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LOS ANGELES, CALIFORNIA; THURSDAY, APRIL 6, 1995 10:40 A.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. MR. SIMPSON IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BLASIER, MR. NEUFELD, MR. SCHECK, PEOPLE REPRESENTED BY MISS CLARK, MR. DARDEN AND MR. GOLDBERG. THE MATTER IS HERE FOR TRIAL. THE JURY IS NOT PRESENT. COUNSEL, THIS MORNING, I WAS ADVISED BY THE SHERIFF'S DEPARTMENT THAT TWO OF OUR JURORS ARE NO GO MEDS AND THAT THEY WILL NOT BE ABLE TO COME TO COURT TODAY. UNDER MOST CIRCUMSTANCES, WE WOULD REPLACE THOSE JURORS WITH ALTERNATES. HOWEVER, GIVEN THE LENGTH OF THIS TRIAL AND THE NUMBER OF ALTERNATES THAT WE HAVE AVAILABLE, IT WOULD BE THE COURT'S INCLINATION TO STAND IN RECESS TODAY AS FAR AS THE EVIDENCE PRESENTATION IS CONCERNED AND HOPE THAT THE JURORS RECOVER TO COME TO COURT TOMORROW. AND I WILL ADVISE YOU BY THE CLOSE OF BUSINESS TODAY AS TO THEIR STATUS. ANY COMMENT FROM THE PEOPLE? MS. CLARK: NO, YOUR HONOR. THE COURT: ANY COMMENT FROM THE DEFENSE? MR. COCHRAN: YES, YOUR HONOR. WE WOULD ENDORSE THAT COURSE OF CONDUCT. WE THINK THAT GIVEN THE LENGTH OF THE TRIAL AND STATUS OF ONLY HAVING SIX ALTERNATES, WE WOULD LIKE TO SEE THEM RECOVER HOPEFULLY AS SOON AS POSSIBLE. THE COURT: ALL RIGHT. I'LL ASK THAT THE SHERIFF'S DEPARTMENT GIVE ME AN UPDATE AT NOON TODAY. MR. COCHRAN: VERY WELL, YOUR HONOR. THE COURT: ALL RIGHT. WE ALSO HAD -- LET'S SPEND THE TIME THAT WE HAVE THEN TOGETHER THIS MORNING TO RESOLVE SOME OF THE EVIDENTIARY DISPUTES. WE HAD -- WE CLOSED YESTERDAY'S SESSION WITH REGARD -- ARGUING OVER A VIDEOTAPE, EXCERPTS FROM A VIDEOTAPE. AND -- MR. SCHECK. MR. SCHECK: MR. GOLDBERG JUST INFORMED ME AS YOU WERE WALKING IN THAT THE PROSECUTION HAS PREPARED AN ENHANCEMENT OF THE VIDEO THAT HAD BEEN WITH ALL OF US, AND WE WOULD LIKE AN OPPORTUNITY TO SEE THAT BEFORE WE MAKE AN ARGUMENT BEFORE THE COURT. THE COURT: ALL RIGHT. SEEMS TO MAKE SENSE. MR. GOLDBERG. MR. GOLDBERG: THAT'S FINE. THE COURT: ALL RIGHT. MR. FAIRTLOUGH, LET'S SEE THE ENHANCED VIDEOTAPE. MR. FAIRTLOUGH: YOUR HONOR, IF I MAY HAVE A MOMENT TO REMOVE THE BOARD. IT'S BLOCKING THE VIEW OF THE LARGE MONITOR. THE COURT: I DON'T BELIEVE THAT'S NECESSARY. COUNSEL HAVE THEIR'S. (AT 10:45 A.M., A VIDEOTAPE WAS PLAYED.) THE COURT: ALL RIGHT. IS THAT IT, MR. FAIRTLOUGH? MR. FAIRTLOUGH: THERE ARE SOME ADDITIONAL REPEAT FRAMES ON THAT WITH THAT. WOULD YOU LIKE TO SEE THEM? THE COURT: LET'S SEE IT. (AT 10:47 A.M., THE VIDEOTAPE CONTINUES PLAYING.) (AT 10:48 A.M., THE PLAYING OF THE VIDEOTAPE CONCLUDED.) MR. FAIRTLOUGH: THAT IS IT, YOUR HONOR. THE COURT: ALL RIGHT. WELL, WE STARTED OUT AS A PROSECUTION OBJECTION TO THE VIEWING OF THE INITIAL VIDEOTAPE CLIPS. WHAT'S THE PEOPLE'S POSITION AT THIS TIME AFTER -- MR. GOLDBERG, AFTER YOU'VE HAD THE OPPORTUNITY TO REVIEW THE CLIPS THAT ARE GOING TO BE OFFERED BY THE DEFENSE? MR. GOLDBERG: WELL, CAN I SPEAK FROM HERE, YOUR HONOR, OR DO I HAVE -- THE COURT: CERTAINLY. NO. MR. GOLDBERG: THANK YOU. WE WOULD OBJECT UNDER EVIDENCE CODE SECTION 352 AND ALSO ON THE GROUNDS OF RELEVANCE BECAUSE THIS DOES SEEM TO BE A CLASSIC INSTANCE WHERE WHAT THE DEFENSE INTENDS TO INTRODUCE AND THE PURPOSE FOR WHICH THEY WANT TO INTRODUCE IT WOULD BE HIGHLY MISLEADING TO THE JURY. THERE'S SEVERAL WAYS THAT WE KNOW WHAT THE TRUE SET OF FACTS IS HERE. MR. SCHECK: EXCUSE ME, YOUR HONOR. I'M SORRY TO INTERRUPT, MR. GOLDBERG. SHOULD THE WITNESS BE HERE FOR THIS, YOUR HONOR? THE COURT: ALL RIGHT. MR. FUNG, WHY DON'T YOU STEP OUTSIDE. (THE WITNESS COMPLIES.) MR. GOLDBERG: AND I'LL DIVIDE THEM UP INTO THREE BASIC CATEGORIES. ONE IS BASED UPON THE STILL PHOTOGRAPHY, TWO IS BASED UPON THE ENHANCED VIDEOTAPE AND THEN THIRD, BASED UPON WHAT MR. FUNG WOULD TESTIFY IF HE WERE ASKED THESE QUESTIONS IN ACCORDANCE WITH THE OFFER OF PROOF AS I UNDERSTAND IT FROM HAVING TALKED TO HIM. NOW, TO FIRST GO THROUGH THE ISSUE OF THE STILL PHOTOGRAPHY, THERE ARE A COUPLE EXHIBITS THAT I THINK ARE TELLING HERE. AND I DON'T KNOW WHETHER WE'VE ALREADY INTRODUCED THEM. I DON'T THINK WE HAVE, WHICH I WOULD LIKE TO MARK FOR IDENTIFICATION. I THINK IT WOULD BE PEOPLE'S 179. THE COURT: 179. MR. GOLDBERG: IS A PHOTOGRAPH THAT CONTAINS A -- THREE CARDS, AND I'M GOING TO WRITE A 179 ON THE REAR OF THE PHOTOGRAPH. (PEO'S 179 FOR ID = PHOTOGRAPH) MR. GOLDBERG: WE HAVE ANOTHER PHOTOGRAPH DEPICTING A SIMILAR VIEW, BUT IT ONLY HAS ONE CARD IN IT, AS PEOPLE'S 180. I'VE PLACED A 180 ON THE REAR OF THAT. THE COURT: ALL RIGHT. (PEO'S 180 FOR ID = PHOTOGRAPH) MR. GOLDBERG: I THINK THESE TWO ARE SUFFICIENT, YOUR HONOR. DO YOU HAVE THE OTHER -- MR. SCHECK: THERE'S SOME OTHER VIEWS OF THIS. MAYBE FOR THE SAKE OF COMPLETENESS, YOU WANT TO PUT THEM ALL -- THE COURT: ALL RIGHT. MR. GOLDBERG, YOU'VE MARKED ADDITIONAL EXHIBITS 179 AND 180. MAY I SEE THOSE PHOTOGRAPHS, PLEASE? MR. GOLDBERG: YES. DOES THE COURT WANT ME TO APPROACH THE BENCH OR PUT THEM ON THE ELMO? THE COURT: YES. MR. GOLDBERG: OKAY. (BRIEF PAUSE.) MR. GOLDBERG: I THINK THEY STILL HAVE 179. THE COURT: MAY I SEE THE TWO PHOTOGRAPHS, PLEASE? MR. GOLDBERG: YEAH. WE'RE NOW TRYING TO FIND 179. COUNSEL THINKS HE GAVE IT BACK TO ME AND I ONLY HAVE 180 NOW, BUT I'LL GIVE THE COURT 180. (BRIEF PAUSE.) MR. GOLDBERG: NO. I DO HAVE 179. I'M SORRY. I'M GOING TO GIVE THE COURT 179. THE COURT: ALL RIGHT. MR. GOLDBERG. MR. GOLDBERG: YOUR HONOR, IT'S VERY EASY LOOKING AT THE PHOTOGRAPHS TO DETERMINE BEFORE AND AFTER. SPECIFICALLY, IF THE COURT LOOKS AT THE EVIDENCE CARDS AND THEN COMPARES THEM TO WHAT THE COURT JUST SAW IN TERMS OF THE VIDEOTAPE, WE SAW MR. FUNG PLACING DOWN THE CARD NEXT TO THE CAP, WHICH I BELIEVE WAS 103, CARD NUMBER 103. WHAT THE COURT SEES IN THESE TWO PHOTOGRAPHS IS IN 179, THE COURT SEES THAT THAT CARD -- EXCUSE ME -- IN 180, THE COURT SEES THAT THAT CARD IS NOT THERE. SO IT'S A BEFORE PHOTOGRAPH. AND THEN IF THE COURT LOOKS AT 179, THE COURT SEES THAT THE CARD IS THERE. SO IT'S AN AFTER PHOTOGRAPH. IF THE COURT COMPARES BOTH PHOTOGRAPHS AND LOOKS AT THE GLOVES IN THE RESPECTIVE PHOTOGRAPH -- THE GLOVE IN THE RESPECTIVE PHOTOGRAPHS, THE COURT CAN SEE IT'S AN IDENTICAL LOCATION. SO IT IS IN THE LOCATION IN WHICH IT HAS BEEN TESTIFIED TO BOTH BEFORE MR. FUNG PUT THE CARD DOWN AND AFTER MR. FUNG PUT THE CARD DOWN. SO BASED UPON THE STILL PHOTOGRAPHY, WE KNOW THAT GLOVE'S LOCATION WAS WHERE THE TESTIMONY HAS ESTABLISHED IN THIS CASE AND THE PHOTOGRAPHS HAVE ESTABLISHED IN THIS CASE. SO THAT'S THE FIRST THING THAT WE WOULD ASK THE COURT TO TAKE INTO ACCOUNT. THE SECOND THING IS, IF THE COURT LOOKS AT THE VIDEOTAPE ITSELF, THE ENHANCEMENT, AND COMPARES THE VIDEOTAPE TO SOME OF THE BETTER PICTURES HERE SUCH AS 180, IT BECOMES APPARENT THAT WHAT WE ARE LOOKING AT, WHAT I CALL THE ARTIFACT THAT WE'RE LOOKING AT IS IN THIS AREA WHERE THE LEAVES ARE IN FRONT OF THE 102 CARD AND THE BLOOD, AND WHAT WE HAVE IS A SITUATION WHERE TWO FACTORS ARE AT PLAY. NUMBER ONE, THAT THE CAMERA IS ACROSS THE STREET. IT'S TAKEN -- TAKING PICTURES FROM A DISTANCE OF MAYBE 50 FEET OR SO I WOULD ESTIMATE. AND THERE'S A FOR SHORTENING EFFECT WHEN YOU ARE DOING THAT ANALOGOUS TO WHEN A PICTURE IS TAKEN BEHIND THE CATCHER OF THE PITCHER. HE APPEARS TO BE A LOT CLOSER THAN HE REALLY IS. DOESN'T APPEAR TO BE 90 FEET AWAY AT THE TIME. AND, NUMBER TWO, THAT WE HAVE A SITUATION WITH THIS VIDEO PHOTOGRAPHY WHERE THE WIDE ANGLE LENS IN ORDER TO GET A CLOSE-UP OF THIS IS BRINGING MORE LIGHT INTO THE LENS -- NOW, I'M NOT AN EXPERT ON THIS, BUT THIS IS WHAT I UNDERSTAND -- AND THE CONTRAST THAT YOU HAVE BETWEEN DARK AND LIGHT IS INCREASED. SO DARK AREAS LOOK DARKER, LIGHT AREAS LOOK LIGHTER, IN MUCH THE SAME WAY WHEN ONE GOES OUT OF A MOVIE THEATER, DARK MOVIE THEATER; THAT THE CONTRAST IS OFF AND EVERYTHING LOOKS VERY BRIGHT, IT GETS WHITED OUT WHEN YOU STEP OUTSIDE. IF THE COURT TAKES ANOTHER LOOK AT THE VIDEOTAPE -- I DON'T KNOW WHETHER YOUR HONOR NOTICED THIS -- THERE'S ALSO SOME OTHER OBJECTS THAT APPEAR OR ARTIFACTS THAT APPEAR IN THE VIDEOTAPE THAT WE CAN QUITE POSITIVELY IDENTIFY AS BEING BLOOD, PARTICULARLY IN THE AREA RIGHT UP AGAINST WHERE THE SHEET MEETS THE RISER OF THE FIRST STEP. THE BLOOD BECOMES VERY DARK, ALMOST BLACK LOOKING, GIVING MUCH THE SAME CONTRAST AS THE AREA THAT THE DEFENSE WANTS TO BELIEVE IS THE POSSIBLE GLOVE. AND THEN TO MOVE TO THE THIRD FACTOR, YOUR HONOR, WHICH IS THE TESTIMONY OR MY OFFER OF PROOF TO THE TESTIMONY OF DENNIS FUNG. DENNIS FUNG IS SEEN IN THE VIDEOTAPE PLACING DOWN THE CARD NEXT TO THE KNIT CAP. AT THAT MOMENT IN TIME, HE IS LOOKING DOWN. HE DID NOT SEE THE GLOVE THERE AND IT WOULD HAVE BEEN RIGHT IN FRONT OF HIM AND THERE'S NO WAY HE COULD HAVE MISSED IT IF IT HAD BEEN THERE. AND HE WOULDN'T BE PLACING THE CARD DOWN IN THE LOCATION THAT HE'S PUTTING IT IF THE GLOVE HAD BEEN THERE. THE CARD IS PLACED IN THE DIRT NEXT TO WHERE THE GLOVE WAS. HE WOULDN'T BE -- HE WOULD BE PUTTING IT ON THE BLANKET IF THE GLOVE WERE THERE. SO BASED UPON THOSE THREE FACTORS, YOUR HONOR, IT IS VERY CLEAR THAT WHAT WE HAVE HERE IS A SITUATION IN WHICH THERE'S DISTORTION IN THIS VIDEOTAPE AND WHERE WE'RE GETTING SOMETHING THAT IS AN ARTIFACT OF THE VIDEOTAPE AS A PRODUCT PROBABLY OF THE PHENOMENA THAT I JUST DESCRIBED TO YOUR HONOR AND WHERE THE STILL PHOTOGRAPHY IN THE TESTIMONY WOULD ESTABLISH FAIRLY CONCLUSIVELY THAT THE GLOVE WAS IN THE SAME LOCATION BOTH BEFORE AND AFTER. AND ANOTHER THING I WOULD LIKE TO POINT OUT THAT I FORGOT IS THAT THE COURT CAN ALSO NOTICE BY LOOKING AT THE VIDEOTAPE THAT YOU CAN SEE THE PHOTOGRAPHER IN THE FRAME. I BELIEVE HE'S ON THE LEFT SIDE OF THE SCREEN AS THE COURT'S LOOKING AT THE SCREEN. SO HE TOOK THESE PHOTOS, THE STILL PHOTOS THAT WERE CUT INTO THE ENHANCED VERSION CONTEMPORANEOUSLY WITH THAT VIDEOTAPE BECAUSE YOU CAN SEE HIM THERE. AND THE STILL VERSIONS THAT THE COURT IS SEEING IN 179, FOR EXAMPLE, CLEARLY SHOW THAT WHAT WE HAVE IN THE GENERAL VICINITY OF WHERE THIS ARTIFACT IS ARE THE LEAVES AND BLOOD SPOTS AND NOT A GLOVE. THE COURT: MR. SCHECK. MR. SCHECK: YOUR HONOR, I THINK THAT ALL THE ARGUMENTS THAT MR. GOLDBERG MADE GO TO WEIGHT, NOT ADMISSIBILITY. AS I INDICATED TO THE COURT BEFORE, I'VE LOOKED AT THESE VIDEOTAPES A LOT AND THESE STILL PHOTOGRAPHS AS WELL. THE FIRST ARGUMENT THAT MR. GOLDBERG MAKES HAS TO DO WITH THE MOVEMENT OF CARDS. AND HE'S SAYING WELL, IF MR. FUNG PUT -- THAT WE SEE IN THE VIDEOTAPE HE MOVED THE CARD -- PUT A CARD DOWN IN ONE PARTICULAR PLACE AND THEREFORE THAT MEANS THAT THIS MUST BE AN ARTIFACT. YOUR HONOR, THERE'S SOME OTHER PHOTOGRAPHS HE DIDN'T SHOW YOU THAT I THINK I SHOULD. WHAT SHOULD WE NUMBER THESE? THE CLERK: 1076 IS YOUR NEXT ONE. MR. SCHECK: 1076 AND 1077. (DEFT'S 1076 FOR ID = PHOTOGRAPH) (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) MR. SCHECK: PEOPLE'S 170 -- I'M INFORMED THAT ONE OF THEM IS PEOPLE'S 170. (BRIEF PAUSE.) THE COURT: ALL RIGHT. MAY I SEE THE PHOTOGRAPH? MR. GOLDBERG: YES. YOUR HONOR, DO YOU WANT ME TO -- MR. SCHECK: TO SAVE SOME TIME, MAYBE I'LL JUST MARK ANOTHER ONE. 1077. (DEFT'S 1077 FOR ID = PHOTOGRAPH) (BRIEF PAUSE.) THE COURT: THANK YOU. (BRIEF PAUSE.) THE COURT: ALL RIGHT. MR. SCHECK: I THINK THE COURT CAN SEE FROM THOSE PHOTOGRAPHS THAT THERE WERE DIFFERENT SHOTS TAKEN AT DIFFERENT TIMES AND THE CARDS WERE MOVED IN A VARIETY OF DIFFERENT POSITIONS SO THAT I DON'T THINK THAT AN ARGUMENT BY THE PROSECUTION THAT ONE CAN MAKE ANY PARTICULAR INFERENCES FROM THE PARTICULAR PLACEMENT OF A CARD AT ANY PARTICULAR TIME HOLDS ANY WATER HERE. I THINK THAT THAT'S JUST A QUESTION OF WEIGHT AS TO -- AND THE WITNESS' RECOLLECTION AS TO WHAT HE'S DOING AT A PARTICULAR TIME. I THINK THAT THE KEY ISSUE HERE IS -- IS THAT THE GLOVE ON THE BLANKET. I'VE LOOKED AT THE VIDEOTAPE. IT LOOKS TO ME LIKE IT'S THE GLOVE ON THE BLANKET. I'VE LOOKED AT THESE PHOTOGRAPHS OF THE DEBRIS. THEY'RE GREEN LEAVES. THE ISSUE MR. GOLDBERG ARGUES, WELL, MR. FUNG DID NOT SEE THE GLOVE THERE. THAT'S WHAT HE'S GOING TO TESTIFY TO. THAT'S WHAT HE HAS TESTIFIED TO, AND HE WOULDN'T BE PUTTING CARDS DOWN IN THE FASHION THAT HE'S DOING IF HE SAW THE GLOVE THERE. I MEAN THE PROBLEM HERE, YOUR HONOR, IS THAT MR. FUNG OR SOME -- THE PHOTOGRAPHERS, WHOEVER ELSE WAS AT THE SCENE, SOMEBODY MOVED THAT GLOVE BACK INTO THE POSITION THAT WE SEE IT ON THE CLOSE-UP PHOTOGRAPH. WE KNOW THIS GLOVE HAS BEEN MOVED. WE SEE TWO PHOTOGRAPHS, THE ONE WHERE FUHRMAN IS POINTING AT IT, POSITION NO. 1, THE SECOND PHOTOGRAPH, POSITION NO. 2. WE KNOW THAT MR. GOLDMAN'S BODY WAS DRAGGED THROUGH THAT 30-INCH AREA. WE SEE THE TRACK MARKS. DETECTIVE LANGE SAYS THAT HE DIDN'T SEE IT MOVED. HE HAS -- HE HAS NO KNOWLEDGE OF WHETHER IT WAS MOVED OR REPLACED OR ANYBODY PUTTING IT BACK. MR. FUNG HAS NO KNOWLEDGE OF IT. WE'RE LOOKING FOR THE WITNESS WHO'S GOING TO TELL US WHO PUT THE GLOVE BACK. WE THINK THIS VIDEOTAPE SHOWS THAT THE GLOVE IS ON THE BLANKET AND IT'S EVIDENCE PEOPLE ARE WALKING BY IT AND SOMEBODY PUT IT BACK AT SOME POINT IN TIME WHEN THEY WERE TAKING THE PICTURES, OR AT LEAST THAT'S AN AREA THAT WE FEEL THROUGH THIS VIDEOTAPE WE HAVE A RIGHT TO PURSUE GIVEN THE STATE OF THE FACTS. AND I HAVE NO DESIRE TO HIDE ANY OF THESE PHOTOGRAPHS OR THE DEBRIS OR EXPLORE ALL OF THAT WITH THE WITNESS. LET HIM TESTIFY TO IT. HE'S THE ONE WHO'S THERE. THE EXPLANATION ABOUT HOW THAT GLOVE GOT FROM THE POSITION WHERE IT WAS INITIALLY PHOTOGRAPHED TO THE SUBSEQUENT POSITION AND WHETHER SOMEBODY PICKED IT UP FROM THE BLANKET AND MOVED IT BACK IS A SERIOUS ISSUE OF CREDIBILITY FOR THESE EVIDENCE COLLECTORS AND MR. FUNG. IT'S A SERIOUS ISSUE THAT THE JURY OUGHT TO CONSIDER. I DIDN'T TAKE THESE VIDEOTAPES. I DIDN'T MAKE THEM UP. WE'RE JUST DEALING WITH THE BEST EVIDENCE WE CAN. FRANKLY, WE WOULD URGE THE -- IT APPEARS THAT THE RULES OF EVIDENCE IN THE STATE OF CALIFORNIA OR AT LEAST THE LAW DOES NOT PERMIT US TO GET ACCESS TO ALL THE OUTTAKES OF VIDEOTAPES OF THE EVIDENCE COLLECTORS AND, YOU KNOW -- THE COURT: VIDEOTAPES OF THE EVIDENCE COLLECTORS? MR. SCHECK: VIDEOTAPES OF THE EVIDENCE COLLECTION PROCESS. AND WE KNOW THAT THERE'S A LOT. EVERY TIME I TURN ON THE TELEVISION SOMETIMES IN THE MORNING -- AND I TRY NOT TO WATCH ANY DURING THIS -- BUT AT VARIOUS DIFFERENT TIMES, I ALWAYS SEE A NEW SHOT THAT I DON'T THINK I'VE SEEN BEFORE. MAYBE THE MEDIA COULD HELP US -- I DON'T KNOW -- IN THE SEARCH FOR THE TRUTH. THE COURT: WELL, THE FACT THERE WERE 12 OR 15 VIDEO CAMERAS ACROSS THE STREET OUGHT TO TELL YOU SOMETHING. MR. SCHECK: YEAH. I'D LIKE TO SEE -- YOU KNOW, WE'RE OPEN TO -- WE WOULD LIKE TO SEE AS MUCH VIDEO AS WE POSSIBLY COULD TO GET TO THE TRUTH OF THIS, BUT WE'RE ONLY WORKING WITH WHAT WE HAVE. AND WHAT WE HAVE WE THINK RAISES A SERIOUS ISSUE OF CREDIBILITY AND WE SHOULD CONFRONT THE WITNESS. ALL THESE OTHER FACTORS GO TO WEIGHT. IF THEY WANT TO CALL PEOPLE WHO THEY CLAIM ARE EXPERTS IN PHOTOGRAPHY WHO ARE GOING TO SAY THAT THESE LEAVES COULD HAVE CREATED THAT IMPRESSION WITH A TELEPHOTO LENS, WHATEVER -- WE'VE LOOKED AT IT AND WE DON'T THINK IT'S TRUE. WE THINK THAT'S THE GLOVE OR CERTAINLY AN EXCELLENT CHANCE THAT'S THE GLOVE. WE THINK THE JURY SHOULD CONSIDER IT AND ALL THESE ARGUMENTS GO TO WEIGHT. THE COURT: LET ME SEE THIS VIDEO ONE MORE TIME. (AT 11:08 A.M., A VIDEOTAPE WAS PLAYED.) MR. SCHECK: I WOULD POINT OUT TO THE COURT THAT YOU CAN SEE IN THE PICTURE WHAT'S GREEN IS GREEN. GREEN LEAVES ARE GREEN. MS. CLARK: WHAT? MR. SCHECK: THE POSITION OF THAT OBJECT IS PLAINLY -- IF YOU USE AN ORIENTATION OF THE WHITE CEMENT AREA OF THE BANISTER AND ITS RELATION TO THE GLOVE, IT'S PLAINLY MUCH FURTHER ON THE SIDEWALK -- ON THE TILES AND ON THE BLANKET THAN ANY POSITION THAT THE GLOVE HAS BEEN PHOTOGRAPHED PREVIOUSLY. AND I THINK WE'RE ENTITLED TO EXPLORE THE MYSTERY OF WHAT HAPPENED TO THE GLOVE AND THE ENVELOPE AND THE HAT WHEN MR. GOLDMAN'S BODY WAS DRAGGED THROUGH IT BECAUSE NO PROSECUTION WITNESSES HAVE COME FORWARD AND INDICATED HOW IT GOT FROM POSITION 1 TO POSITION 2, AND WE CLAIM THIS IS POSITION 3. THE COURT: ALL RIGHT. IS THAT THE COMPLETION OF THE VIDEO? MR. SCHECK: YES. (AT 11:10 A.M., THE PLAYING OF THE VIDEOTAPE CONCLUDED.) MR. SCHECK: AND, YOUR HONOR, I WOULD INVITE YOU -- THERE IS -- THERE IS -- YOU HAVE THE TWO CASSETTES IF YOU -- NO, NO. THERE'S TWO -- ALL THIS VIDEO IS TAKEN OFF THE INITIAL TWO CASSETTES THAT WERE PROVIDED TO THE COURT AND THE PROSECUTION. THE COURT: ALL RIGHT. MAY I SEE THE PROSECUTION'S ENHANCED VIDEO, PLEASE? (AT 11:10 A.M., A VIDEOTAPE WAS PLAYED.) (AT 11:12 A.M., THE PLAYING OF THE VIDEOTAPE CONCLUDED.) MR. SCHECK: ONE FINAL POINT. IT'S BEEN SUGGESTED TO ME THAT THE -- MR. GOLDBERG: I THOUGHT COUNSEL ALREADY FINISHED ARGUING. MR. SCHECK: NO. WE WERE JUST LOOKING AT THE VIDEOTAPE AGAIN. ANOTHER POINT OCCURRED TO US. THAT THE LEAVES FROM THE TREE ARE A DARKER GREEN THAN THE LIGHT LEAVES THAT ARE ON THE GROUND. SO IF ANYTHING WOULD BE TURNING A DARKER COLOR, IT WOULD BE THOSE GREEN LEAVES FROM THE PLANT THAT ONE SEES AS GREEN. THE COURT: MR. GOLDBERG -- MR. SCHECK: I THINK THESE ARE ALL QUESTIONS THAT GO TO WEIGHT. THAT'S REALLY MY POINT. THE COURT: MR. GOLDBERG, ANY OTHER COMMENT? MR. GOLDBERG: YES. JUST VERY BRIEFLY. I WOULD JUST LIKE TO HIT ABOUT FOUR OR FIVE SPECIFIC ITEMS. NUMBER ONE, IT APPEARS THAT WHAT THE DEFENSE IS TRYING TO DO HERE IS NOT TO RESOLVE A MYSTERY, BUT TO CREATE A MYSTERY. AND THAT IS PRECISELY WE THINK WHAT 352 IS DESIGNED TO AVOID; SPENDING A LOT OF TIME TRYING TO LITIGATE AN ISSUE, PERHAPS BRINGING IN EXPERTS, GOING TO FURTHER LENGTHS TO TRY TO ENHANCE THIS AND DETERMINE WHAT IT IS WHEN PLAINLY YOU CAN NOT MAKE THE ASSERTIONS OR DRAW THE INFERENCES THAT THE DEFENSE IS ASKING THIS COURT TO ALLOW A JURY TO DRAW FROM THESE PHOTOGRAPHS WITH THE QUALITY OR LACK OF QUALITY THAT IS EXHIBITED IN THOSE PHOTOGRAPHS. A FEW OTHER SPECIFIC ITEMS, YOUR HONOR. AS TO THE STATEMENT ABOUT CARDS BEING MOVED, IF THE COURT LOOKS AT ALL THE PHOTOGRAPHS THAT WERE INTRODUCED VERY CAREFULLY, I DON'T SEE ANY EVIDENCE THAT CARDS ARE MOVED. WHAT THE COURT WILL SEE IS EVIDENCE THAT DIFFERENT PHOTOGRAPHS SHOW MORE CARDS. SO IT'S PRETTY CLEAR THAT WHAT WE HAVE IS A CHRONOLOGICAL SEQUENCE WHERE THE PHOTOGRAPHER IS TAKING PICTURES AND CARDS ARE BEING ADDED AS HE'S TAKING PICTURES. AS THE COURT CAN SEE EARLIER PICTURES THAT ONLY HAVE A CERTAIN NUMBER OF CARDS AND THEN SEE A PICTURE ONE FRAME LATER, IT HAS MORE CARDS. NOW, THIS SUPPORTS THE INFERENCE THAT THE PROSECUTION IS URGING UPON THIS COURT, WHICH IS THAT THE CIRCUMSTANTIAL EVIDENCE CLEARLY INDICATES THAT THE PHOTOGRAPHS THAT WERE TAKEN BY THE STILL PHOTOGRAPHER WERE CONTEMPORANEOUS WITH THE VIDEOTAPE. WE KNOW THAT FOR ALL THE REASONS THAT I ALREADY STATED, AND WE ALSO KNOW THAT BECAUSE IF THE COURT CAN RECALL THE VIDEOTAPE, THE AREA JUST BELOW THE FIRST RISER, THE COURT DID NOT SEE THE CARD THAT WAS PUT IN PLACE FOR ITEM NO. 42. THAT'S CARD 107. SO WE KNOW THAT THAT VIDEO WAS SHOT BEFORE ALL THE CARDS WERE PUT IN PLACE. WE KNOW THAT IT WAS SHOT AS DENNIS FUNG WAS PUTTING IN PLACE THE CARD FOR THE KNIT CAP. AND IF THE COURT SIMPLY LOOKS AT THE BEFORE AND AFTER PHOTOGRAPHS, YOU CAN CLEARLY SEE THAT THE ONLY OBJECT THAT IS A POSSIBLE CANDIDATE FOR BEING WHAT WE ARE SEEING ON THIS VIDEO SHOT FROM PERHAPS 50 FEET AWAY IS THE BLOOD AND LEAF AREA THAT'S DEPICTED ON BOTH BEFORE AND AFTER PHOTOS THAT WERE SUBMITTED TO THIS COURT. YOUR HONOR, FINALLY, I WOULD ALSO POINT OUT FROM THE VIDEO THAT IT APPEARS THAT THE BLANKET IS FOLDED OR CURVED RIGHT IN BACK OF WHERE -- WHAT THEY WANT THE COURT TO BELIEVE IS AN OBJECT IS LOCATED, THEREBY CREATING AN ILLUSION OF SOME HEIGHT. SO -- I MEAN, IF THE COURT CAN JUST THINK ABOUT THE ARGUMENT THAT WE'VE HAVING HERE, THE NUMBER OF DIFFERENT FACTORS THAT HAVE TO BE TAKEN INTO ACCOUNT, THE NUMBER OF COMPETING INFERENCES. ARE WE REALLY TRYING TO SHED MORE LIGHT ON THE ISSUES OF THIS CASE OR ARE WE REALLY SIMPLY TRYING TO CONFUSE? AND I THINK THAT THAT'S WHAT EVIDENCE CODE SECTION 352 IS AND THAT IS WHY THE PROSECUTION IS ASKING THE COURT TO USE YOUR DISCRETION UNDER THAT EVIDENCE CODE SECTION TO EXCLUDE THIS EVIDENCE. THE COURT: ALL RIGHT. THE COURT'S VIEW OF THE -- BOTH VIDEOTAPES INDICATE THAT THE OBJECT THERE APPEARS TO BE THREE DIMENSIONAL, HAS A DARK LOOKS TO THE COURT TO BE A BROWN COLOR, AND I'M GOING TO ALLOW THE VIDEOTAPE. WHAT'S OUR NEXT ISSUE? MR. SCHECK: YOUR HONOR, THE NEXT ISSUE HAS TO DO WITH THE EVIDENCE -- THE AIRLINE TICKETS. THE COURT: THE AIRLINE TICKET AND THE BAGGAGE TAG. MR. SCHECK: AND THE BAGGAGE TAG. IT IS A BANE TO US ALL AT THIS POINT, BUT IT IS AFTER CAREFUL CONSIDERATION -- THE CONCERNS THAT I EXPRESSED TO THE COURT WHEN WE HAD ALL OF THESE DIFFICULTIES, YOU KNOW, HAVE PREVAILED. I THINK THAT THERE MAY COME A TIME SOON IN THE CROSS-EXAMINATION WHERE I'M GOING TO BE INTRODUCING INTO EVIDENCE THE EVIDENCE COLLECTION SHEET THAT MR. FUNG PREPARED THAT HAS BEEN REDACTED AND THERE MAY BE PASSING REFERENCE TO THE COLLECTION OF THESE ITEMS IN THE COURSE OF THE TESTIMONY OF THIS WITNESS AND PERHAPS MISS MAZZOLA, AND IT JUST SEEMS THAT -- I DON'T WANT THE JURY TO THINK THAT ANYTHING IS BEING HIDDEN FROM THEM OR THAT THERE'S ANY PROBLEM WITH THIS OR THERE'S ANY -- ANYTHING LIKE THAT AT THIS POINT, AND I -- IT'S JUST THAT IT'S BECOME SUCH AN ISSUE THAT WHAT WE WOULD PREFER TO DO IS IN ANY FASHION OR FORM THE COURT THINKS IS APPROPRIATE, TO JUST INDICATE TO THE JURY THAT BY AGREEMENT OF THE PARTIES, WE'RE, YOU KNOW -- THEY CAN CONSIDER THE COLLECTION -- THESE ITEMS AND THEIR COLLECTION AND, YOU KNOW, LEAVE IT AT THAT. I JUST WANT IT IN. I DON'T WANT ANY -- THE COURT: SO YOU'RE SUGGESTING THAT NOW MR. SIMPSON IS WILLING TO WAIVE THE 1538.5 ISSUE AS TO THE AIRLINE TICKET AND THE BAGGAGE TAG? MR. SCHECK: WELL, NO. ONE SECOND. (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) MR. SCHECK: WE DON'T WANT TO WAIVE THAT, BUT WHAT WE'RE REALLY SAYING IS THAT IN TERMS OF THE -- WE DID NOT CREATE THIS SITUATION. IT SHOULDN'T HAVE HAPPENED IN THE FIRST PLACE. IT SHOULDN'T HAVE COME IN AND THEN IT SHOULDN'T HAVE COME IN A SECOND TIME, AND WE DID PROFFER PROPOSED INSTRUCTIONS; AND THE COURT DECIDED IN ITS PROPOSED INSTRUCTIONS FIRST TO TELL THE JURY TO DISREGARD IT AND THEN THE NEXT TIME TO TELL THE JURY IT WAS IRRELEVANT. AND JUST BY THE WAY IT ALL OCCURRED, IT CALLED MORE ATTENTION TO IT THAN WE THOUGHT. AND SO IT'S REALLY NOT SO MUCH A WAIVER OF OUR 1538.5 ISSUE. WHAT IT IS AT THIS POINT IS A QUESTION OF REMEDY. AND IN TERMS OF THE REMEDY, WHAT WE ARE REQUESTING IS -- IS THAT -- THAT THE JURY -- THAT WE JUST ALLOW TO PUT BEFORE THE JURY THE FACT THAT THESE ITEMS EXIST AND THAT THEY WERE COLLECTED AND THE APPROPRIATE PAPERWORK. WE DON'T WANT -- WE DON'T WANT CONFUSION OR ANY BELIEF THAT SOMETHING'S BEING HIDDEN. THAT'S ALL. THE COURT: SO AS A MATTER OF TRIAL TACTICS, WITHOUT WAIVING THE 1538.5 ISSUE FOR ANY LATER LITIGATION, YOU'RE WILLING TO ALLOW 14 AND 15 TO BE PRESENTED TO THE JURY; IS THAT CORRECT? MR. SCHECK: 15 AND 16. THE COURT: 15 AND 16. MR. SCHECK: THAT'S CORRECT. THE COURT: IS THAT ACCEPTABLE TO THE PEOPLE? MR. GOLDBERG: YOUR HONOR, OBVIOUSLY I WAS FLABBERGASTED THIS MORNING WHEN COUNSEL MADE THIS PROPOSAL TO ME, THAT HE WANTED TO INTRODUCE THESE ITEMS IN LIGHT OF WHAT HAD HAPPENED. THE COURT WILL RECALL -- THE COURT: YOU DON'T NEED TO REMIND ME. MR. GOLDBERG: OKAY. TWICE DURING THAT HEARING, DURING THAT INCIDENT, I SAID, WHY DOESN'T THE DEFENSE AND WHY ISN'T THE DEFENSE MAKING A GOOD FAITH OFFER OF PROOF TO THIS COURT OR STATEMENT TO THIS COURT THAT THEY DON'T INTEND TO PUT THAT EVIDENCE IN OR THAT THEY FEEL THAT EVIDENCE IS SOMEHOW HARMING THEM OR PREJUDICING THEM WHEN I WAS TRYING TO ADDRESS THE ISSUE OF PREJUDICE. AND THEY NEVER MADE SUCH A REPRESENTATION TO THIS COURT. THEY NEVER SAID, WELL, YOUR HONOR, WE NEVER WOULD HAVE PUT THAT IN. IT DOES HURT US. AND NOW SUDDENLY THEY'RE COMING FORWARD AND SAYING, WE WANT THEM IN EVIDENCE. AND IT IS MORE EVIDENCE IN MY JUDGMENT OF THE VERY PERSONAL NATURE OF THE KIND OF LAWYERING THAT HAS GONE ON UNNECESSARILY IN THIS COURTROOM, OF TRYING TO VILIFY AN ATTORNEY WHEN THERE ARE NO LEGAL RIGHTS OF THE OTHER SIDE THAT HAVE BEEN COMPROMISED OR INJURED OR THAT THEY WERE EVEN REPRESENTING WERE COMPROMISED AND INJURED. THE COURT: WELL, MR. GOLDBERG, BEFORE WE GET TOO FAR DOWN THAT PARTICULAR AVENUE OF ARGUMENT, DO YOU AGREE TO THAT OR NOT? YES OR NO? MR. GOLDBERG: YOUR HONOR, IT WAS PROPOSED TO US THIS MORNING. WE DIDN'T HAVE AN OPPORTUNITY TO GO BACK AND LOOK AT THE AIRLINE TICKETS. AS I SAID TO THE COURT, THOSE AIRLINE TICKETS WERE SOMETHING THAT I DEEMED TO HAVE NO RELEVANCE AT ALL, NOT HELPFUL TO THE PROSECUTION, NOT HELPFUL TO THE DEFENSE, AND WE WOULD LIKE THE OPPORTUNITY TO TAKE A LOOK AT THOSE AIRLINE TICKETS -- AND I TOLD MR. SCHECK THIS -- BEFORE AGREEING TO THAT. BUT IF THE COURT WERE GOING TO INTRODUCE THOSE ITEMS -- AND THE COURT MAY, VERY WELL MAY, AND I SIMPLY AM REQUESTING THE OPPORTUNITY TO HAVE A LOOK AT THEM -- WE WOULD ASK THAT THE COURT WITHDRAW THE ADMONITION THAT HAD BEEN GIVEN TO THE JURY AT THE TIME THAT THE VIOLATION OCCURRED BY PLACING THAT EVIDENCE IN FRONT OF THE JURY AND SAY THAT THEY ARE ENTIRELY TO DISREGARD IT. THE COURT: WHAT I WOULD PROBABLY DO IS TELL THEM THAT THE PARTIES HAVE CONSULTED WITH EACH OTHER AND HAVE AGREED THAT THIS EVIDENCE, DESPITE THE PREVIOUS AGREEMENT, THEY'VE CHANGED THEIR MINDS, HERE IT IS. THANK YOU VERY MUCH. GOODBYE. (BRIEF PAUSE.) THE COURT: MR. GOLDBERG, HOW LONG DO YOU NEED TO EXAMINE THE TICKET AND THE BAGGAGE TAG? HOW LONG DO YOU NEED TO MAKE UP YOUR MIND WHETHER OR NOT YOU WANT TO DO THAT? MR. GOLDBERG: IT'S OBVIOUSLY GOING TO REQUIRE UNTIL THIS AFTERNOON, YOUR HONOR, BECAUSE WE'RE GOING TO HAVE TO GET THOSE ITEMS AND THEY ARE NOT HERE IN THIS BUILDING. THE COURT: ALL RIGHT. MR. GOLDBERG: BUT I WOULD SAY, YOUR HONOR, IN RESPONSE TO THE COURT'S ALTERNATIVE, I WOULD JUST ASK THE COURT TO THINK ABOUT THE SEQUENCE OF EVENTS AND WHETHER OR NOT IT IS APPARENT THAT WHAT HAPPENED HERE WAS AN ATTEMPT TO, IN THE EYES OF THE JURY, TRY TO DIMINISH THE PROSECUTION OR THIS PROSECUTOR FOR TACTICAL REASONS THAT BORE -- NOTHING -- THAT HAD NO RELATIONSHIP TO ANY RIGHTS OF THIS DEFENDANT OR ANY PREJUDICE THAT HAD BEEN CAUSED TO HIM. AND IF THAT IS THE CASE, YOUR HONOR, THAT THE APPROPRIATE THING TO DO WOULD BE TO WITHDRAW THAT SANCTION THAT THE COURT IMPOSED ALTOGETHER AND PERHAPS EVEN GIVE A COUNTER ADMONITION DRAFTED BY THE PEOPLE, NOT TO PENALIZE THE DEFENSE IN ANY WAY, BUT SIMPLY TO TRY TO ERASE ANY PREJUDICE THAT THE PEOPLE SUFFERED AS A RESULT OF THE ADMONITION THAT THE COURT GAVE. THE COURT: ALL RIGHT. MR. SCHECK, DO YOU STILL WISH TO OFFER? MR. SCHECK: ONE SECOND. (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) MR. SCHECK: YOUR HONOR, I DON'T THINK WE DID ANYTHING TO VILIFY ANYBODY, BUT IN LIGHT OF THIS RESPONSE, LET'S JUST FORGET IT. THE COURT: ALL RIGHT. ALL RIGHT. ANYTHING ELSE WE CAN TAKE UP BEFORE WE TAKE OUR RECESS FOR THE DAY? MR. NEUFELD . MR. NEUFELD: JUST ONE MATTER, YOUR HONOR. YOU MAY RECALL ABOUT A WEEK AGO IN CHAMBERS, THERE WAS A DISCUSSION ABOUT POSSIBLE PROSECUTORIAL MISCONDUCT AND YOU HAD ASKED US TO SUBMIT THAT IN WRITING. WE'VE DONE SO TODAY IN A FORMAL MEMORANDUM ON THAT SUBJECT, HAS BEEN FILED WITH THE COURT TODAY ALONG WITH A STATEMENT OF FACTS. AND GIVEN THE NATURE OF IT, WE WOULD LIKE YOU SIMPLY TO CALENDAR IT AS EXPEDITIOUSLY AS POSSIBLE. THE COURT: ALL RIGHT. AND, MISS CLARK, WHEN DO YOU -- SINCE YOU GOT THIS TODAY, WHEN DO YOU -- HOW MUCH TIME DO YOU WANT TO RESPOND? MS. CLARK: WE WILL BE ABLE TO RESPOND ON TUESDAY, YOUR HONOR. THE COURT: ALL RIGHT. THEN WHY DON'T WE CALENDAR IT FOR HEARING -- HOW ABOUT THURSDAY THEN, 4:30? ALL RIGHT. THURSDAY, 4:30. ALL RIGHT. LET ME SEE COUNSEL WITHOUT THE COURT REPORTER, PLEASE. (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.) THE COURT: ALL RIGHT. FOR THE RECORD, I'VE SHARED WITH THE COUNSEL THE LATEST REPORT ON THE CONDITION OF OUR JURORS. WE'LL STAND IN RECESS UNTIL 9:00 O'CLOCK TOMORROW MORNING. ALL RIGHT. THANK YOU, COUNSEL. (AT 11:30 A.M., AN ADJOURNMENT WAS TAKEN UNTIL, TUESDAY, APRIL 11TH, 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, )
REPORTER'S TRANSCRIPT OF PROCEEDINGS APPEARANCES: (SEE PAGE 2)
JANET M. MOXHAM, CSR #4588 APPEARANCES:
FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY I N D E X INDEX FOR VOLUME 122 PAGES 22065 - 22091 ----------------------------------------------------- DAY DATE SESSION PAGE VOL. THURSDAY APRIL 6, 1995 A.M. 22065 122 EXHIBITS PEOPLE'S FOR IN EXHIBIT IDENTIFICATION EVIDENCE
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DEFENSE FOR IN EXHIBIT IDENTIFICATION EVIDENCE |