAMINATION PROBLEM IN THE LAB ON A
PARTICULAR DAY OR THE RUN AS WE HAVE OUR RUN CHART --
THE COURT: MR. SCHECK, YOUR ALLEGATIONS ARE BASICALLY
THIS. THAT, ONE, THERE WAS CROSS-CONTAMINATION OF THE EVIDENCE,
AND THAT WAS SPECIFIC TO MR. YAMAUCHI, CORRECT?
MR. SCHECK: THAT IN -- YES.
THE COURT: OKAY.
MR. SCHECK: WELL, NO, NO, NO, NO. I'M SORRY. IT IS
SPECIFIC TO FUNG AND MAZZOLA.
THE COURT: YES. I MEAN, PUTTING ASIDE ALL OF AND FUNG AND
MAZZOLA BUSINESS.
MR. SCHECK: NO. BUT THEIR HANDLING OF THE EVIDENCE AND
LABORATORY IS CRITICAL.
THE COURT: I UNDERSTAND.
THEN THE NEXT POINT BEING THAT THE MANNER IN WHICH
THIS LAB WAS SET UP HAS SOME SIGNIFICANT PROBLEMS, THE USE OF
THIS PARTICULAR TYPE OF A HOOD, THE DRAFT HOOD. I DON'T KNOW
WHAT YOU CALL IT.
MR. SCHECK: LAMINAR FLOW.
THE COURT: THE NON-USABLE.
MR. SCHECK: RIGHT.
THE COURT: ALL RIGHT.
THEN YOU HAVE PROBLEMS WITH WHAT, AMPLICON
CONTAMINATION THAT YOU SEE EVIDENCE OF?
MR. SCHECK: WELL --
THE COURT: WHY CAN'T THAT ALL BE SPECIFIC TO MR. YAMAUCHI?
MR. SCHECK: BECAUSE IT ISN'T.
BECAUSE IF YOU HAVE AMPLICON CONTAMINATION, FOR
EXAMPLE, OR IF YOU HAVE SOME OTHER SOURCE OF GENOMIC DNA
CONTAMINATION, IT'S ALL THE SAME PEOPLE IN THE SAME WORK AREAS.
THEY CREATE THE AMPLICON CONTAMINATION. FOR EXAMPLE, IT GETS
INTO THE REAGENTS. IT GETS INTO VARIOUS DIFFERENT PLACES.
IT COULD BE ERIN REILLY DOING IT. THEN MR. YAMAUCHI
GOES IN THERE AND ALL OF MR. YAMAUCHI'S SAMPLES ARE CONTAMINATED
OR ALL OF HER SAMPLES WERE CONTAMINATED. IT'S INHERENT IN THE
PROCEDURE OF THE LABORATORY.
THE COURT: BUT IF IT'S INHERENT IN THE PROCEDURE, THEN IT
SHOULD APPLY TO MR. YAMAUCHI.
MR. SCHECK: WELL, IT WOULD APPLY TO THE WORK HE DID. BUT
IN ORDER FOR US TO DEMONSTRATE A PATTERN, A CHRONIC PATTERN OF
CONTAMINATION, WHICH WE OUGHT TO BE ENTITLED TO DEMONSTRATE, WE
HAVE TO SHOW DATA FROM THEIR VALIDATION STUDIES, JUST TYPING EVEN
KNOWN SAMPLES FROM A DATABASE THEY GET THIS KIND OF
CONTAMINATION.
THE TESTIMONY WILL BE THAT IN THIS KIND OF A
LABORATORY, WITH THE GREAT SENSITIVITY OF PCR, ONE DOESN'T KNOW
EXACTLY HOW IT HAPPENS.
ROBIN COTTON TESTIFIED THAT IN THE CACLD FALSE
POSITIVE THE SECOND TIME, THEY HAD A WITNESS IN THE ROOM LOOKING
AT ALL THE TRANSFERS. AND ALL THAT THEY CONCLUDED IN THE END WAS
THAT WHEN YOU HAD DEGRADED SPECIMEN WITH A HIGH CONCENTRATION
REFERENCE TYPE SPECIMEN, THAT'S HOW IT HAPPENED. THEREFORE, THEY
DIDN'T FOLLOW THAT PROCEDURE.
WHAT WE HAVE TO SHOW HERE IS THAT THERE'S CHRONIC AND
SUBSTANTIAL CONTAMINATION.
NOW, ONE THING I REALLY --
THE COURT: YOU CAN'T SHOW THAT BY EXAMINING ALL OF THE
VALIDATION WORK, ALL OF THE PROFICIENCY WORK AND ALL OF THE
CASEWORK OF THIS ONE OPERATOR OUT OF THESE HUNDREDS OF TESTS?
MR. SCHECK: WELL, NO, FOR THIS REASON.
AND THAT IS THAT THE WAY THIS ANALYSIS IS CONDUCTED,
PARTICULARLY WITH RESPECT TO THE CASEWORK, WHEN WE LOOKED AT THE
CASEWORK, YOU CAN'T FIND FROM THE EVIDENCE SAMPLES -- WE DON'T
KNOW WHO THE INDIVIDUALS ARE.
THE ONLY THING WE COULD LOOK AT IN CASEWORK WERE
POSITIVE CONTROLS, THAT IS THE SAMPLE THAT COMES WITH THE KIT,
THAT'S THE -- YOU KNOW IT'S DNA THAT HAS 1.1, 4 -- A NEGATIVE
CONTROL, EITHER THE AMPLIFICATION CONTROL OR AN EXTRACTION
CONTROL, AND A QUALITY ASSURANCE SAMPLE, KNOWN DNA FROM SOMEBODY.
AND YOU WILL LOOK AT A PARTICULAR -- YOU REMEMBER THE
CHART ON RUNS THAT WE SHOWED TO THE COURT ON FRIDAY. WELL, A RUN
WOULD BE ALL THE STRIPS DONE IN A PARTICULAR DAY.
IF THERE IS A 4 CONTAMINANT THAT SEEMS TO BE RUNNING
THROUGH THE LABORATORY FROM SOME SOURCE, BE IT AMPLICON
CARRY-OVER CONTAMINATION THAT'S IN THE REAGENTS OR ON SOMEBODY OR
SOME THING OR SOME SET OF INSTRUMENTS OR IF IT'S SOME GENOMIC
CONTAMINATION FROM SOME SOURCE, YOU CAN'T -- YOU HAVE TO BE ABLE
TO SEE THE WHOLE DAY TO SEE WHEN IT'S SHOWING UP, BOTH REILLY
SAMPLES AND YAMAUCHI SAMPLES OR KLAN SAMPLES, THE THREE PEOPLE
THAT WERE INVOLVED IN DOING TESTING.
IN ORDER TO GET A SENSE OF THE CHRONIC CONTAMINATION,
YOU HAVE TO SHOW THAT. AND IN ORDER -- AND ONE OF THE BIG POINTS
IS THAT, IT'S NOT GOING TO BE A TRIAL OF 180 SAMPLES.
MR. CLARKE IS GOING TO SAY, DR. GERDES, WHEN YOU SEE
A 1.1 HERE ON SOME OF THESE SAMPLES, IT COULD BE A CONTAMINANT OR
IT COULD BE DX SOMETIMES, RIGHT? THERE'S AN AMBIGUITY.
AND DR. GERDES IS GOING TO SAY, YEAH, FOR ALL OF
THOSE, SINCE THERE'S AMBIGUITY THERE, I THINK YOU HAVE TO REGARD
IT PRESUMPTIVELY AS AN CONTAMINANT. THEORY, IT COULD BE DX, BUT
I HAVE REASONS WHEN I LOOK AT THE NEGATIVE CONTROL HERE PERFORMED
BY ERIN REILLY IN THE MORNING AND IT CAME UP WITH A 1.1, I CAN
SAY THAT MR. YAMAUCHI'S SAMPLES OVER HERE WERE A 1.1 EMERGED, IT
MUST BE A 1.1 CONTAMINANT, NOT AN ARTIFACT BECAUSE IT SHOWED UP
ON THE NEGATIVE CONTROL. AND THAT'S WHAT WAS IN HIS REPORT.
IN ORDER TO MAKE AN ADEQUATE STATEMENT ABOUT
CONTAMINATION AND TO RESOLVE AMBIGUOUS SITUATIONS WITH THE 1.1'S
AND THE 1.3'S, YOU'VE GOT TO LOOK AT THE WHOLE RUN AND ALL OF THE
SAMPLES.
SO THERE'S NO EASY WAY OF BREAKING OUT THE DIFFERENT
SETS OF CONTROLS RUN ON A PARTICULAR DAY. WE HAVE TO SHOW THAT
ALL THE SAMPLES RUN ON A PARTICULAR DAY, THE SO-CALLED RUN, THEY
HAD CONTAMINANTS ON THEM. THAT FROM OUR POINT OF VIEW IS THE
KIND OF PROOF WE HAVE TO PUT ON, THAT IT IS ACCUMULATING, CHRONIC
AND SYSTEMIC AND IT RELATES BACK TO --
THE COURT: WELL, WHY CAN'T WE RESTRICT THAT THEN TO A
REASONABLE TIME PERIOD AROUND THE TESTS IN QUESTION?
MR. SCHECK: WELL, BECAUSE YOU CAN'T SHOW -- IT GOES BACK
TO THE AMPLICON CARRY-OVER CONTAMINATION ARGUMENT AND ALL THE
OTHER ARGUMENTS. HE HAVE TO BE ABLE TO SHOW --
THE COURT: BUT IF IT'S HERE, WHY WOULDN'T IT BE THERE
WITHIN THE 60-DAY WINDOW --
MR. SCHECK: WELL, IT'S THERE, BUT IT'S NOT -- BUT IT'S
VERY IMPORTANT TO SHOW THAT IT'S FROM THE BEGINNING, IT'S
CUMULATIVE, THEY NEVER GOT IT RIGHT AND IT CONTINUES ALL THE WAY
THROUGH.
AND FRANKLY, ONE OF THE THINGS THAT IS A BIT UNFAIR
IS, THEY DIDN'T RUN AS MANY SAMPLES IN JUNE AS THEY DID IN OTHER
MONTHS. AND WHEN YOU RUN MORE SAMPLES IN OTHER MONTHS AND YOU
GET MORE CONTAMINATION, IT'S MORE EVIDENT.
BECAUSE THE PHENOMENON HERE THAT WE'RE DEALING WITH
IS THAT IN ANY PARTICULAR EXPERIMENT OR SET OF EXPERIMENTS, SOME
CONTROLS MAY BE CLEAN, BUT THERE STILL MAY BE CONTAMINATION
THERE. THAT'S ONE OF THE BIG POINTS THAT WE HAVE TO MAKE, THAT
IN SOME RESPECTS, IT'S COUNTER-INTUITIVE AND THE PROSECUTION IS
TRYING TO HARP ON.
THEY'RE SAYING, WELL, JUST LOOK AT THE STRIPS HERE.
THEY'RE CLEAN. THEREFORE, THERE COULDN'T HAVE BEEN CONTAMINATION
WHEN IN FACT, THE CUMULATIVE DATA SHOWS THERE'S PLENTY OF
CONTAMINATION, THE KIND OF CONTAMINATION THAT SCIENTISTS WILL
TELL YOU IS NOT NECESSARILY REVEALED IN EVERY CASE.
NOW, IT'S -- WE REALLY HAVE A RIGHT I THINK TO PUT ON
THAT KIND OF SYSTEMIC PROOF. IT'S NOT GOING TO CAUSE ANY KIND OF
A MINI TRIAL. THE ISSUES HERE BETWEEN DR. GERDES AND THE
PROSECUTION EXPERTS ABOUT HOW YOU MAKE CERTAIN KINDS OF CALLS
QUALITATIVELY DO NOT INVOLVE 180 STRIPS OF CONTROVERSY. IT
INVOLVES SOME CONTROVERSY OVER HOW HE REGARDS FAINT DOTS BELOW
THE C, WHICH THEY'LL SAY YOU CAN IGNORE AND OUR SCIENTISTS SAY
IT'S CONTAMINATION AND YOU CAN'T IGNORE IT.
THAT'S THE NATURE OF THE DEBATE. IT'S GOING TO BE A
QUALITATIVE DEBATE ABOUT A CHRONIC, SYSTEMIC, SUBSTANTIAL
CONDITION, AND I REALLY THINK THAT WE HAVE TO BE ABLE TO PUT THAT
ON TO SHOW THE CONTEXT AND TO REBUT THE INFERENCE THAT THEIR
TECHNIQUES -- THEY TESTIFIED -- YAMAUCHI SAID, MATHESON SAID --
TRAINED BY ERIN REILLY -- SHE LOOKED AT IT. IF WE JUST DO THE
THINGS THE WAY WE DO THEM, THEN IT IS GOING TO BE OKAY. I CAN'T
EVEN SPECIFICALLY REMEMBER WHAT I DID. I CAN'T SPECIFICALLY
REMEMBER WHETHER OR NOT I CHANGED GLOVES. IT'S NOT OUR POLICY TO
CHANGE GLOVES BETWEEN EACH SAMPLE. IT'S NOT OUR POLICY TO SCRAPE
THE TUBE AND CREATE THE AEROSOL.
THAT'S THE KIND OF SAMPLE HANDLING TECHNIQUES WE
SHOULD BE ALLOWED TO SHOW BY LOOKING AT THE BROAD RANGE OF DATA
PRODUCING CONTAMINATION.
THEY'RE SAYING, WELL, MAYBE THEY'RE NOT THE BEST
TECHNIQUES IN THE WORLD SAYS GARY SIMS, BUT IT COULDN'T HAVE MADE
A DIFFERENCE, WOULDN'T MAKE A DIFFERENCE IN GENERAL.
THIS DATA, THE LONG-TERM CHRONIC AND SYSTEMIC
CONTAMINATION DATA SHOWS THAT THESE SYSTEMIC TECHNIQUES WERE
CAUSING SYSTEMIC CONTAMINATION.
THE COURT: BUT, COUNSEL, IF IT'S CHRONIC CONTAMINATION, IT
WOULD SHOW UP WITHIN A REASONABLE PERIOD, WINDOW, AROUND THE
TESTING.
MR. SCHECK: WELL, IT SHOWS UP, BUT IT DOESN'T SHOW UP
BECAUSE THEY DIDN'T DO AS MANY TEST STRIPS IN THAT --
THE COURT: 30 DAYS BEFORE AND 30 DAYS AFTER.
MR. SCHECK: IT SHOWS UP, BUT DOESN'T SHOW UP, BECAUSE THEY
DIDN'T DO AS MANY STRIPS, AS DRAMATICALLY AS IF YOU HAD
CONTAMINANTS FLOATING AROUND.
THE COURT: WE'RE NOT HERE FOR DRAMA, MR. SCHECK.
MR. SCHECK: NO. WELL, DRAMATICALLY AS SUBSTANTIVELY TO
SHOW HOW CHRONIC THE PROBLEM IS. IT'S NOT ENOUGH JUST TO SAY THAT
WE SEE SOME EVIDENCE OF IT BETWEEN MAY AND JULY. IT'S CRITICAL
WHEN THE NATURE OF THE CONTAMINATION -- THE EXPERT TESTIMONY WILL
BE, ONCE YOU HAVE A CONTAMINATION BUILDUP, IT'S CHRONIC AND
SUBSTANTIAL.
THE COURT: MR. SCHECK, I'VE GOT TWO PROBLEMS WITH YOUR
ARGUMENT. THE SCOPE OF THE INQUIRY THAT YOU ARE GOING INTO --
MR. SCHECK: I'M SORRY?
THE COURT: -- AND THE FACT THAT IT'S NOT SPECIFIC TO THE
PERSON WHO'S TESTIFIED. THAT'S THE PROBLEM I'VE GOT.
NOW, HOW DO YOU SOLVE THAT FOR ME?
MR. SCHECK: WELL --
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: NO. 1, THE LARGER WINDOW. THE LARGER WINDOW
IS NECESSARY, A, TO SHOW HOW CONTAMINATION LEADS TO ERRORS. THE
TYPING ERRORS ARE OUTSIDE THE WINDOW ON EARLIER SAMPLES,
PROFICIENCY SAMPLES, VALIDATION SAMPLES. SO WE NEEDED TO SHOW
THAT.
WE NEED TO SHOW A LARGER WINDOW BECAUSE --
THE COURT: HOW MUCH LARGER?
MR. SCHECK: WE NEED TO SHOW THE PATTERN IS FROM THE DAY
THE LABORATORY OPENED THE DOORS THROUGH AUGUST. AND THE REASON
WE NEED TO SHOW IT HAS TO -- GOES TO THE PARTICULAR NATURE OF A
PCR LABORATORY.
THAT IS, CONTAMINATION IS A PROBLEM, IS A CUMULATIVE
ONE. IF IT FIRST OCCURS, IT BUILDS UP, IT BECOMES CHRONIC AND
SUBSTANTIAL AND YOU CAN'T GET RID OF IT.
THE FAILURE TO RECOGNIZE THAT THEY HAD THIS PROBLEM
AND THE FAILURE TO GET RID OF IT, WHICH WE CAN ONLY DEMONSTRATE
IF WE GO INTO THE LARGER WINDOW, IS ESSENTIAL TO PROVING THAT IT
WAS A SERIOUS PROBLEM IN JUNE -- MAY, JUNE AND JULY OF 1994.
UNLESS WE DO THAT, WE CAN'T PUT ON ADEQUATE PROOF TO
SUBSTANTIATE THIS CONTENTION. AND WE OUGHT TO BE -- IT'S NOT
LIKE A BREATHALYZER.
THE COURT: ALL RIGHT.
LET'S FALL BACK TO PLAN B.
MR. SCHECK: WHEN YOU SAY FALL BACK TO PLAN B --
THE COURT: WHAT'S YOUR PLAN B? WHAT'S YOUR NEXT
ALTERNATIVE AS FAR AS SCOPE IS CONCERNED?
MR. SCHECK: I DON'T HAVE ANOTHER ALTERNATIVE IN TERMS OF
SHOWING THOSE CHARTS. I HAVE TO SHOW THE CHARTS.
I MEAN, YOU WANT ME TO REVISE THESE CHARTS NOT FROM
MAY, BUT STARTING -- I MEAN IT'S -- IN TERMS OF THE NATURE OF THE
PROBLEM WE'RE SHOWING.
THE COURT: ALL RIGHT.
WHY DON'T YOU CONTEMPLATE, YOU AND YOUR COLLEAGUES
CONTEMPLATE THAT QUESTION.
TELL ME WHY I SHOULD ALLOW IT BEYOND MR. YAMAUCHI.
MR. SCHECK: WELL, THE OPERATOR PROBLEM.
THE COURT: CORRECT.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: IT'S REALLY THE SAME ANSWER. AND THAT IS THAT
THE CAUSES OF CONTAMINATION ARE A LABORATORY WIDE CAUSES. THE
ADEQUACY OF THE CONTROLS ARE NOT UNIQUE TO THE OPERATOR. THE
ADEQUACY OF THE CONTROLS -- AND THAT'S WHAT THIS DATA IS GOING TO
SHOW -- THAT THE NEGATIVE CONTROLS ARE NOT ADEQUATE TO PICK UP
THE EXTENT OF CONTAMINATION.
THAT'S WHY WE HAVE TO SHOW THE LARGE WINDOW AND
THAT'S WHY WE HAVE TO SHOW DATA FROM MORE THAN ONE OPERATOR. YOU
CAN'T SHOW THE EXTENT OF CONTAMINATION OF THE LABORATORY BY
LOOKING AT JUST ONE SET OF CONTROLS DONE BY ONE PARTICULAR
OPERATOR.
THE COURT: BUT THEN MR. CLARKE THEN HAS TO COME BACK AND
SHOW ALL OF THESE THINGS AND SHOW A CONTRARY INTERPRETATION,
DOESN'T HE?
MR. SCHECK: NO.
THE COURT: WHY NOT?
MR. SCHECK: WELL, IT'S NOT REALLY THE THRUST OF HIS
ARGUMENT. THE THRUST OF HIS ARGUMENT IS NOT --
THE COURT: I THOUGHT THAT'S WHAT I HEARD.
MR. SCHECK: WELL, I UNDERSTAND THAT. BUT HE IS NOT GOING
TO SAY, OH, ON EACH ONE OF THESE 180 STRIPS -- EVEN IN HIS PAPER,
HE ADMITS THAT THERE'S CONTAMINATION HERE. HE'S JUST -- IN HIS
ARGUMENT HE SAID, WELL, LOOK, YOU SEE, THE 1.3 NEGATIVE CONTROL
SHOWED CONTAMINATION. SO THE CONTROL WORKED.
OUR ANALYST IS GOING TO SAY THAT 1.3 IN THE NEGATIVE
CONTROL SHOWS CONTAMINATION AND WHAT YOU DID ABOUT -- AND YOU
DIDN'T DO ENOUGH ABOUT IT. IT'S NOT ENOUGH TO NOTE THAT --
90 PERCENT OF THESE CONTAMINANT DOTS THEY WROTE DOWN.
THEY WROTE 1.2, 1.1, WEAK 3. THEY SAY, WELL, WE WROTE IT DOWN.
THAT'S ENOUGH.
OUR EXPERTS ARE SAYING, NO. THE FACT THAT THAT 3 IS
THERE, THAT'S ONLY THE BEGINNING OF THE PROBLEM. WHAT YOU HAVE
TO DO WITH THE LABORATORY ONCE YOU HAVE THIS KIND OF
CONTAMINATION IS SHUT THE PLACE DOWN. YOU HAVE TO CHANGE ALL THE
REAGENTS. YOU HAVE TO SCOUR THE PLACE. YOU HAVE TO GO BACK OVER
ALL YOUR PROCEDURES. YOU HAVE TO CLEAN HOUSE FROM A TO Z.
THAT'S WHAT HAPPENS. OTHERWISE, YOU'RE GOING TO HAVE
THIS AMPLICON BUILDUP WHERE YOU'RE GOING TO CONTINUE FOLLOWING
THE SAME POOR PROCEDURES AND THE CONTAMINATION IS GOING TO BECOME
CUMULATIVE AND WORSE.
THAT'S WHAT MAKES IT DIFFERENT FROM OTHER KINDS OF
TECHNOLOGY. THAT'S WHAT ALL THE READINGS THAT WE WENT OVER WITH
THE COURT AND SUBMITTED IN THE BRIEFS EARLIER, THAT'S WHAT THE
NATIONAL RESEARCH COUNCIL HAS TALKED ABOUT AS THE SPECIAL DANGERS
OF PCR, THAT YOU GET A GENERAL CONTAMINATION, A CHRONIC AND
SUBSTANTIAL BUILDUP.
WE NEED THAT WINDOW TO SHOW THIS KIND OF CHRONIC AND
SUBSTANTIAL CONTAMINATION OF THE LAB. IT IS NOT OPERATOR
SPECIFIC. IT IS SYSTEMIC. AND YOU CAN'T GET AN ADEQUATE PICTURE
OF IT, IT'S IN FACT A MISLEADING PICTURE OF IT IF YOU ONLY SHOW
DATA FROM ONE PARTICULAR ANALYST.
YOU HAVE TO SHOW THE OVERALL -- HE LOOKED, HE WENT
THROUGH THE CASEWORK IRRESPECTIVE OF WHO DID IT AND WAS LOOKING
AT HOW MANY TIMES YOU GOT A CONTAMINANT ON THE CONTROLS. AND
UNLESS YOU SEE THAT GENERAL PATTERN, YOU DON'T HAVE A NOTION OF
HOW SERIOUS THE CONTAMINATION PROBLEM IS.
THE COURT: ALL RIGHT.
THANK YOU.
MR. SCHECK: THE FINAL POINT I COULD MAKE, YOUR HONOR, IS
THAT THIS IS THE OPINION OF DR. GERDES AND DR. MULLIS ABOUT A --
THIS KIND OF PECULIAR TECHNOLOGY, PCR TESTING, WHICH IS
SENSITIVE, WHICH HAS -- I DON'T THINK THERE CAN BE ANY DISPUTE --
THIS SORT OF CUMULATIVE BUILDUP IN TERMS OF CONTAMINATION. IT IS
THEIR JUDGMENT.
WHAT THE PROSECUTION IS ASKING YOU TO DO IS -- BASED
ON THEIR BALD ASSERTIONS HERE, IS TO LIMIT THE SCOPE OF THE
PROOF. THEY'RE ASKING YOU TO MAKE A SCIENTIFIC JUDGMENT FRANKLY
IN THIS CASE.
THAT IS WHAT OUR EXPERTS BELIEVE. THEY BELIEVE THAT
WHOLE WINDOW IS THE BASIS OF THEIR CONCLUSIONS TO SHOW THAT THE
CONTROLS ARE INADEQUATE TO PICK UP CONTAMINATION IN ANY
PARTICULAR CASE, THAT THIS LAB WAS PECULIARLY TERRIBLE, IT SHOULD
HAVE BEEN SHUT DOWN. THE TESTIMONY WOULD BE SHUT DOWN IF IT WERE
ANY OTHER KIND -- BY ANY OTHER NORMAL LABORATORY STANDARDS
BECAUSE OF THAT SYSTEMIC, CHRONIC, UNCORRECTED CONTAMINATION.
THAT'S THEIR SCIENTIFIC JUDGMENT. THAT'S THE THRUST
OF THEIR OPINION. AND IT SEEMS TO ME THAT IT'S UNFAIR TO
RESTRICT IT, PARTICULARLY IF THE TIME IN QUESTION IS NOT THAT
GREAT.
THE FACT IS, THE PROSECUTION TOOK MANY, MANY WEEKS
AND MANY, MANY MONTHS TO PUT ON THIS DNA EVIDENCE, TO EDUCATE THE
JURY STEP BY STEP. WE OUGHT TO HAVE THE RIGHT TO PRESENT THE
PROBLEM OF CONTAMINATION IN ITS SYSTEMIC, CHRONIC AND REALISTIC
FORM.
IF THE PROSECUTION WANTS TO COME IN AND CROSS-EXAMINE
THEM AT SOME LENGTH, WELL, YOU KNOW -- IT'S UNFAIR TO SAY, YOU
CAN PRESENT YOUR CASE CLEARLY AND MAKE THE POINTS CLEARLY HERE
AND THE PROSECUTION WOULD TAKE A LONG TIME -- BECAUSE IT WOULD BE
THEIR STRATEGY PROBABLY TO TAKE A LONG TIME AND NOT TO DEAL WITH
THE THRUST OF THE ISSUE.
THE COURT: NO. BUT IF THEY WERE SMART, THEY WOULD HANDLE
IT WITH 20 QUESTIONS AND BAIL OUT.
MR. SCHECK: WELL --
THE COURT: AND MAKE -- AND BELITTLE IT AND SAY, DR.
GERDES, YOU'RE A PROFESSIONAL WITNESS, YOU COME IN AND THIS IS
YOUR JOB TO DO THIS, RIGHT, YOU'VE TESTIFIED TO THE SAME THING
30, 40 TIMES, CORRECT, PEOPLE VERSUS SO AND SO AND GO THROUGH ALL
FOR THE DEFENSE, BLAH, BLAH, BLAH, YOU'RE JUST A --
MR. SCHECK: WELL --
THE COURT: -- THANK YOU VERY MUCH, GOODBYE AND JUST
DISMISS IT. THAT'S ONE TACTIC.
MR. SCHECK: THAT WOULD BE ONE TACTIC.
THE COURT: ALL RIGHT.
ANOTHER FASCINATING DAY.
ALL RIGHT.
THIS IS A MOTION THAT THE COURT TAKES AS A MOTION
UNDER 352. AND I AGREE WITH YOU, MR. SCHECK, THAT THIS IS UNLIKE
SINGLE TYPE TECHNOLOGY LIKE GAS CHROMATOGRAPH EVIDENCE WHERE IT'S
A RELATIVELY SIMPLE MACHINE AND IT'S SOMETHING THAT EITHER WORKS
OR DOESN'T WORK.
PCR BASED DNA TESTING IS A VERY SOPHISTICATED AND IS
A TECHNIQUE AND IS SUBJECT TO A LOT OF PROBLEMS, NOT THE LEAST OF
WHICH IS INTERPRETATION OF RESULTS AND EVALUATION OF
CONTAMINATION.
WE ALSO HAVE THE OTHER PROBLEM THAT THE TECHNOLOGY
ITSELF INVOLVES THE MULTIPLICATION OF THE SAMPLE ITSELF, AND THAT
TECHNOLOGY ITSELF LENDS ITSELF TO CONTAMINATION.
I'M TROUBLED BY THE NON-OPERATOR SPECIFIC NATURE OF
YOUR OFFER, MR. SCHECK, AND I'M TROUBLED BY THE BROADNESS OF THE
WINDOW.
I'M GOING TO ALLOW YOU TO PRESENT DR. GERDES
REGARDING THE SYSTEMIC PROBLEMS INHERENT WITH PCR. I'M GOING TO
ALLOW YOU SOME LATITUDE GOING BEYOND MR. YAMAUCHI AS WELL TO SHOW
OTHER EXAMPLES.
I ACCEPT YOUR REPRESENTATION THAT YOU CAN PRESENT
THIS IN SIX COURT HOURS. I AGREE WITH YOU THAT THE PROSECUTION
HAS HAD SIGNIFICANT AMOUNT OF TIME TO PRESENT THEIR DNA CASE, AND
I THINK YOUR REQUEST IN THAT RESPECT IS NOT UNREASONABLE GIVEN
THE NATURE OF WHAT I HAVE LEARNED ABOUT PCR BASED DNA TESTING.
BUT I TAKE YOU AT YOUR WORD THAT YOU'RE GOING TO BE
PRECISE AND SUCCINCT IN THIS MATTER, KEEPING ALSO IN MIND THAT
WE'RE DEALING WITH A JURY THAT HAS TO UNDERSTAND IT TO BELIEVE IT
AND THAT THE CROSS-EXAMINATION WILL GO INTO THE FACT THAT IT'S
NON-OPERATOR SPECIFIC, THAT WE HAVE A WIDE WINDOW RELEVANT TO
THIS CASE THAT ISN'T -- DOESN'T SHOW THIS CONTAMINATION, THE
OTHER ITEMS THAT I MENTIONED, WHICH IS WHAT I WOULD DO IF I WERE
ON THEIR SIDE AND BAIL OUT.
ALL RIGHT.
ARE WE CLEAR?
MR. SCHECK: YES.
MR. CLARKE: FOR CLARIFICATION, YOUR HONOR?
THE COURT: YES.
MR. CLARKE: THE DEFENSE HAS THE RIGHT TO PUT ON THIS
DEFENSE WINDOW?
THE COURT: BUT WITH A TIME LIMITATION AND WITH THE
UNDERSTANDING THAT I'M GIVING THEM COUNSELING THAT -- I'M
ALLOWING THEM TO GO BEYOND THE SINGLE OPERATOR, BUT NOT A LOT.
MR. CLARKE: WELL, I THINK WHAT WE'LL SEE IS --
THE COURT: I UNDERSTAND WE'RE -- NO. WE'RE GOING TO SEE
THE BOARDS. I UNDERSTAND THAT. I UNDERSTAND THAT. BUT WE HAVE
A PARTICULAR ISSUE, SOPHISTICATED SCIENTIFIC ISSUE WITH REGARDS
TO THIS PARTICULAR TYPE OF TESTING. I THINK THEY'RE ENTITLED TO
SHOW THEIR OPINION AS TO WHAT IT IS.
AND YOU CAN COME BACK WITH THE FACT THE CONTROLS
WORKED AND THAT THERE'S NO SYSTEMIC ERROR APPARENT WITHIN THE
WINDOW REGARDING THIS TESTING AND THAT PARTICULAR CARE WAS MADE
WITH REGARDS TO THESE TESTS AND THEY'RE CORROBORATED BY ALL THE
OTHER TEST RESULTS AND THE RFLP RESULTS AND ALL OF THAT.
YOU CAN ASK DR. GERDES, DID YOU TAKE INTO
CONSIDERATION THE FACT THAT THE RFLP TESTING DONE BY CELLMARK,
WHICH IS A MUCH MORE SOPHISTICATED -- MUCH MORE DEFINITIVE TEST
NOT SUBJECT TO THESE PROBLEMS, GAVE US AN EVEN MORE PRECISE
RESULT WHICH POINTS EVEN MORE DIRECTLY EITHER THIS WAY OR THAT.
SEE, I COULD DO THIS IN 20 MINUTES.
MR. SCHECK: I NOTICE THAT.
MR. CLARK: I'M WRITING DOWN THE QUESTIONS.
MR. SCHECK: WE HAVE AN ANSWER THOUGH.
THE COURT: AND I HAVEN'T EVEN THOUGHT ABOUT THE FIRST
AMENDMENT PROBLEMS WE HAVE TO WORRY ABOUT TODAY.
ALL RIGHT.
LET'S TAKE 10 MINUTES FOR THE COURT REPORTER, AND
THEN WE'LL GET TO THE BOSCO MATTER.
ALL RIGHT.
THANK YOU, COUNSEL.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
BACK ON THE RECORD IN THE SIMPSON MATTER.
DEFENDANT IS AGAIN PRESENT BEFORE THE COURT. THE
JURY IS NOT PRESENT.
AND WE NOW HAVE PRESENT WITH US MR. SULLIVAN.
GOOD AFTERNOON, MR. SULLIVAN.
MR. SULLIVAN: GOOD AFTERNOON, YOUR HONOR.
MICHAEL SULLIVAN ON BEHALF OF THE REPORTER JOE BOSCO.
I'M A MEMBER OF THE BAR OF WASHINGTON D.C. YOUR HONOR, I WOULD
REQUEST PERMISSION TO BE HEARD ON THIS MATTER. I'M HERE WITH A
MEMBER OF OUR CALIFORNIA OFFICE, MISS OSINSKI, WHO APPEARED
BEFORE.
THE COURT: RIGHT. YOUR APPLICATION TO APPEAR BEFORE THE
COURT PRO HAC VICE HAS BEEN FILED AND APPROVED BY THE COURT.
MR. SULLIVAN: THANK YOU, YOUR HONOR.
YOUR HONOR, I APOLOGIZE THAT THIS MATTER HAS BEEN
HEARD IN SOMEWHAT OF A PIECE-MEAL FASHION. ON OUR WAY TO THE
COURT THIS AFTERNOON, WE HEARD PORTIONS OF THE ARGUMENT MADE BY
BOTH THE PROSECUTION AND THE DEFENSE. AND SO WHAT I WOULD
PROPOSE TO DO RATHER THAN TO REHASH AND WASTE THE COURT'S TIME,
I WOULD LIKE TO MAKE A FEW BRIEF POINTS AND RESPOND TO SPECIFIC
POINTS RAISED BY THE PROSECUTION AND THE DEFENSE.
FIRST THING, THE PROSECUTION MADE AN ARGUMENT THAT
THE SHIELD LAW MAY BE WAIVED IF MR. BOSCO TAKES THE STAND AND
TESTIFIES STRICTLY TO PUBLISHED INFORMATION. WE FIND THAT
ARGUMENT TO BE, A, WITHOUT SUPPORT AND, B, YOUR HONOR, TO BE
EXTREMELY TROUBLING.
THERE'S NO SUPPORT FOR THAT. THEY CAN'T CITE A
SINGLE CALIFORNIA SUPREME COURT CASE THAT TALKS OF WAIVER IN THAT
SENSE. INDEED, IT SIMPLY CAN NOT BE THE CASE, BECAUSE IF THAT
WERE THE LAW, IT WOULD HAVE DISARRAYED THE SHIELD LAW ENTIRELY.
IN FACT, IF YOU THINK ABOUT IT, WHAT IT WOULD DO IS,
IT WOULD PENALIZE REPORTERS WHO ARE WILLING TO TAKE THE STAND AND
DO THEIR CIVIL DUTY AND TESTIFY TO MATTERS THAT ARE WITHIN THE
FOUR CORNERS OF THE PUBLICATION, WHAT MATERIAL THEY'VE PUBLISHED,
WHICH IS NOT PROTECTED BY THE SHIELD LAW. SO REPORTERS WHO ARE
WILLING TO DO THAT, THEY WOULD THEN BE PENALIZED. THAT WOULD BE
ENTIRELY UNFOUNDED AND WE SUBMIT WITH NO BASIS OR FOUNDATION.
SECOND POINT, YOUR HONOR, IS, TO THE EXTENT THAT THE
PROSECUTION COMES IN AND THEY SAY THAT THEY THINK THEY WANT TO BE
ABLE TO GO AFTER INFORMATION THAT IS BEYOND WHAT WAS PUBLISHED
WITHIN THE FOUR CORNERS OF THAT ARTICLE, WE SUBMIT THAT THEY
DON'T HAVE THE SAME CLAIM TO DO THAT EVEN AS THE DEFENDANTS DO.
IF YOU LOOK AT THE CASES THAT HAVE BEEN DECIDED BY
THE CALIFORNIA SUPREME COURT, YOU'LL SEE THAT WHEN THE COURT HAS
SAID THAT THE INTEREST PROTECTED BY THE SHIELD LAW MUST YIELD,
IT'S IN CASES WHERE THE PERSON MAKING THAT CLAIM IS THE
DEFENDANT. AND OBVIOUSLY, THE DEFENDANT HAS A CONSTITUTIONAL
SIXTH AMENDMENT RIGHT TO A FAIR TRIAL, AND THAT IS WHAT IN AN
APPROPRIATE CASE MAY FORCE THE INTEREST PROTECTED BY THE SHIELD
LAW TO YIELD.
THE PROSECUTION ON THE OTHER HAND, YOUR HONOR, THEY
HAVE NO COUNTERVAILING CONSTITUTIONAL ARGUMENT. SO THEY -- THIS
ARGUMENT THAT THEY CAN COME IN AND TRY TO GET BEYOND WHAT'S
PROTECTED BY THE SHIELD LAW IS SIMPLY NOT WELL-FOUNDED.
MY THIRD POINT IS, WE NEED TO FOCUS ON WHAT IT IS
THAT THE SHIELD LAW PROTECTS AND WHAT THEY CAN PROPERLY GET. AND
WHAT THEY CAN GET UNDER THE SHIELD LAW, MR. BOSCO CAN BE REQUIRED
TO TESTIFY TO WHAT IS WITHIN THE FOUR CORNERS OF HIS ARTICLE,
WHAT WAS PUBLISHED.
THAT PUBLISHED INFORMATION, HE IS HERE TO VOUCH FOR.
HE WILL TELL YOU THAT IS A TRUTHFUL AND ACCURATE REPORT. HE'S
PREPARED TO DO THAT. TO THE EXTENT THEY SEEK TO GO BEYOND THAT,
THAT IS IMPROPER AND THAT'S WHERE THE SHIELD LAW DRAWS THE LINE
AND THAT'S WHERE THE CURTAIN COMES DOWN.
IN FACT, IF YOUR HONOR LOOKS AT THE PLAYBOY CASE, IT
BECOMES CLEAR THAT WHAT THE CALIFORNIA SUPREME COURT SAID IS,
THEY SAY, WHEN WE TALK OF UNPUBLISHED INFORMATION, THAT INCLUDES
ALL FACTUAL INFORMATION WITHIN THE REPORTER'S KNOWLEDGE WHETHER
IT'S FROM HIS SOURCE MATERIAL OR HIS MEMORY.
OKAY.
THAT'S BASICALLY WHAT THEY'RE TALKING ABOUT.
SO WHAT THAT MEANS IN THIS CASE, TO PROVIDE A
CONCRETE EXAMPLE, THE PENTHOUSE ARTICLE THAT IS THE SUBJECT OF
THIS WHOLE MOTION HAS THIS BUSINESS IN THERE ABOUT THE DNA SOCK
MATCH STORY, AND THAT'S WHAT WE'VE BEEN TOLD THE DEFENDANT IS
MORE INTERESTED IN. IT GOES ON AND TALKS ABOUT INFORMATION
PROVIDED BY A CERTAIN POLICE OFFICER, AND THEN IT SAYS:
"A CERTAIN POLICE OFFICER WHOSE LEAKS HAD HITHERTO BEEN
MOSTLY ACCURATE AND OFFERED WITH CORROBORATION STARTING CALLING
JOURNALISTS WITH THE STORY THAT THE BLOOD ON THE SOCKS FOUND IN
O.J.'S BEDROOM WAS A DNA MATCH WITH NICOLE'S. THIS TIME,
HOWEVER, THE OFFICER OFFERED NO CORROBORATION AND BECAME ANGRY
AND DEFENSIVE WHEN ASKED."
SO LET'S TAKE, FOR EXAMPLE, THAT WHAT THEY WANT TO
ASK IS WELL, HOW ANGRY DID HE GET, RIGHT, WHAT DO YOU MEAN HE
OFFERED NO CORROBORATION THIS TIME, HOW LONG WAS THE
CONVERSATION YOU HAD WITH HIM.
QUESTIONS OF THAT NATURE, THAT'S BEYOND WHAT IS
PUBLISHED INFORMATION. THAT'S NOT WITHIN THE FOUR CORNERS OF THE
PIECE AND THAT WOULD BE PROTECTED BY THE SHIELD LAW.
SIMILARLY, QUESTIONS LIKE, HOW DID YOU RECOGNIZE THE
SOURCE'S VOICE, QUESTIONS LIKE THAT, YOUR HONOR, WE SUBMIT ARE
NOT PROPER UNDER THE SHIELD LAW.
MY LAST POINT, THE PROSECUTION MADE THE POINT THAT
THIS WHOLE ISSUE OF THIS TESTIMONY PRESENTS THORNY THRESHOLD
ISSUES GOING TO MATTERS SUCH AS RELEVANCE, HEARSAY AND
AUTHENTICATION.
ON THAT SCORE, WE WHOLEHEARTEDLY AGREE WITH THE
PROSECUTION AND WE WOULD SUBMIT THAT THAT SUGGESTS EXACTLY THE
TYPE OF TOUGH QUESTIONS THAT REQUIRE A PROTECTIVE ORDER TO
PROPERLY RESTRICT THE SCOPE OF MR. BOSCO'S EXAMINATION BEFORE HE
TESTIFIES IN FRONT OF A JURY. THAT'S WHY WE THINK IT'S
APPROPRIATE TO FASHION A PROTECTIVE ORDER SO THAT BOTH PARTIES,
BOTH THE PROSECUTION AND THE DEFENSE, KNOW PRECISELY WHAT IT IS
THEY CAN GET INTO AND WHAT IT IS THEY CANNOT.
THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
THANK YOU, MR. SULLIVAN.
ALL RIGHT.
COUNSEL, I'VE HEARD THE ARGUMENTS OF COUNSEL FOR MR.
BOSCO AND FOR MR. SIMPSON AND THE PROSECUTION. I THINK I'VE
PREVIOUSLY INDICATED THAT WHAT I WAS INCLINED TO DO AT THIS POINT
IS ALLOW THE DEFENSE TO CALL MR. BOSCO FOR THE PURPOSES OF THIS
402 HEARING TO ESTABLISH THE FOUNDATION, ONE, THAT HE -- THE
NATURE OF HIS EMPLOYMENT, 2, THE -- HIS AUTHORSHIP OF THE ARTICLE
IN PARTICULAR, 3, THAT HE DID IN FACT REPORT THE ITEMS THAT ARE
CONTAINED IN THOSE TWO RELEVANT PARAGRAPHS.
AND THEN I ASSUME SOMEBODY WILL ASK HIM TO DIVULGE
THE NAME OF THAT OFFICER, AND THEN HE WILL INVOKE THE SHIELD LAW.
AT THAT POINT, I WILL THEN RECESS TO CONTEMPLATE THE DELANEY
ISSUES THAT ARE SIMILAR TO THE SAVAGE MATTER AS WELL, WHICH I
HAVE NOT YET DETERMINED.
BUT I THINK THE -- BOTH SIDES ARE ENTITLED TO
CROSS-EXAMINE MR. BOSCO AS TO THE FOUNDATION FOR HIS ABILITY TO
CLAIM THE SHIELD LAW PROTECTION. AND THAT'S THE EXTENT OF WHAT
I'M WILLING TO DO THIS AFTERNOON.
ALL RIGHT.
ARE WE CLEAR ON THAT, HAVING HAD OUR EXPERIENCE WITH
MISS SAVAGE YESTERDAY?
MR. SHAPIRO: YES, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. GOLDBERG?
MR. GOLDBERG: YES.
THE COURT: ALL RIGHT.
MR. SULLIVAN, ARE YOU FAMILIAR WITH WHAT OCCURRED
YESTERDAY?
MR. SULLIVAN: BASICALLY I AM, YOUR HONOR.
THE COURT: ALL RIGHT.
THOSE ARE THE PERIMETERS OF WHAT I'M WILLING TO DO
THIS AFTERNOON.
MR. SHAPIRO: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
ARE YOU READY TO PROCEED?
MR. SHAPIRO: YES, I AM, YOUR HONOR.
THE COURT: ALL RIGHT.
IS MR. BOSCO AVAILABLE?
MR. SHAPIRO: YES, HE IS, YOUR HONOR.
WE CALL JOSEPH BOSCO.
MR. SULLIVAN: YOUR HONOR, MAY I BE PRESENT AT HIS SIDE?
THE COURT: YOU MAY.
AND, MR. SULLIVAN, I'LL ALLOW YOU TO INTERPOSE -- TO
EITHER CONFER WITH YOUR CLIENT AT YOUR REQUEST OR TO INTERPOSE
OBJECTIONS AS TO SUBJECT MATTERS YOU FEEL GO BEYOND THE SCOPE OF
THE COURT'S ORDER.
MR. SULLIVAN: THANK YOU, YOUR HONOR.
JOSEPH BOSCO (402),
CALLED AS A WITNESS BY THE DEFENDANT, PURSUANT TO EVIDENCE CODE
402, WAS SWORN AND TESTIFIED AS FOLLOWS:
THE CLERK: RAISE YOUR RIGHT HAND, PLEASE.
YOU DO SOLEMNLY SWEAR THAT THE TESTIMONY YOU MAY GIVE
IN THE CAUSE NOW PENDING BEFORE THIS COURT SHALL BE THE TRUTH,
THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?
THE WITNESS: YES, I DO.
THE CLERK: PLEASE HAVE A SEAT IN THE WITNESS STAND AND
STATE AND SPELL YOUR FIRST AND LAST NAMES FOR THE RECORD.
THE WITNESS: MY NAME IS JOSEPH BOSCO, J-O-S-E-P-H
B-O-S-C-O.
THE CLERK: THANK YOU.
THE WITNESS: THANK YOU.
DIRECT EXAMINATION
BY MR. SHAPIRO:
Q GOOD AFTERNOON, MR. BOSCO.
A GOOD AFTERNOON, SIR.
Q HAVE WE HAD A CONVERSATION LAST WEEK REGARDING THE
ISSUES FOR WHICH YOU'RE BEING CALLED TO TESTIFY?
A YES, SIR.
Q AND DID I DISCUSS WITH YOU THE FACT THAT I WAS
INTERESTED IN HAVING YOU AS A WITNESS IN THIS CASE?
MR. GOLDBERG: NOT RELEVANT.
THE COURT: OVERRULED.
THE WITNESS: YES, SIR, YOU DID.
Q BY MR. SHAPIRO: AND DID I ASK YOU IF YOU WOULD
ACCEPT A SUBPOENA TO APPEAR ON MONDAY?
A YES, SIR.
Q AND DID I SERVE YOU WITH A SUBPOENA ON MONDAY?
A YES, SIR.
Q WHAT IS YOUR PROFESSION, SIR?
A I'M A FULL LANCE -- FULL-TIME FREE-LANCE AUTHOR OF
BOOKS AND OCCASIONALLY MAGAZINE ARTICLES.
Q AND FOR HOW LONG HAVE YOU HAD THAT PROFESSION?
A WELL, I'VE BEEN WRITING PROFESSIONALLY SINCE ABOUT
THE AGE OF 18, BUT CONTINUOUSLY ONLY AS A WRITER SINCE 1982.
I'VE BEEN FORTUNATE TO MAKE MY LIVING ONLY AS A WRITER SINCE
1982.
Q ARE YOU A MEMBER OF ANY PROFESSIONAL JOURNALISTIC
SOCIETIES OR ORGANIZATIONS?
A YES, SIR, I AM. JUST A FEW.
I'M A MEMBER OF PEN, WHICH IS -- I'M MOST PROUD OF.
I'M ALSO A MEMBER OF THE AMERICAN SOCIETY OF JOURNALISTS AND
AUTHORS. I AM A -- OH, AT THE MOMENT HERE -- THEY'RE IN MY
DECLARATION, MR. SHAPIRO. I'VE FORGOTTEN -- THE NATIONAL WRITERS
-- WHAT THE HECK IS -- I THINK PEN --
Q TAKE YOUR TIME AND REFRESH YOUR MEMORY FROM YOUR
REPORT.
A YES. THIS IS NOT MY CUSTOMARY POSITION.
YES. IF I MAY.
OH, OF COURSE, HOW COULD I FORGET. THE AUTHORS GUILD
WHICH IS -- I'M ALSO PROUD OF.
Q AND YOU'RE FAMILIAR WITH THE TRIAL OF THE MATTER OF
PEOPLE VERSUS O.J. SIMPSON?
A YES, SIR.
Q AND YOU'VE BEEN A FREQUENT GUEST OF THE COURT AND
OBSERVED THE PROCEEDINGS IN THIS CASE?
A ALMOST 100 PERCENT, SIR.
Q AND HAVE YOU WRITTEN ABOUT THE CASE IN ANY
PROFESSIONAL CAPACITY?
A YES, SIR, I HAVE.
Q HAVE YOU PUBLISHED ANY ARTICLES REGARDING THIS CASE?
A YES, SIR, I HAVE.
Q AND IN YOUR PROFESSIONAL CAPACITY, PRIOR TO
PUBLISHING ARTICLES IN THIS CASE, HAVE YOU PUBLISHED ANY BOOKS?
A YES, SIR.
Q WOULD YOU TELL US WHAT THOSE ARE?
A YES, SIR.
WELL, MOST RELEVANT I THINK WAS THE REASON THAT I'M
HERE, IS MY LAST BOOK, WAS CALLED BLOOD WILL TELL, AND IT HAS A
DIRECT BEARING ON THIS THAT MOST FOLKS KNOW, SO I SHOULD GET OUT,
AND THAT IS MY ASSOCIATION WITH DR. HENRY LEE WHO WORKED VERY
CLOSELY WITH ME ON THAT BOOK.
Q AND YOU ALSO WERE THE CO-AUTHOR ON THAT BOOK WITH
SOMEONE ALSO?
A NO. I WAS THE SOLE AUTHOR OF THAT, SOLE AUTHOR OF
BLOOD WILL TELL, YES.
Q AND THAT DEALT WITH A CASE THAT WAS PROSECUTED OR
DEFENDED BY A FORMER PROSECUTOR FROM THE DISTRICT ATTORNEY'S
OFFICE?
A AS A MATTER OF FACT, IT INVOLVED -- A VERY LONG CASE
THAT INVOLVED OVER 12 PROSECUTORS OVER THE 10-YEAR PERIOD OF CASE
AND A NUMBER OF DIFFERENT DEFENSE ATTORNEYS.
Q REGARDING THIS CASE, DID YOU PUBLISH AN ARTICLE
ENTITLED NOTICES FROM -- NOTES FROM CAMP O.J.?
A YES, SIR.
Q AND WAS THAT PUBLISHED IN THE PENTHOUSE MAGAZINE,
ISSUE JUNE 1995?
A YES, SIR, IT WAS.
Q AND IN THE COURSE OF THAT ARTICLE, DID YOU WRITE THE
FOLLOWING: THAT YOU HAD INFORMATION FROM A CERTAIN POLICE
OFFICER?
DID YOU WRITE THAT, SIR?
A YES, SIR, I DID.
Q WAS THAT TRUE AND ACCURATE WHEN YOU WROTE IT?
MR. GOLDBERG: WELL, ASSUMES A FACT NOT IN EVIDENCE, THAT
HE WROTE THAT HE HAD INFORMATION FROM A CERTAIN POLICE OFFICER.
THE COURT: COUNSEL, WHY DON'T WE JUST REFER TO THE
SPECIFIC PARAGRAPH THAT WE'RE TALKING ABOUT HERE.
MR. SHAPIRO: YOU WANT ME TO READ THE WHOLE PARAGRAPH?
WELL, I WAS ONLY GOING TO GO TO THE RELEVANT PORTIONS, BUT I'LL
BE MORE THAN GLAD TO.
Q BY MR. SHAPIRO: DID YOU WRITE THIS PARAGRAPH AND
WERE THE FACTS THAT YOU WROTE TRUE AND ACCURATE AT THE TIME YOU
WROTE THEM?
THE PARAGRAPH READS AS FOLLOWS:
"THERE HAS BEEN ENOUGH LEAKING OUT HERE TO SINK
CAMP O.J. IF IT WERE ON A BARGE BY THE DEFENSE AND THE
PROSECUTION ALIKE --"
MR. GOLDBERG: WELL, I WOULD LIKE TO POSE AN OBJECTION
BEFORE HE READS THE WHOLE THING BECAUSE THERE WILL BE NO
FOUNDATION FOR MANY OF THE ITEMS WITHIN THIS PARAGRAPH SUCH AS
THAT HE SPOKE TO AN L.A. POLICE OFF -- OR THE IMPLICATION THAT HE
SPOKE TO AN L.A. POLICE OFFICER.
THE COURT: WELL, THE QUESTION IS, "DID YOU WRITE THE
FOLLOWING TEXT?"
MR. GOLDBERG: BUT HE WAS GOING TO ASK HIM WHETHER OR NOT
IT WAS TRUE OR ACCURATE.
THE COURT: WELL, THE OBJECTION IS OVERRULED AT THIS TIME.
THAT OBJECTION IS PREMATURE.
Q BY MR. SHAPIRO: DID YOU WRITE THE FOLLOWING TEXT,
SIR:
"THERE HAS BEEN ENOUGH LEAKING OUT HERE TO SINK CAMP O.J.
IF IT WERE ON A BARGE BY THE DEFENSE AND THE PROSECUTION ALIKE,
BUT BOTH ARE PIKERS COMPARED TO THE L.A. POLICE DEPARTMENT. IT
BEGAN LAST SUMMER WITH THE LOS ANGELES -- WITH THE LAPD PASSING
OUT 911 TAPES TO JOURNALISTS AS IF THEY WERE COURTESY TRINKETS
WELCOMING THEM TO TOWN AND REACHED ITS MATER WITH THE, QUOTE, DNA
SOCK MATCH, END QUOTE, STORY.
OF THE LATTER, THIS I KNOW. WITHIN TWO HOURS OF
JUDGE ITO ADMONISHING THE POLICE FOR, QUOTE, RECKLESS DISREGARD,
END QUOTE, OF THE TRUTH, LAPD'S WORSE MOMENT TO THAT DATE, A
CERTAIN POLICE OFFICER WHOSE LEAKS HAD HITHERTO BEEN MOST
ACCURATELY -- MOST ACCURATE AND OFFERED --"
THE COURT: REREAD IT.
MR. SHAPIRO: "-- MOSTLY ACCURATE AND OFFERED WITH
CORROBORATION STARTED CALLING JOURNALISTS WITH THE STORY THAT
BLOOD ON THE SOCKS FOUND IN O.J.'S BEDROOM WAS A DNA MATCH WITH
NICOLE'S. THIS TIME, HOWEVER, THE OFFICER OFFERED NO
CORROBORATION AND BECAME ANGRY AND DEFENSIVE WHEN ASKED. A
NUMBER OF JOURNALISTS TURNED HIM DOWN. APPARENTLY KNBC DID NOT,
AND THE REST IS UGLY HISTORY FOR BOTH THE PRESS AND THE LAPD."
DID YOU WRITE THAT, SIR?
A YES, SIR, I DID.
Q AND WHAT YOU WROTE, WAS THAT TRUTHFUL?
MR. GOLDBERG: WELL, NOW I INTERPOSE THE OBJECTION THAT IT
CALLS FOR AN OPINION, CONCLUSION, HEARSAY, NO FOUNDATION,
AUTHENTICATION, AND -- I MEAN THERE ARE MANY, MANY CONCEPTS
WITHIN THAT ARTICLE. SO TO ASK HIM WHETHER THE WHOLE THING IS
TRUTHFUL IS JUST A COMPOUND QUESTION.
THE COURT: OVERRULED.
Q BY MR. SHAPIRO: WAS THAT TRUTHFUL, SIR?
A YES, SIR.
Q WAS IT ACCURATE REPORTING, SIR?
A YES, SIR.
MR. SHAPIRO: NOTHING FURTHER.
THE COURT: ALL RIGHT.
MR. GOLDBERG.
CROSS-EXAMINATION
BY MR. GOLDBERG:
Q SIR, DID YOU ACTUALLY SPEAK TO SOMEONE FROM THE LOS
ANGELES POLICE DEPARTMENT?
MR. GOLDBERG: WELL, LET ME WITHDRAW THAT QUESTION AND
RESTATE IT, YOUR HONOR.
THE WITNESS: WOULD YOU MIND? I DID NOT HEAR THIS.
EXCUSE ME.
(THE WITNESS CONFERS WITH
HIS ATTORNEY.)
THE COURT: MR. GOLDBERG.
Q BY MR. GOLDBERG: SIR, WILL YOU TELL US WHO THE
SOURCE WAS OF THE STATEMENT THAT THERE HAD BEEN CERTAIN RESULTS
ON THE SOCKS?
A WELL, OF COURSE, WITH THE -- I MEAN, I MUST INVOKE
WITH ALL DUE RESPECT THE CALIFORNIA SHIELD LAW.
Q SO YOU WON'T TELL US THE SOURCE. WILL YOU TELL US
WHETHER YOU ACTUALLY SPOKE TO SOMEONE THAT YOU BELIEVED TO BE
WITH THE LAPD?
A AGAIN, WITH ALL DUE RESPECT TO THE COURT, I MUST
INVOKE THE CALIFORNIA SHIELD LAW.
Q SO WHAT PARTS OF THIS PARAGRAPH THAT WAS READ TO YOU
ARE CORRECT WHEN YOU ANSWERED MR. SHAPIRO'S QUESTION ABOUT
WHETHER OR NOT THEY'RE CORRECT? WHICH PARTS WERE YOU ANSWERING
TO?
A I ALSO ANSWERED YOUR QUESTION TO THE YES, IT'S ALL
CORRECT.
Q OKAY.
SO YOU WERE INDICATING EACH AND EVERY SENTENCE,
INCLUDING THE ONES THAT ARE OPINIONS?
A I'M TESTIFYING, SIR, THAT THOSE TWO PARAGRAPHS ARE AN
ACCURATE AND -- ACCURATE REPRESENTATION OF WHAT I WROTE AND WAS
PUBLISHED.
Q OKAY.
BUT, FOR EXAMPLE, THE FIRST SENTENCE IS:
"THERE HAS BEEN ENOUGH LEAKING OUT HERE TO CAMP O.J. IF IT
WERE A BARGE."
DID YOU MEAN THAT LITERALLY, THAT IT WOULD SOMEHOW --
THE WEIGHT OF THE MATERIAL WOULD SINK A BARGE OR WAS THIS AN
OPINION OF YOURS?
A WELL, LET ME ASK YOU, MR. GOLDBERG, DO YOU NOT AGREE
WITH THAT?
Q NO, I DON'T, BUT --
THE COURT: EXCUSE ME.
MR. BOSCO, JUST ANSWER THE QUESTION, PLEASE.
THE WITNESS: EXCUSE ME, SIR.
Q BY MR. GOLDBERG: MR. BOSCO, IS THAT AN OPINION OF
YOURS?
THE COURT: AND, MR. GOLDBERG, LET'S UNDERSTAND WHO THE
AUDIENCE IS FOR THIS PARTICULAR HEARING.
MR. GOLDBERG: I UNDERSTAND.
THE COURT: ALL RIGHT.
I RECOGNIZE OPINIONS AND HYPERBOLE WHEN I SEE IT.
MR. GOLDBERG: WELL, THE POINT IS THAT WE CAN'T TELL HERE
WHAT IS OPINION AND WHAT HERE IS FACT FROM READING IT. THAT'S
THE ONLY POINT.
THE COURT: ANY OTHER POINTS?
Q BY MR. GOLDBERG: WELL, LET ME ASK YOU THIS, MR.
BOSCO, AND MAYBE -- AND WE'LL MAKE IT A LITTLE QUICKER.
WOULD IT BE FAIR TO SAY THAT A LOT OF WHAT YOU'RE
WRITING IN THIS PARAGRAPH IS YOUR OPINIONS AS OPPOSED TO FACTS
THAT YOU LEARNED FROM SOME SOURCE, WHATEVER THE SOURCE MAY BE?
A NO, I DO NOT BELIEVE THAT WOULD BE AN ACCURATE -- OF
THESE TWO PARAGRAPHS?
Q YES.
A NO, I DO NOT BELIEVE THAT THAT WOULD BE ACCURATE.
Q OKAY.
THE SENTENCE ABOUT THERE BEING ENOUGH LEAKING OUT
HERE TO SINK CAMP O.J., IS THAT AN OPINION? WOULD YOU
CHARACTERIZE THAT AS AN OPINION?
A IT'S -- IT STANDS FOR WHAT IT STANDS FOR IN THOSE
PARAGRAPHS.
Q WELL, DID SOMEONE TELL YOU THAT OR IS THAT A
CONCLUSION THAT YOU DREW ON YOUR OWN?
THE WITNESS: ONE SECOND, YOUR HONOR.
(THE WITNESS CONFERS WITH
HIS ATTORNEY.)
THE WITNESS: EXCUSE ME.
THANK YOU.
THAT'S WHAT I WROTE. THAT'S WHAT I CAN -- THAT'S
WHAT I BELIEVE TO BE ACCURATE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. GOLDBERG: BUT WHAT I'M ASKING YOU, SIR, IS,
IS THIS SOME THINGS SOMEONE TOLD YOU OR IS THIS AN OPINION THAT
YOU ARRIVED AT ON YOUR OWN?
A AGAIN, AS I SAID, IT IS WHAT I WROTE. IT IS
ACCURATE.
MR. GOLDBERG: YOUR HONOR, PERHAPS HE COULD BE ASKED TO
SIMPLY ANSWER THE QUESTION AS TO WHETHER THIS IS SOMETHING THAT
SOMEONE ELSE TOLD HIM OR AN OPINION THAT HE ARRIVED AT.
THE COURT: OVERRULED.
Q BY MR. GOLDBERG: SIR, WHEN YOU WROTE HERE IN THIS
SENTENCE, IT'S TOWARDS THE BOTTOM OF THE FIRST PARAGRAPH,
"WITHIN TWO HOURS OF JUDGE ITO ADMONISHING THE POLICE FOR
RECKLESS DISREGARD OF THE TRUTH, THE LAPD'S WORSE MOMENT TO THAT
DATE, A CERTAIN POLICE OFFICER WHOSE LEAK HAD HERETO BEEN MOSTLY
-- HAD HERETO BEEN MOSTLY ACCURATE AND OFFERED WITH CORROBORATION
STARTED CALLING JOURNALISTS WITH THE STORY,"
CAN YOU TELL US WHETHER YOU HAD ONE SOURCE FOR THAT OR MORE THAN
ONE SOURCE?
A I MUST AGAIN WITH ALL DUE RESPECT TO THE COURT AND
YOURSELF, SIR, INVOKE THE REPORTER'S SHIELD.
Q OKAY.
CAN YOU TELL US WHETHER YOU HAD ANY SOURCE FOR THAT
INFORMATION?
A I BELIEVE THAT QUESTION HAS BEEN ANSWERED. A CERTAIN
POLICE OFFICER.
Q DID -- AND CAN YOU TELL US WHETHER THIS CERTAIN
POLICE OFFICER TOLD YOU THAT HE CALLED A NUMBER OF JOURNALISTS?
A I AGAIN MUST INVOKE THE REPORTER'S SHIELD LAW WITH
ALL DUE RESPECT.
Q SO YOU CAN NOT TELL US WHETHER THIS INFORMATION THAT
I JUST READ TO YOU REPRESENTS A SINGLE SOURCE AS OPPOSED TO
MULTIPLE SOURCES?
A I CAN TELL YOU THAT THIS IS A FAIR AND ACCURATE
REPRESENTATION OF WHAT I WROTE AND BEYOND THAT, I MUST AGAIN
RESPECTFULLY INVOKE THE REPORTER'S SHIELD LAW.
MR. GOLDBERG: I HAVE NOTHING FURTHER.
THE COURT: MR. SHAPIRO.
MR. SHAPIRO: NOTHING FURTHER, YOUR HONOR.
THANK YOU.
THE COURT: ALL RIGHT.
MR. BOSCO, THANK YOU VERY MUCH, SIR.
THE WITNESS: THANK YOU, YOUR HONOR.
THE COURT: YOU ARE SUBJECT TO RECALL.
THE WITNESS: YES, SIR.
THE COURT: ALL RIGHT.
THE WITNESS: THANK YOU, SIR.
MR. SHAPIRO: YOUR HONOR, WE WOULD LIKE, WITH THE COURT'S
PERMISSION, TO HAVE MR. BOSCO RETURN TOMORROW -- HE NORMALLY IS
IN THE COURTROOM -- IN THE EVENT THE COURT FINDS HIS TESTIMONY
RELEVANT SO WE MAY PRESENT IT BEFORE THE JURY TOMORROW.
THE WITNESS: I STILL HAVE A SEAT, RIGHT, YOUR HONOR?
THE COURT: ALL RIGHT.
ANYTHING ELSE ON THIS ISSUE, COUNSEL?
MR. SHAPIRO: SUBMITTED, YOUR HONOR.
MR. GOLDBERG: YOUR HONOR, I JUST WANT TO RESPOND TO SOME
OF THE COMMENTS THAT WERE MADE BY COUNSEL JUST A FEW MOMENTS AGO
SINCE I DID NOT GET AN OPPORTUNITY OBVIOUSLY TO DO THAT.
YOUR HONOR I AM SURE RECOGNIZES THAT WE MADE A
MULTI-PRONGED ARGUMENT AS TO WHY THIS TYPE OF TESTIMONY SHOULD
NOT BE ALLOWED, INCLUDING ISSUES THAT I WILL NOT REPEAT, SUCH AS
RELEVANCY ISSUES RELATING TO FOUNDATION, ISSUES RELATING TO
AUTHENTICATION OF HOW IT IS THAT THE INDIVIDUAL KNOWS WHO THIS
PERSON WAS THAT THEY WERE TALKING TO OR EVEN IF THEY WERE TALKING
TO A PERSON. I'D LIKE TO SIMPLY RESPOND TO WHAT I CHARACTERIZED
I THINK WHEN I PREVIOUSLY SPOKE TO YOU AS BEING THE THIRD PRONG,
WHICH IS WHETHER OR NOT THE PROSECUTION COULD CROSS-EXAMINE A
WITNESS WHO PRESENTED THIS KIND OF EVIDENCE, WHICH COUNSEL SEEMS
TO HAVE ALSO FOCUSED ON.
NOW, FIRST OF ALL, IN THE STATE OF CALIFORNIA, THE
PEOPLE DO HAVE THE RIGHT TO A FAIR TRIAL. I DON'T KNOW WHERE THE
IDEA CAME FROM THAT ONLY THE DEFENSE HAS THE RIGHT TO A FAIR
TRIAL. AND WE ALSO HAVE A RIGHT TO CROSS-EXAMINE WITNESSES.
AND THOSE RIGHTS WOULD BE DEPRIVED IF WE WERE TO
ALLOW THE KIND OF TESTIMONY THAT YOUR HONOR HAS JUST HEARD WHERE
SOMEONE SAID, "WELL, WHAT I WROTE IS TRUE," AND WON'T TELL US
WHETHER THEY'RE OPINIONS AS OPPOSED TO FACTS, WON'T TELL US
WHETHER IT'S A SINGLE SOURCE AS OPPOSED TO MULTIPLE SOURCES,
WON'T EVEN TELL US FOR SURE WHETHER IT IS A SOURCE AS OPPOSED TO
DOUBLE HEARSAY, IN OTHER WORDS, HIM GETTING INFORMATION FROM A
JOURNALIST WHO THEN CLAIMS THAT THEY SPOKE TO THIS INDIVIDUAL.
WE WOULDN'T BE ABLE TO EXPLORE ANY OF THOSE THINGS AS WAS JUST
ILLUSTRATED A FEW MOMENTS AGO.
AND ALSO, IT ILLUSTRATES HOW, IF THE DEFENSE WERE TO
OFFER THIS KIND OF TESTIMONY, IT COULD NOT BE ADMISSIBLE WITHOUT
MORE. NOW, LET ME JUST GIVE THE COURT A VERY CONCRETE EXAMPLE.
LET'S SAY THAT MR. BOSCO WERE ANSWERING QUESTIONS A
LITTLE BIT MORE DIRECTLY THAN HE JUST DID AND THE DEFENSE HAD
ASKED HIM, "DID YOU SPEAK TO SOMEONE ON THE TELEPHONE," AND HE
SAID, "YES, I DID." "WAS THIS A MALE OR A FEMALE?" HE SAID, "IT
WAS A MALE." "WAS THIS PERSON FROM THE LOS ANGELES POLICE
DEPARTMENT," AND AT THAT POINT THE PROSECUTION INTERPOSED AN
OBJECTION, OBJECTION, NO FOUNDATION FOR AUTHENTICATION.
THAT OBJECTION WOULD BE SUSTAINED AND HE WOULD NEVER
BE ALLOWED TO OFFER THE STATEMENT THAT, "YES, I SPOKE TO A MEMBER
OF THE LOS ANGELES POLICE DEPARTMENT," UNLESS THE DEFENSE COULD
THEN LAY A FURTHER FOUNDATION OF, "WAS THIS A VOICE THAT YOU
RECOGNIZED AND WAS THIS SOMEONE YOU TALKED TO IN PERSON ON
PREVIOUS OCCASIONS SUFFICIENTLY TO BE ABLE TO RECOGNIZE THEIR
VOICE" WHEN HE SPOKE TO HIM ON THE TELEPHONE. AND THEN AFTER
THAT FOUNDATION HAD BEEN LAID, THEN AND ONLY THEN WOULD THE COURT
THEN ALLOW HIM TO TESTIFY, "YES, I RECOGNIZE THIS TO BE AN
INDIVIDUAL THAT I KNEW TO BE A LOS ANGELES POLICE OFFICER."
SO WHAT THE LITTLE ILLUSTRATION THAT WE JUST HAD IN
COURT REPRESENTS, THAT IF ALL THE DEFENSE COULD EVER DO WAS OFFER
THE TESTIMONY THAT YOUR HONOR JUST HEARD, THEY'D NEVER BE ABLE TO
ESTABLISH A FOUNDATION FOR THE STATEMENTS THAT ARE CONTAINED IN
THESE TWO PARAGRAPHS OF THE ARTICLE.
I THINK IT ALSO ILLUSTRATES SOME OF THE OTHER ISSUES
THAT I PREVIOUSLY MENTIONED, PARTICULARLY RELEVANCY AND HOW THIS
WHOLE THING IN ALL PROBABILITY BOILS DOWN TO -- AND EVIDENTLY
BOILS DOWN TO NOTHING MORE THAN A MISUNDERSTANDING OF SOMEONE
MISREPEATING OR MISHEARING SOME INFORMATION AND THEN MAYBE
MISREPORTING THE INFORMATION. WE WOULDN'T BE ABLE TO EXPLORE
THAT EITHER ON CROSS-EXAMINATION.
AND FOR THOSE REASONS, YOUR HONOR, WE SAY THAT THIS
TESTIMONY SHOULD BE PRECLUDED.
AND FINALLY, YOUR HONOR, UNDER EVIDENCE CODE SECTION
352, I THINK THE COURT CAN SEE THE QUAGMIRE THAT WE WOULD BE
GETTING INTO IN THIS KIND OF AN ISSUE AND ANY MINIMAL PROBATIVE
VALUE OF THE TESTIMONY -- WE SAY THERE'S NO PROBATIVE VALUE --
WOULD CLEARLY BE SUBSTANTIALLY OUTWEIGHED BY ITS EFFECT IN
MISLEADING THE JURY AND CONFUSING THE ISSUES IN THIS TRIAL.
THANK YOU.
THE COURT: THANK YOU, COUNSEL.
ALL RIGHT.
ANYTHING ELSE THAT WE NEED TO TAKE UP BEFORE WE TAKE
OUR RECESS FOR THE AFTERNOON?
MR. COCHRAN: ONE LAST THING, YOUR HONOR. YOU MAY WANT TO
DO IT LATER OR NOW.
THERE'S A MOTION THAT WAS FILED I BELIEVE THIS
MORNING. IT'S THE DEFENDANT'S MOTION FOR STATEMENTS OF WITNESSES
GIVEN IN THE COURSE OF AN INVESTIGATION BY THE LAPD INTERNAL
AFFAIRS DIVISION.
I ONLY RISE NOW BECAUSE I WANTED THE COURT TO HAVE
THIS MOTION IN MIND BECAUSE IT TIES IN WITH MICHELE KESTLER AND
EVERYTHING ELSE. AND SO JUST AT THE APPROPRIATE TIME, WE WOULD
LIKE TO HAVE THAT SET.
THE COURT: I SAW THAT AND I NOTED IN THE PROOF OF SERVICE
THAT THE LOS ANGELES POLICE DEPARTMENT AND THE CITY ATTORNEY'S
OFFICE WAS NOT INCLUDED ON THE PROOF OF SERVICE. I WONDERED
ABOUT THAT.
MR. DOUGLAS: YOUR HONOR, THEY WERE -- MR. WALSH WAS SERVED
THIS MORNING.
THE COURT: OKAY.
MR. COCHRAN: SO AT YOUR CONVENIENCE. YOU HAVE A FEW
THINGS TO DEAL WITH. BUT THIS TIES IN WITH WHAT WE'RE TALKING
ABOUT. SO I JUST WANTED TO LET YOU KNOW ABOUT THAT. THAT'S ALL.
THE COURT: ALL RIGHT.
ANYTHING ELSE?
MR. COCHRAN: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
WE'LL STAND IN RECESS UNTIL 9:00 O'CLOCK TOMORROW
MORNING.
THANK YOU, COUNSEL.
(AT 5:10 P.M., AN ADJOURNMENT
WAS TAKEN UNTIL, WEDNESDAY,
AUGUST 2, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )
)
)
VS. ) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )
REPORTER'S TRANSCRIPT OF PROCEEDINGS
TUESDAY, AUGUST 1, 1995
VOLUME 197
PAGES 39482 THROUGH 39770, INCLUSIVE
APPEARANCES: (SEE PAGE 2)
JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378
OFFICIAL REPORTERS
APPEARANCES:
FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA C. BODIN, HANK M. GOLDBERG,
ALAN YOCHELSON AND DARRELL S.
MAVIS, BRIAN R. KELBERG, AND
KENNETH E. LYNCH, DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012
FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067
JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010
GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
PETER NEUFELD, ESQUIRE
ROBERT D. BLASIER, ESQUIRE
WILLIAM C. THOMPSON, ESQUIRE
ALSO PRESENT: ARTHUR WALSH, DEPUTY CITY
ATTORNEY
MICHAEL D. SULLIVAN, ESQUIRE
HALINA F. OSINSKI, ESQUIRE
I N D E X
INDEX FOR VOLUME 197 PAGES 39482 - 39770
-----------------------------------------------------
DAY DATE SESSION PAGE VOL.
TUESDAY AUGUST 1, 1995 A.M. 39482 197
P.M. 39640 197
-----------------------------------------------------
PROCEEDINGS
402 MOTION RE MICHELE KESTLER 39482 197
402 MOTION RE DR. JOHN GERDES 39686 197
LEGEND:
MS. CLARK - MC MR. SHAPIRO - S
MR. HODGMAN - H MR. COCHRAN - C MR. DARDEN D
MR. DOUGLAS - CD
MS. LEWIS - L MR. BAILEY - B
MS. KAHN - K MS. CHAPMAN - SC MR. GOLDBERG -
GB MR. BLASIER - BB
MR. CLARKE - GC MR. UELMEN - U
MR. HARMON - RH MR. SCHECK - BS
MR. GORDON - G MR. NEUFELD - N
MR. KELBERG - BK
-----------------------------------------------------
CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE (402)
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
KESTLER, 39492N 39532GB 197
MICHELE
BOSCO, 39753S 39760GB 197
JOSEPH
-----------------------------------------------------
DEFENSE
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
MAC DONELL, 197
HERBERT
(RESUMED) 39540MC 39590N 39622MC
(FURTHER) 39635N
PERATIS, THANO 39655 197
(TESTIMONY READ INTO THE RECORD
FROM THE PRELIMINARY HEARING)
ALPHABETICAL INDEX OF WITNESSES
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
BOSCO, 39753S 39760GB 197
JOSEPH (402)
KESTLER, 39492N 39532GB 197
MICHELE (402)
MAC DONELL, 197
HERBERT
(RESUMED) 39540MC 39590N 39622MC
(FURTHER) 39635N
PERATIS, THANO 39655 197
(TESTIMONY READ INTO THE RECORD
FROM THE PRELIMINARY HEARING)
EXHIBITS
DEFENSE FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
1281 - 5-PAGE REPORT 39499 197
FROM CELLMARK DATED SEPTEMBER 8, 1994
1282 - 1-PAGE DOCUMENT 39499 197
FACSIMILE DATED SEPTEMBER 16, 1994
1283 - VIDEOTAPE 39647 197
OF THE TESTIMONY OF THANO PERATIS AT THE
PRELIMINARY HEARING
1284 - 5-PAGE DOCUMENT 39663 197
DESCRIBED AS THE GRAND JURY TESTIMONY OF
THANO PERATIS ON JUNE 22, 1994, AT 2:00 P.M.
