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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - ANDREA MAZZOLA - 30k
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Date: Fri, 5 May 1995 01:39:35 GMT
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Sidebars from April 20, 1995
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT.
WE'RE OVER AT THE SIDEBAR.
MR. NEUFELD.
MR. NEUFELD: YOUR HONOR, MY CONCERN IS, I UNDERSTAND --
THE COURT: KEEP YOUR VOICE DOWN.
MR. NEUFELD: SORRY.
I UNDERSTAND IT'S PERFECTLY PROPER TO TRY TO DIMINISH
THE STING OF DEFENSE ARGUMENT WHEN PRESENTING THESE UP ON DIRECT
EXAMINATION, BUT I WOULD OBJECT TO HIS USE OF -- ACTUALLY
IMPEACHING THE WITNESS WITH PRIOR TESTIMONY WHICH IS INCONSISTENT
WITH THE TESTIMONY SHE JUST GAVE ON DIRECT EXAMINATION AT THIS
TIME. I DON'T BELIEVE THAT'S AN APPROPRIATE THING TO BE DONE ON
DIRECT EXAMINATION.
THE COURT: WELL --
MR. GOLDBERG: IN CALIFORNIA IT IS.
THE COURT: DO YOU HAVE ANY CASE AUTHORITY FOR THAT,
COUNSEL?
MR. NEUFELD: TO BE QUITE HONEST, THAT'S THE LAW IN BOTH
THE TWO JURISDICTIONS IN WHICH I PRACTICE. I'M NOT FAMILIAR WITH
WHAT THE LAW IS IN CALIFORNIA ON THAT PARTICULAR POINT.
THE COURT: CALIFORNIA WOULD FOLLOW THE MODERN AND FEDERAL
LAW. ANY PARTY CAN IMPEACH ANY WITNESS INCLUDING THEIR OWN.
MR. GOLDBERG: DO YOU HAVE YOUR TRANSCRIPT?
MR. NEUFELD: CAN I HAVE AN OFFER OF PROOF WHAT HE INTENDS
TO READ?
MR. GOLDBERG: DO YOU WANT ME TO READ THE --
THE COURT: NO. JUST TELL ME THE GENERAL AREA.
MR. GOLDBERG: THE OFFER OF PROOF IS, SHE SAID THAT SHE
SELECTED ALL THE STAINS AT BUNDY, AND IT'S A LITTLE BIT AMBIGUOUS
IN RELATIONSHIP TO WHAT SHE SAID HERE.
MR. NEUFELD: IT'S NOT AMBIGUOUS. IT CONTRADICTS IT.
THE COURT: OKAY.
ALL RIGHT. AT THIS POINT, THE OBJECTION IS
OVERRULED.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT.
MR. GOLDBERG, WHAT DO YOU NEED TO CLARIFY?
MR. GOLDBERG: YOUR HONOR, I KNOW ON 15 AND 16, THE AIRLINE
TICKET AND THE BAGGAGE CLAIM --
THE COURT: OH, NO, NOT THIS AGAIN.
MR. GOLDBERG: THAT'S WHY I WANTED TO APPROACH, SO I CAN
MAKE SURE I'M NOT GOING TO GO -- WE'VE HAD TESTIMONY THERE WAS A
15 AND 16 COLLECTED AT 5:00 O'CLOCK, BUT THAT'S IT, WHICH FROM MY
VIEW, IT SORT OF WENT BEYOND THE COURT'S --
MR. SCHECK: WHAT DO YOU WANT TO DO? MAYBE WE WON'T HAVE
ANY OBJECTION. JUST TELL US WHAT YOU WANT TO DO.
MR. GOLDBERG: I WAS JUST GOING TO ASK HER WHEN 15 AND 16
WERE COLLECTED, NOT ASK WHAT THEY WERE.
MR. NEUFELD: WE HAVE NO OBJECTION.
THE COURT: JUST THAT ONE QUESTION.
MR. GOLDBERG: I SHOULD HAVE BROUGHT THE TRANSCRIPT UP WITH
ME, BUT THERE'S SOME INCONSISTENT STATEMENTS SHE MAKES REGARDING
WHEN SHE LEFT THE LOCATION. SHE THOUGHT IT WAS SHORTLY AFTER
5:00, AND IT'S BASED ON THE TIME OF THE COLLECTION OF 15 AND 16.
THERE'S REFERENCE IN THAT TRANSCRIPT TO COLLECTIVELY 15 AND 16,
THE AIRLINE TICKET. MY PROPOSAL WOULD BE SIMPLY NOT TO READ
THAT, REDACT THAT OUT.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. NEUFELD: DOES THE TRANSCRIPT -- HANK, DOES THE
TRANSCRIPT REFER TO WHERE IT WAS COLLECTED FROM THOUGH?
MR. GOLDBERG: UH-UH. I DON'T THINK IT DOES.
MR. NEUFELD: I MEAN --
MR. GOLDBERG: IF IT DOES, IF IT REFERS TO ANYTHING ELSE --
MR. NEUFELD: NO. I'M SAYING IT'S FINE TO BRING OUT THE
LOCATION. IN FACT, JUST TO TAKE CARE OF IT NOW, IF YOU DON'T
BRING IT OUT, WE WILL BRING IT OUT LATER ON. JUST ITEMS WERE
COLLECTED IN THE BATHROOM AND ITEMS WERE COLLECTED ON THE BENCH
OUTSIDE THE FRONT DOOR.
THE COURT: OKAY. IF THEY HAVE NO OBJECTION.
MR. GOLDBERG: I DON'T KNOW. I MEAN IF IT WASN'T
SUPPRESSED, IT WASN'T SUPPRESSED. BUT IF IT WERE SUPPRESSED,
IT'S SUPPRESSED.
THE COURT: NO. WHAT HAPPENED WAS, THERE WAS AN AGREEMENT
THE PEOPLE WERE NOT GOING TO OFFER IT RATHER THAN IT BEING
SUPPRESSED. BUT THE OBJECTION HAS TO BE MADE BY THE DEFENSE TO
SUPPRESS IT OR OTHERWISE KEEP IT OUT. IF THEY HAVE NO OBJECTION,
THEN I ASSUME WE CAN TALK ABOUT IT.
MR. NEUFELD: IT'S BASICALLY OUR DECISION -- FRANKLY, THE
WAY IT WAS BROUGHT OUT ON TWO SEPARATE OCCASIONS BY THE PEOPLE AS
PART OF THEIR DIRECT CASE CREATED AN IMPRESSION UPON THE JURORS
NOW THERE'S SOMETHING WE'RE TRYING TO HIDE RATHER. SO IT'S ONLY
UNDER THAT KIND OF PRESSURE THAT WE FEEL COMPELLED TO, YOU KNOW,
SIMPLY SAY WHERE THOSE ITEMS WERE.
THE COURT: KEEP YOUR VOICE DOWN. BUT IT'S A TACTICAL
DECISION ON YOUR PART. SO IF THAT'S YOUR DECISION, THAT'S FINE
WITH ME.
MR. SCHECK: IN TERMS OF THE LOCATION AND THE ITEM NUMBERS.
THE COURT: RIGHT. LOCATION AND ITEM NUMBERS. THAT'S
CORRECT.
AND THEN YOU INTEND ON GOING INTO TIME AND WE'RE
AGREED YOU WILL JUST READ THE PART THAT SAYS ITEM 15 AND 16, NOT
WHAT THEY ARE, CORRECT?
MR. GOLDBERG: YES.
MAY I JUST HAVE ONE MOMENT?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. GOLDBERG: OKAY.
THE COURT: OKAY. DONE.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE ARE OVER AT THE SIDE BAR.
WHAT IS THE NON-HEARSAY PURPOSE?
MR. GOLDBERG: CORROBORATE MR. FUNG'S TESTIMONY THAT HE
NEVER TRIED TO GENERATE A NEW FORM WHICH HE HAS ALREADY TESTIFIED
TO.
MR. NEUFELD: THAT IS --
MR. GOLDBERG: SO WHAT SHE IS SAYING IS THAT MR. FUNG NEVER
TOLD ME TO GENERATE A NEW FORM, SO THERE IS NO DECLARATIVE
STATEMENT THAT IT IS COMING IN FOR THE TRUTH OF THE MATTER
ASSERTED. THERE IS NO DECLARATIVE STATEMENT PERIOD.
WHAT IS THE STATEMENT THAT IT IS COMING IN FOR THE
TRUTH? IT IS THE ABSENCE OF A STATEMENT THAT IS COMING IN.
MR. NEUFELD: FIRST OF ALL, WHAT QUESTION WAS HE GOING TO
STATE? BECAUSE HE STARTED TO SAY SOMETHING. WHAT WAS THE
QUESTION YOU WERE GOING TO ASK?
MR. GOLDBERG: IS DID MR. FUNG EVER TELL YOU TO GENERATE --
TO THROW THIS DOCUMENT AWAY AND GENERATE A NEW FORM OR TO CLEAN
UP THIS DOCUMENT UP.
MR. NEUFELD: I WOULD OBJECT AGAIN ON HEARSAY.
THE COURT: ALL RIGHT. OVERRULED. IT IS NOT A STATEMENT.
MR. NEUFELD: OKAY.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
MR. NEUFELD.
MR. NEUFELD: ON THE CONTRARY, YOUR HONOR. I'M CERTAINLY
NOT OFFERING THE STATEMENT TO SUGGEST THAT IT HAPPENED. I'M
OFFERING IT AS IMPEACHMENT TO SUGGEST THAT IT DIDN'T HAPPEN.
IF I WANTED TO -- AS YOU KNOW, THE DEFENSE POSITION
IS, WE'RE NOT TRYING TO SUGGEST DENNIS FUNG'S RECOLLECTION OF WHO
DID WHAT IS CORRECT. I'M SUGGESTING THAT MISS MAZZOLA'S
RECOLLECTION AS SHE TESTIFIED TO ON AUGUST 23RD IS CORRECT.
SO TO THE EXTENT THAT I AM SAYING THAT DENNIS FUNG
TOLD HER SOMETHING DIFFERENT THAN WHAT SHE TESTIFIED TO AND TOLD
HER HE TOTALLY DISAGREED WITH IT, I'M NOT OFFERING IT TO PROVE
THE TRUTH OF WHAT DENNIS FUNG TOLD HER. I'M SIMPLY OFFERING IT
TO PROVE, NUMBER ONE, THAT HE SAID IT, NUMBER TWO, EQUAL
IMPORTANCE, TO SHOW WHAT EFFECT THAT HAD ON MISS MAZZOLA'S STATE
OF MIND.
THE COURT: SO WHAT'S THE EXCEPTION?
MR. NEUFELD: STATE OF MIND OF MISS MAZZOLA. THAT'S WHY
IT'S BEING INTRODUCED. AND SECONDLY, NOT EVEN --
THE COURT: KEEP YOUR VOICE DOWN.
MR. NEUFELD: SECONDLY, ALL RIGHT, IT'S NOT EVEN HEARSAY
BECAUSE IT'S NOT BEING OFFERED FOR THE TRUTH OF THE MATTER
ASSERTED THEREIN.
THE COURT: MR. GOLDBERG.
MR. GOLDBERG: HOW IS IT GOING TO HAVE ANY IMPACT ON THIS
WITNESS' STATE OF MIND -- I DON'T SEE HOW -- WHAT DENNIS FUNG'S
RECOLLECTIONS WERE OF THE EVIDENCE COLLECTION PROCEDURE.
ALSO, IT SEEMS TO ME COUNSEL SHOULDN'T BE ALLOWED TO
ASK LEADING QUESTIONS LIKE THAT UNLESS HE HAS A GOOD FAITH BELIEF
THAT SOMETHING LIKE THAT WAS ACTUALLY SAID. AND HE DOESN'T.
OTHERWISE, IT SHOULD BE BASED ON SOME SORT OF OFFER OF PROOF.
MR. NEUFELD: MY GOOD FAITH BASIS IS, DENNIS FUNG TESTIFIED
THAT AFTER AUGUST 23RD, HE HAD THIS DISCUSSION WITH HER AND HE
MADE UP A LIST OF WHO COLLECTED WHAT, AND HIS RECOLLECTION WAS
OBVIOUSLY DIFFERENT FROM HER RECOLLECTION BECAUSE, AS YOU KNOW,
WHAT SHE JUST TESTIFIED TO ON DIRECT EXAMINATION AS TO WHO
COLLECTED WHAT IS CONTRADICTED BY HER TESTIMONY ON AUGUST 23RD.
IN FACT, HE BROUGHT IT OUT TO TRY TO TAKE --
THE COURT: PHRASING THE QUESTION AS YOU JUST STATED RIGHT
NOW, I'LL OVERRULE THE OBJECTION, WHICH HAS TO DO WITH THE FACT
THAT DENNIS FUNG AFTER HER TESTIMONY WENT BACK AND WENT OVER WITH
HER WHO COLLECTED WHAT.
MR. NEUFELD: RIGHT.
THE COURT: YOU CAN ASK THAT QUESTION.
MR. NEUFELD: OKAY.
THE COURT: DID THAT HAPPEN.
MR. NEUFELD: FINE.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WHY DON'T YOU SHOW IT TO ME.
MR. NEUFELD: PAGE 689 BEGINNING WITH LINE -- I AM SORRY.
BEGINNING WITH LINE 7.
"QUESTION BY MR. NEUFELD: AND WHEN DID YOU COMMENCE YOUR
TRAINING IN CRIME SCENE COLLECTION?
"ANSWER: EXACT DAY, I'M NOT SURE.
"QUESTION: APPROXIMATE DATE.
"ANSWER: APPROXIMATELY A MONTH AFTER I BEGAN WORKING IN
THE LAB.
"QUESTION: MAYBE SOME TIME AROUND THE BEGINNING OF MARCH
1994?
"ANSWER: SOMETIME, FEBRUARY I BELIEVE.
"AND WHAT DID THAT TRAINING ENTAIL?
"ANSWER: I WENT OUT TO CRIME SCENES WITH MORE EXPERIENCED
CRIMINALISTS AND ASSISTED THEM AND ALSO LEARNED THE DIFFERENT
TECHNIQUES THAT THEY EMPLOY.
"AND I TAKE IT CURRENTLY AS OF RIGHT NOW TODAY, YOU ARE
STILL A TRAINEE IN CRIME SCENE COLLECTION; IS THAT CORRECT?
"I WOULD GO OUT AS A CRIMINALIST III TO A CRIME SCENE. SO
YES, I GUESS YOU COULD CLASSIFY ME AS A CRIME SCENE TRAINEE."
MR. GOLDBERG: IT'S NOT INCONSISTENT. SHE'S SAYING THAT
SHE AS A TRAINEE IN THE MENTAL PROCESS.
THE COURT: I AGREE WITH YOU THAT IS NOT DIRECTLY
INCONSISTENT. ASK HER ANOTHER QUESTION, SET THAT UP. BUT YOU'RE
SORT OF DELAYING THE INEVITABLE. THE QUESTION WAS NOT
APPROPRIATELY PHRASED.
MR. NEUFELD: OKAY.
THE COURT: BUT WE'LL GET TO THAT.
****
Sidebars from April 25, 1995
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: I THINK I'VE HEARD ENOUGH ABOUT THE NEED TO
HAVE ACCURACY AND COMPLETENESS.
YOU HAVE ASKED THIS QUESTION NOW FOR ABOUT THE
EIGHTEENTH TIME IN THE LAST TWENTY MINUTES.
ALL RIGHT. YOU HAVE ESTABLISHED THE POINT. MOVE ON.
MR. NEUFELD: YOUR HONOR, JUST ONE THING --
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
MR. GOLDBERG: YOUR HONOR, I OBJECT UNDER EVIDENCE CODE
SECTION 352. ALSO CALLS FOR OPINION AND CONCLUSION. ALL SHE'S
DOING IS INTERPRETING PHOTOGRAPHS. SHE HAS NO RECOLLECTION OF
SEEING --
THE COURT: NO. BUT THAT'S -- THE CLEAR ISSUE HERE IS
WHETHER OR NOT SHE SAW THESE STAINS.
MR. GOLDBERG: SHE JUST GOT THROUGH SAYING SHE HAD NO
INDEPENDENT RECOLLECTION SEEING THEM.
THE COURT: HE'S ENTITLED TO ASK, "LOOKING AT THIS
PHOTOGRAPH, DOES IT REFRESH YOUR RECOLLECTION AS TO CONFIGURATION
-- THE MATTER IN WHICH THE CAR'S ASSEMBLED, WOULD YOU HAVE BEEN
ABLE TO SEE -- CAN YOU TELL ME IF YOU WOULD HAVE BEEN ABLE TO SEE
THESE STAINS WITH THE DOOR CLOSED? YES OR NO?"
MR. GOLDBERG: STILL CALLS FOR SPECULATION.
THE COURT: NO.
MR. GOLDBERG: SHE CAN'T INTERPRET PHOTOGRAPHS.
THE COURT: DOES IT REFRESH HER RECOLLECTION WHAT THE CAR
LOOKED LIKE, HE CAN ASK THAT QUESTION.
MR. GOLDBERG: WHETHER IT REFRESHES HER RECOLLECTION?
OKAY.
****
Sidebars from April 26, 1995
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE'RE AT THE SIDEBAR. I THINK I MADE A MISTAKE
BY PUTTING THIS MAT HERE BECAUSE YOU GUYS WILL FEEL WELCOME TO
STAND THERE AND FEEL COMFORTABLE.
MR. NEUFELD, THE APPROPRIATE WAY TO DEAL WITH A
NONRESPONSIVE QUESTION -- NONRESPONSIVE ANSWER TO YOUR QUESTION
IS TO ASK THE COURT TO STRIKE THE QUESTION AND ANSWER AND
ADMONISH THE JURY, NOT TO CUT THE WITNESS OFF. YOU HAVE A VERY
BAD HABIT OF CUTTING WITNESSES OFF, ESPECIALLY THIS WITNESS. I
HAVE ADMONISHED YOU A NUMBER OF TIMES. I DON'T WANT TO HAVE TO
DO IT IN FRONT OF THE JURY, IMPOSE SANCTIONS, BUT IF I HAVE TO, I
WILL.
MR. NEUFELD: WHAT I'M CONCERNED WITH, YOUR HONOR, IS, THIS
WITNESS VOLUNTEERED INFORMATION THAT SHE HAD --
THE COURT: KEEP YOUR VOICE DOWN.
MR. NEUFELD: THIS WITNESS VOLUNTEERED INFORMATION THE
COURT HAD ALREADY RULED WAS INADMISSIBLE IN THIS CASE; NAMELY,
THAT THEY DID A PHENO TYPE TEST ON THAT WIRE. THAT HAD BEEN THE
RULING OF THE COURT. THE PEOPLE KNEW ABOUT THAT RULING. I'M
SURE THEY MUST HAVE INFORMED THE WITNESS NOT TO BRING IT UP --
THE COURT: KEEP YOUR VOICE DOWN.
MR. NEUFELD: SORRY.
MR. GOLDBERG: EXCUSE ME, YOUR HONOR.
MR. NEUFELD: -- BRING IT UP UNLESS IT WAS EXPLICITLY
INQUIRED AS TO IN QUESTIONING. I DID NOT ASK ANY QUESTION AT ALL
THAT CAUSED HER TO START TESTIFYING TO THE PHENOLPHTALEIN TEST
RESULTS ON THAT WIRE. I SIMPLY ASKED HER ABOUT COLOR AND
COLLECTION AND SHE ALL OF A SUDDEN ON HER OWN VOLUNTEERED THAT
BUSINESS ABOUT THE PHENOLPHTALEIN TEST, WHICH IS IMPROPER.
THE COURT: HOLD ON. WHAT'S THE STATUS OF THE -- WAS THERE
ANY SUBSEQUENT TESTING DONE ON ITEM 11?
MR. GOLDBERG: NO. BUT THERE WERE SWATCHES OF -- OH, YES,
THERE WAS SUBSEQUENT TESTING. I'M SORRY. THERE WAS.
THE COURT: ITEM 11'S BEEN TESTED?
MR. GOLDBERG: IT WAS TESTED I THINK AT THE DOJ FOR A
PRESUMPTIVE TEST FOR BLOOD.
MR. NEUFELD: THAT'S ACTUALLY NOT CORRECT, OKAY. THERE'S
NEVER BEEN A CONFIRMATORY TEST ON IT, WHICH I THINK IS THE
COURT'S QUESTION, BY ANYBODY DOING DNA TESTING OR ANY
CONFIRMATORY TEST. SO THEREFORE --
THE COURT: WHAT TEST HAS BEEN DONE ON IT?
MR. GOLDBERG: I THINK IT WAS A PHENOLPHTALEIN TEST. LET
ME GO CHECK.
MR. NEUFELD: I'M WORRIED ABOUT THIS BECAUSE IT SHOULD NOT
HAVE BEEN TOLD TO THE JURY. AND FRANKLY, MR. GOLDBERG HAD A DUTY
TO ADVISE THE WITNESS THAT THOSE PHENOLPHTALEIN TESTS WERE
INADMISSIBLE UNLESS THEY WERE EXPLICITLY GONE INTO.
THE COURT: MISS CLARK.
MS. CLARK: YES, YOUR HONOR. ON THE WIRE, THE ONLY THING
THAT'S HAPPENED, ANDREA MAZZOLA DID A PRESUMPTIVE PHENOLPHTALEIN.
DOJ DID A DIFFERENT PRESUMPTIVE. THERE WAS INSUFFICIENT SAMPLE
TO DO ANYTHING FURTHER. THEY CAME UP WITH A NEGATIVE ON THE
STAIN, BUT CAME UP WITH A POSITIVE ON THE SUBSTRATE CONTROL SO
THAT YOU HAVE BASICALLY NOTHING ON THE WIRE.
MR. NEUFELD: IN OTHER WORDS, EVEN MORE IMPORTANT --
BECAUSE IN FACT WHAT HAPPENED IS THAT DOJ DID NOT GET A POSITIVE
PHENOLPHTALEIN TEST ON THE EVIDENCE. MISS MAZZOLA CLAIMS SHE
DID. SO THAT'S IT. SO IT SHOULD HAVE NEVER BEEN ALLUDED TO.
THE COURT: THIS IS A HUGE MOUNTAIN OUT OF A MOLEHILL.
MR. NEUFELD: I'M ASKING YOUR HONOR TO ORDER IT STRICKEN
AND ORDER THE JURY TO DISREGARD THOSE ANSWERS AND THOSE
QUESTIONS.
THE COURT: ALL RIGHT.
LET'S PROCEED.
MR. GOLDBERG: CAN I BE HEARD ON THAT?
THE COURT: MR. GOLDBERG, YOU WANT TO BE HEARD?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
THE COURT: MR. GOLDBERG.
MR. GOLDBERG: WELL, THE PROBLEM IS THAT HE'S -- IS THE
COURT STRIKING IT OR NOT?
THE COURT: I'M INCLINED TO.
MR. GOLDBERG: OKAY. THE PROBLEM IS, HE'S DANCING AROUND
AND AROUND AND AROUND THIS ISSUE AND THERE'S NO WAY THAT SHE CAN
EXPLAIN WHAT SHE DID WITH THAT TYPE OF PHENOLPHTALEIN TEST.
MY UNDERSTANDING OF IT IS, FROM HER TESTIMONY IN
ADDITION TO WHAT I'VE BEEN TOLD BEFORE, THAT YOU CAN'T SEE
ANYTHING ON THAT WIRE, THAT THEY -- OR SHE COULDN'T AT LEAST.
MAYBE MR. FUNG DID. I THINK MR. FUNG DID. BUT SHE PHENOED IT
AND SHE GOT A TEST. SHE'S COLLECTING ALMOST AT RANDOM FROM THE
AREA WHERE SHE GOT POSITIVE TESTS.
THE COURT: OKAY. ALL RIGHT. THEN I'M GOING TO TELL THEM
TO DISREGARD THE REPORT THAT THERE WAS A POSITIVE PHENOLPHTALEIN
RESULT.
MR. GOLDBERG: BUT THEY CAN CONSIDER WHAT SHE --
THE COURT: THE QUESTIONS ABOUT COLLECTING IT.
MR. GOLDBERG: I DO NOT UNDERSTAND WHY HE'S EVEN GETTING
INTO THAT.
MS. CLARK: THAT'S FAIR.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
WHAT IS YOUR OFFER OF PROOF AS TO WHERE WE ARE GOING
WITH THIS?
MR. NEUFELD: FIRST OF ALL, THE GOOD FAITH BASIS FOR THE
OTHER QUESTION WAS THE FORMAL REPORT PREPARED BY THE DISTRICT
ATTORNEY SAID THAT THE INTERVIEW WAS SURREPTITIOUSLY RECORDED SO
IT WASN'T A BAD FAITH OFFER.
THE COURT: I ASSUMED THAT WHICH IS WHY I ALLOWED YOU TO DO
THAT.
MAY I SEE THE REPORT, PLEASE?
MR. NEUFELD: SURE.
(BRIEF PAUSE.)
THE COURT: ALL RIGHT. I'VE GOT THIS ITEM WHICH IS NOW
1120.
MR. NEUFELD: OKAY.
AND AT LEAST I THINK IT SUPPORTS MY GOOD FAITH BASIS
FOR ASKING THE QUESTION ABOUT WHETHER IT WAS SURREPTITIOUSLY
TAPE-RECORDED.
THE COURT: I AGREE.
MR. NEUFELD: OKAY.
THE ONLY PLACE I'M GOING WITH IT, YOUR HONOR, GIVEN
THE COURT'S LIMITING INSTRUCTIONS FROM THE BENCH BEFORE, IS TO
SHOW THAT SHE WAS ASKED BEFORE.
MS. CLARK: COULD COUNSEL KEEP HIS VOICE DOWN, PLEASE, MR.
NEUFELD.
THE COURT: YES, PLEASE.
MR. NEUFELD: I'M SORRY, YOUR HONOR. THANK YOU, MISS
CLARK.
SHE WAS ASKED ON NUMEROUS OCCASIONS AT ANY OF THE
SESSION WHERE IS MISS KESTLER WAS PRESENT WERE ANY OTHER PEOPLE
PRESENT? SHE WAS ASKED THIS MORNING WHETHER OR NOT AT ANY
SESSION WHERE MISS KESTLER WAS PRESENT WAS ANYTHING OTHER THAN
POINTERS DISCUSSED?
THE COURT: ALL RIGHT.
WE HAVE ESTABLISHED -- WE HAVE ESTABLISHED TWO
THINGS:
ONE, THE MEETING DID IN FACT TAKE PLACE. TOOK PLACE
AT DENNY'S ACROSS THE STREET FROM PIPER TECH.
AND IS THERE ANY OTHER INCONSISTENCY IN THIS
STATEMENT YOU WANT TO GO AFTER?
MR. NEUFELD: UMM --
THE COURT: THE ONE THAT IS APPARENT TO THE COURT IS WHERE
SHE WAS --
MR. NEUFELD: I'M SORRY, I THOUGHT YOU WERE ASKING ME. I
APOLOGIZE.
THE COURT: THE ONE THAT APPEARS APPARENT TO THE COURT IS
THE ONE THAT SAYS SHE NEVER HANDLED MR. SIMPSON'S BLOOD SAMPLE.
THAT APPEARS TO BE THE ONE INCONSISTENT STATEMENT.
MR. GOLDBERG: SHE HASN'T TESTIFIED IN COURT THAT SHE HAS
EVER HANDLED THE DEFENDANT'S BLOOD SAMPLE, NEITHER ON DIRECT OR
ON CROSS.
MR. NEUFELD: MR. FUNG TESTIFIED THAT SHE HANDLED IT
BECAUSE MR. FUNG TESTIFIED THAT SHE CARRIED IT OUT IN A GARBAGE
BACK.
MR. GOLDBERG: BUT SHE HAS TESTIFIED THAT SHE DID NOT KNOW
THAT. AT LEAST THAT IS THE IMPLICATION OF HER TESTIMONY.
THE COURT: WHY DON'T YOU ASK HER THE QUESTION, IF SHE DID
HANDLE THE BLOOD.
MR. GOLDBERG: YOU SEE, THE OTHER THING, YOUR HONOR, IS
THAT TO THE EXTENT THAT SHE NOW BELIEVES THAT SHE HANDLED THE
BLOOD VIAL, THAT WOULD PROBABLY BE BASED OF NECESSITY ON HER
VIEWING OF THE TAPES AND LOOKING AT LAB REPORTS AND OTHER NOTES
THAT HAPPENED AFTER THIS INTERVIEW TOOK PLACE.
THE COURT: ALL RIGHT.
WELL, I THINK BASED UPON WHAT IS HERE, YOU CAN FAIRLY
ASK IF SHE DID IN FACT AT ANY TIME TO HER KNOWLEDGE HANDLE THE
DEFENDANT'S BLOOD SAMPLE. YOU CAN ASK THAT.
MR. GOLDBERG: TO YOUR KNOWLEDGE ON THE 13TH AND THE 14TH
-- I MEAN ON THE 13TH?
MR. NEUFELD: ALSO AS OF NOVEMBER 21, 1994, DID SHE
MAINTAIN THE POSITION THAT SHE HAD EVER HANDLED IT?
THE COURT: WHY DON'T YOU JUST ASK HER THE OPEN-ENDED
QUESTION DID SHE EVER HANDLE THE DEFENDANT'S BLOOD SAMPLE.
MR. NEUFELD: OKAY. THEN I CAN FOLLOW UP.
THE COURT: WE WILL SEE WHAT COMES AFTER THAT.
MR. COCHRAN: SINCE WE ARE UP HERE, JUDGE, AND YOU DON'T
LIKE SIDE BARS, IF THE EVIDENCE DOESN'T COME OVER FROM PARKER
CENTER, I THOUGHT YOU HAD INDICATED TO US YOU WOULD HAVE THOSE
TWO SHORT WITNESSES.
WHY DON'T WE JUST TAKE THEM AND CALL HER BACK.
THE COURT: OR WHY DON'T WE START WITH REDIRECT.
MR. GOLDBERG: WE CAN DO THAT.
MR. COCHRAN: WE CAN DO THAT.
THE COURT: LET'S JUST KEEP THIS WITNESS HERE. I DON'T WANT
TO JUMP WITNESSES BACK AND FORTH.
MR. COCHRAN: ALL RIGHT.
THE COURT: LET'S SEE WHAT HAPPENS.
MR. NEUFELD: ALL RIGHT.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT. OVER AT THE SIDE BAR.
MR. GOLDBERG.
MR. GOLDBERG: YOUR HONOR, ON CROSS-EXAMINATION COUNSEL
ELICITED THAT 15 AND 16 WENT INTO THE PLASTIC BAG WHICH I THINK
WENT BEYOND A LITTLE BIT WHERE PREVIOUSLY RULINGS HAD LEFT US.
I THINK NOW THERE IS SOME RELEVANCE, OBVIOUS
RELEVANCE TO HAVING AT LEAST A GENERIC DESCRIPTION OF 15 AND 16,
BUT ARE THEY METAL, ARE THEY PAPER, WHAT GENERAL SIZE ARE THEY,
HOW MUCH DO THEY WEIGH.
AND THAT IS WHAT I WOULD LIKE TO DO WITH THIS
WITNESS.
THE COURT: MR. NEUFELD, WHAT IS THE DEFENSE POSITION?
MR. NEUFELD: YOUR HONOR, I DON'T BELIEVE I WENT BEYOND THE
LIMITATION. IT WAS SIMPLY A QUESTION OF SHOWING THAT 15 AND 16
WERE PUT IN THE BAG, AND OUR SUGGESTION IS THAT IT WAS EITHER 15
AND 16 MAY HAVE BEEN PUT IN THE BAG AND THE NUMBERS MAY HAVE BEEN
PUT IN THE BAG, BUT THAT DOESN'T MEAN THAT THE BAG WAS USED FOR
THE BLOOD VIAL.
AND IT WAS LIMITED FOR THAT PURPOSE. I DON'T BELIEVE
WE HAVE OPENED THE DOOR FOR THEM TO GO BEYOND ANY FURTHER
DESCRIPTION OF 15 AND 16.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. GOLDBERG: WELL, THE RELEVANCE IS THAT NOW WE HAVE TO
SHOW THAT THE APPEARANCE AND WEIGHT OF THE BAG IS INCONSISTENT
WITH ONLY CONTAINING 15 AND 16.
I MEAN, IF AN ITEM OF EVIDENCE IS TRULY SUPPRESSED,
IT IS GONE.
YOU DON'T ALLUDE TO IT AND SAY, WELL, THERE IS AN
ITEM 15 AND 16. WE ARE NOT GOING TO TELL YOU WHAT IT IS, BUT IT
EXITS ITSELF. WE COLLECTED FROM IT HERE AND THERE AND WE WON'T
TELL YOU WHAT IT IS.
MR. NEUFELD: YOU BROUGHT IT IN.
THE COURT: WAIT, WAIT, WAIT.
MR. GOLDBERG: HE PUT IT IN THE BAG.
THE COURT: BACK THEN THEY OFFERED TO STIPULATE AND LET THE
STUFF IN AND YOU DECLINED TO STIPULATE.
IS THERE A REASON FOR THAT? KNOWING ALL THE ISSUES
THAT ARE INVOLVED IN THIS CASE, IS THERE A REASON, OTHER THAN
JUST TO BE SPITEFUL TO EACH OTHER?
MS. CLARK: MAY I ADDRESS THE THAT ISSUE, YOUR HONOR?
THE COURT: NO.
MR. GOLDBERG: THE REASON, MORE THAN NOT STIPULATING TO IT
AT THAT POINT IN TIME, WAS THAT OUR POSITION WAS THAT, AS YOUR
HONOR KNOWS, AND I HATE TO GO OVER OLD GROUND, THAT I HAD -- I
HAD MISTAKENLY ELICITED THIS INFORMATION, IT WAS IN VIOLATION OF
AGREEMENT --
THE COURT: UH-HUH.
MR. GOLDBERG: -- NOT TO DO SO, IT SHOULD NOT HAVE BEEN
DONE, BUT THAT THERE WAS NO PREJUDICE.
AND YOUR HONOR, I KNOW THE COURT DISAGREES WITH US,
BUT RESPECTFULLY, IT WAS OUR POSITION THAT THE SANCTION THAT WE
WERE GIVEN WAS NOT APPROPRIATE, IN LIGHT OF THE LACK OF
PREJUDICE, AND WE WANTED TO HAVE THAT SANCTION REMOVED.
THE COURT: SO WHAT YOU ARE ASKING FOR AT THIS POINT IS THE
OPPORTUNITY TO PHYSICALLY DESCRIBE WHAT IT IS, THAT IT IS A PIECE
OF THIN CARDBOARD.
LET'S SEE. WE ARE TALKING ABOUT AN AIRLINE TICKET
AND A BAGGAGE --
MR. GOLDBERG: BAGGAGE.
MR. NEUFELD: WE HAVEN'T SEEN IT, YOUR HONOR.
I THINK BEFORE SHE EVEN DOES THAT, AT LEAST THEY
SHOULD BE PRODUCED.
THE COURT: I AGREE. LET'S SEE THEM.
MR. GOLDBERG: WE DID HAVE THEM DOWN HERE AND I SENT THEM
BACK TO SID NOT TOO LONG AGO.
THE COURT: WE'VE GOT ABOUT TWENTY MINUTES LEFT IN THE
COURT DAY. LET'S SEE THEM TOMORROW MORNING FIRST THING.
MR. NEUFELD: YOUR HONOR --
THE COURT: ALSO LET ME ASK ANOTHER QUESTION.
WHEN ARE WE GOING TO SEE THESE ITEMS THAT WE ARE
EXPECTING?
MR. GOLDBERG: YOUR HONOR, I SPOKE TO MR. MATHESON DURING
THE NOON BREAK AND HE TOLD ME THAT HE HAS TWO CRIMINALISTS THAT
ARE ASSIGNED TO WORKING ON THIS PROJECT.
THE COURT: OKAY.
MR. GOLDBERG: THEY WERE PULLED OFF A PROJECT WHERE THE
LAPD WAS ASKED TO GET TEST RESULTS ON A CHILD MOLEST DEFENDANT.
THE COURT: THAT IS NOT MY QUESTION.
MR. GOLDBERG: I'M JUST TELLING THE COURT THAT SO YOUR
HONOR KNOWS WE ARE NOT DELAYING AND WE ARE --
THE COURT: MR. GOLDBERG, THAT IS NOT MY QUESTION. MY
QUESTION IS WHAT IS THE ETA?
MR. GOLDBERG: HE SAID THAT HE DID NOT BELIEVE THAT WE
COULD GET IT THIS AFTERNOON.
MR. NEUFELD: CAN I --
THE COURT: FIRST THING -- OFF THE RECORD.
(DISCUSSION HELD OFF THE RECORD.)
THE COURT: BACK ON THE RECORD.
ALL RIGHT. THE ETA THEN, THAT SHOULD WORK OUT. WHEN
TOMORROW?
MR. GOLDBERG: I DIDN'T ASK THEM THAT, BUT I WAS ASSUMING
HE WAS TALKING ABOUT MORNING.
THE COURT: I'M ASSUMING THAT THEY CAN GET THE STUFF HERE
8:30 TOMORROW MORNING.
MR. NEUFELD: IN FACT, I WOULD LIKE TO HAVE THAT 25 MINUTES
SO I CAN REQUEST WE DON'T WASTE ANY OF THE COURT'S TIME AND THE
JURY'S TIME BETWEEN 8:30 AND 9:00 A.M.
THE COURT: THAT IS WHY I'M SUGGESTING 8:30.
MR. NEUFELD: GREAT.
THE COURT: WHEN WE CONCLUDE, WE WILL DO THAT.
I AGREE WITH YOU, YOU MAY BE ENTITLED TO GO INTO THE
DIMENSIONS, THE WEIGHT, THE MATERIAL.
LET'S SEE WHAT THEY ARE.
SO LET'S FINISH UP THE TWENTY MINUTES.
MR. NEUFELD: YOUR HONOR, ONE OTHER ITEM.
SEVERAL TIMES WHEN I WAS ASKED -- I WALKED UP THERE
WHILE MR. GOLDBERG WAS ASKING QUESTIONS OF THE WITNESS ON
REDIRECT WHEN MARCIA CLARK WAS STANDING NEXT TO HIM AND SHE WAS
GIGGLING AND LAUGHING, AND SHE WAS DOING THAT VISIBLY REPEATEDLY.
THE COURT: KEEP YOUR VOICE DOWN.
MR. NEUFELD: SHE WAS DOING IT REPEATEDLY WHILE I WAS
ASKING QUESTIONS.
THE COURT: IF YOU WILL GIVE ME -- I DID NOT OBSERVE
ANYTHING LIKE THAT.
IN FACT, I'VE OBSERVED THAT MISS CLARK APPEARS TO ME
TO BE UNDER THE WEATHER TODAY AND SO I DIDN'T OBSERVE THAT, BUT
IF YOU WILL BRING MY ATTENTION TO IT OR WAVE AT ME, I WILL BE
HAPPY TO LOOK OVER THAT WAY.
MS. CLARK: MAY I INDICATE TO THE COURT THAT THIS DID NOT
HAPPEN. MR. NEUFELD IS ON SOME OTHER PLANET.
MR. GOLDBERG TURNED TO LOOK AT ME QUIZZICALLY AND
SUPPOSE IT WAS INTO HIS EAR THAT I WAS GIGGLING AND LAUGHING. HE
DIDN'T REMEMBER SEEING THIS OBVIOUSLY.
THE COURT: MISS CLARK, I DIDN'T SEE ANYTHING, AND COUNSEL,
I WOULD LIKE TO SPEND THE REST OF THE TWENTY MINUTES WE HAVE LEFT
IN THE COURT DAY ASKING QUESTIONS.
MR. COCHRAN: I AGREE WITH THAT, YOUR HONOR.
JUST I AM NOTICING 2179. SHE SEEMS LIKE MORE
PREOCCUPIED.
THE COURT: I HAVE BEEN WATCHING HER.
MR. COCHRAN: SHE TOLD US EARLIER -- SHE DOESN'T SEEM LIKE
SHE IS THE SAME, AND I JUST WANTED TO POINT OUT TO YOU, SHE SEEMS
LIKE LOOKING -- JUST LOOKING AHEAD AND HASN'T TAKEN ANY NOTES ALL
DAY AND PREOCCUPIED.
THE COURT: I HAVE BEEN WATCHING.
****
Sidebars from April 27, 1995
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
WHERE ARE WE GOING TO GO WITH THIS?
MR. COCHRAN: WE'RE WILLING I THINK JUST TO GO FORWARD AND
WE'LL STIPULATE TO ANY WITHDRAWAL OF ANY OBJECTION.
THE COURT: OKAY.
MR. COCHRAN: SO YOU CAN MARK THEM. BUT THAT'S IT. THAT'S
WHAT WE WERE TALKING ABOUT. WE WERE TRYING TO SAVE TIME.
THE COURT: DO I HAVE TO TELL THEM I PREVIOUSLY INSTRUCTED
THEM TO IGNORE IT OR JUST LET IT LIE?
MR. NEUFELD: JUST LET IT LIE I THINK BECAUSE OBVIOUSLY
IT'S COMING IN.
MS. CLARK: YOU KNOW WHAT YOU COULD DO? JUST SAY THE
PARTIES AGREE THAT --
THE COURT: 15 AND 16 ARE GOING TO BE SHOWN TO YOU.
MS. CLARK: WITHOUT REMINDING THEM, JUST SAY THE PARTIES
AGREE.
MR. COCHRAN: THE PARTIES HAVE AGREED 15 AND 16 CAN COME
IN.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT.
WE'RE OVER AT THE SIDEBAR.
MR. GOLDBERG, WHAT IS YOUR PURPOSE?
MR. GOLDBERG: YES.
ON CROSS-EXAMINATION, MR. NEUFELD ASKED ABOUT THE
PORTION OF THE DIRECT EXAMINATION WHERE SHE ADMITTED THAT YOU CAN
DROP SWATCHES AND SAID THAT THE ONLY REASON THAT YOU ADMITTED
THAT WAS BECAUSE YOU KNEW IT WAS ON VIDEOTAPE AND YOU KNEW THAT
WE HAD THAT VIDEOTAPE AND POSSIBLY WERE GOING TO PLAY IT.
I WANT TO SHOW -- SHE ADMITTED ALSO SHE COULD DROP
THE TWEEZERS. IT'S NOT ON ANY VIDEOTAPE, NOT ANY STILL
PHOTOGRAPHY. AND WHEN YOU BRING OUT A PORTION OF THE STATEMENT,
UNDER THE RES GESTAE RULE, WE GET TO BRING UP THE OTHER STORY.
IT'S FAIR AND PROPER IN LIGHT OF CROSS-EXAMINATION.
THE COURT: OBJECTION SUSTAINED.
