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. Good morning, counsel.

MR. GOLDBERG: Good morning, your Honor.

THE COURT: Back on the record in the Simpson matter. All the parties are present. The jury is not present. And we need to resolve a few issues regarding discovery, et cetera, et cetera. Regarding the page 4 of the evidence collection checklist.

MR. SCHECK: May I be heard, your Honor?

THE COURT: Mr. Scheck.

MR. SCHECK: Your Honor, I would like to make this argument by giving the Prosecution every benefit of the doubt in the assumptions that one makes and even when one does that, I think the record--oh, yes. Mr. Fung I think should leave, your Honor.

THE COURT: All right. Mr. Fung, why don't you wait outside for us. Thank you.

(Mr. Fung exits the courtroom.)

THE COURT: Mr. Scheck.

MR. SCHECK: Thank you, your Honor. And even if one gives every reasonable assumption to the Prosecution in terms of this course of conduct, I don't think that there is any question but what happened here was a deliberate and intentional misconduct on the part of the Prosecution. In making this argument and in drafting a proposed instruction to the jury, I intend to follow very carefully this Court's decision with respect to the videotapes in the Rosa Lopez matter. In this Court's decision with respect to failure to disclose certain matters of discovery, the first factor that the Court began to look at was the history of discovery proceedings up to this point.

Umm, and--umm, first other--other factors, other problems that have arisen, and I would note for the Court that there have been quite a few problems with respect to the discovery on evidence collection. Umm, first there is the matter that the Court still has under submission of the failure to disclose the videotape of Mr. Simpson's residence, which has some very material information in it. In particular, the time in which the tape was taken and the very suspicious absence of the socks as the camera pans Mr. Simpson's bedroom and what the Prosecution is saying about 4:14. More disturbing still is that the Prosecution indicated that they had turned over to us the serology room transaction cards which would indicate who went in and out of evidence processing room, transaction card sheet, indicating who would go in and out of the evidence processing room on the morning of June 14th.

MR. GOLDBERG: That is false, your Honor. We never did that.

THE COURT: Wait, wait. Mr. Goldberg, you know how this works.

MR. GOLDBERG: I apologize.

THE COURT: All right. Proceed.

MR. SCHECK: Mr. Goldberg turned over these printouts of the evidence processing room, and to give him every benefit of the doubt, what he has told us is, is that he turned over what he had, which did not include the times of the early morning, it only started I think around 9:40, but it didn't include the early morning, and he indicates that in terms of what he had, he didn't have it either, all right, and he didn't give us a complete set. That is what he says. Let's just take it as he says it. Nonetheless, we didn't get it. We eventually got it during cross-examination in the middle of the cross-examination of Mr. Fung, but that happened. Then there are other disturbing problems with respect to our access to this evidence and that is that with respect, for example, to the hairs and fibers from the hat found at Rockingham, a bindle was created by Dr. Lee of hairs and fibers that was removed in Albany.

THE COURT: Isn't that a factual dispute that I haven't resolved yet?

MR. SCHECK: I understand that. I'm saying the state of the record, trying to be as objective as possible for what I think is the background for the real egregious problem here.

THE COURT: You are citing something for me that there is no factual determinations that that did or did not happen. We are aware of the LAPD video that was turned over in alike manner. I am aware of the access card records, but this other stuff I am not familiar with. I have heard it. It is not in the record.

MR. SCHECK: Well, I think it is in the record in terms of--and I don't think there will be any dispute that what has happened here is that the--and Mr. Yochelson is still searching for it and we have been talking about it and they are searching for it, but the fact of the matter is that these hairs and fibers were taken off the hat, a bindle was created, it was photographed back at the crime lab and they haven't found it yet. There is again the matter of the lens and the description even is at this point unaccounted for. The reason I raise this, your Honor, is that the difficulty that I have here, and I think it fits into one of the factors that the Court considered on the discovery sanction, and if I may quote you, is that what you are looking for in terms of these discovery sanctions is that we have to assume that on important issues that an absolute bare minimum of professional competence would require that the lawyer preparing to present testimony of witnesses confirm and inventory of record, statements, notes, et cetera.

All I am saying here, your Honor, is that I think there is a clear pattern in the discovery is what has been going on is that the Prosecution is far more concerned in what they think the Defense is going to find than they are in ensuring that they are really turning over to us all the evidence in an accurate and complete form. And that the fact of the matter is, is that I will proffer to the Court what has been going on, as the Court is well aware, is that we go to the laboratory and we have visits and we try to examine documents in evidence and everybody sits there and they take notes about exactly what we are looking at and exactly what we are thinking.

THE COURT: Well, Mr. Scheck, what I'm really interested in, though, are the facts and circumstances that surround page 4.

MR. SCHECK: I understand. I think that is a necessary backdrop because it is a factor that the Court has considered. Umm--with respect to page 4, I think that this is a clear statement of the record. We went and visited the LAPD laboratory and asked to examine the original notes of the crime scene checklists at Rockingham and Bundy and everything that was filled out by Miss Mazzola and Mr. Fung. That was delivered to us at the SID laboratory in the presence of Mr. Goldberg by Greg Matheson and they gave us a book that purported to be originals. There are two laboratory notes that were taken by I believe Mr. Matheson at this time, that actually document this and document how Mr. Neufeld was looking at the original notes of Fung and Mazzola and we went and asked if we could copy them and how I was looking at the field notes while Mr. Neufeld was checking his notes. There are records of them watching us looking at these documents with great care. I'm sure Mr. Goldberg will not dispute that at that evidence lab, when I looked at those original documents, obviously I was very concerned because I thought that--I asked Dr. Lee to come over and look at it. I thought that I found a discrepancy in terms of the originals. I asked Mr. Goldberg if we could copy--

THE COURT: Mrs. Robertson, can I have both page 4's please.

MR. GOLDBERG: Your Honor, I have those in front of me.

THE COURT: All right. May I see them, please.

MR. GOLDBERG: May I approach?

THE COURT: Go ahead.

MR. SCHECK: I asked Mr. Goldberg if we could make a copy of the originals. He was reluctant to do so. He didn't want to make a copy of the originals right there in the lab. I then appealed to Mr. Yochelson and Mr. Yochelson agreed and a copy of those originals was then turned over to the Defense. Subsequently, as the Court is well aware, we made a specific request, a written request, to have all the original documents from the checklists examined by a document examiner. Umm, the District Attorney's office balked and asked that I make an offer of proof or they contested our right to have a document examiner look at the original documents, what they were telling us were the original documents. As the Court I'm sure recalls, I made an ex parte offer to the Court and in that ex parte offer I explained to the Court very clearly what I thought the problems were, that I had seen this erasure with respect to somebody going back over the documents on July 4th, that we didn't see any staple holes.

THE COURT: July 5th.

MR. SCHECK: I'm sorry?

THE COURT: July 5th.

MR. SCHECK: That we did not see any staple holes on page 4 of the Rockingham checklist and believed that that was not an original and I wanted to have an expert examine that and the other documents. And I explained to the Court at that time that it was our contention in this case that we did not believe that Mr. Fung had ever received Mr. Simpson's blood vial on the afternoon of June 13th, but in fact had received it in the morning. I further pointed out to the Court the written documentation on--where Miss Mazzola had indicated that the blood vial had been received after the sneakers. I further pointed out to the Court her testimony at the split hearing, which your Honor heard, in which she indicated that she had no--did not recall essentially seeing, umm, Mr. Fung receive this blood sample from Detective Vannatter on June 13th. So the document examination occurred and we were operating on the assumption, because it was a representation by the Prosecutors, that the documents we were looking at were originals.

I don't think there is any question, the Prosecution concedes now, that that was a false representation. We were not looking at originals, that in fact page 4 they are claiming was not the original. And it was perfectly plain, I think after document examination, that that page 4 was not the original and we relied upon that representation. During the Court of Mr. Fung's testimony he made representations and it was our understanding, from looking at the manual, that all original documents are supposed to be kept in one place within the laboratory and that, umm, they are collected there for purposes of review by supervisors and he agreed that that was true and that the documents that had been segregated were the originals. Then there was another document, umm, that I would like to get the exact--it was first introduced by the Prosecution, and that was a document that had an "L" number on it and it referred to--it was undated, it was written on a field report note--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: L-16, and there was a specific Prosecution number. I can't recall what the number was, but it was used with Mr. Fung on direct examination. Mr. Yochelson, Mr. Hodgman and Mr. Goldberg represented to us that they had not yet found the original of that lab sheet, so on direct examination an original was not used, an original had not yet been located. The day before--I guess it was the day before yesterday, maybe Mr. Goldberg knows it better than I do, but I think it was the day before yesterday, which would make it Wednesday, Mr. Goldberg turned over the original. They had found the original. Presumably, I take it from what they are saying, that they found the original in Mr. Fung's own notebook. That I would submit, your Honor, should have put them on notice that perhaps they had not turned over all the originals to us as they had represented they had done, and it was a representation obviously that we were relying upon and relying--relying upon heavily in terms of framing a final line of cross-examination. So I would say at this point, in terms of the Court's discovery analysis, that certainly we have a false representation and the question is whether it was inadvertent neglect or gross neglect.

I would submit at this point we can at least assume it is gross neglect and let us assume that it was not knowledgeable or intentional up to this point. In other words, when I was cross-examining Mr. Fung yesterday, even after they realized that there might be some originals in his notebook and some of the documents they gave us were not originals, let us assume that they did not know and they were not intentionally trying to set us up in terms of the cross-examination. All right. It is just a gross neglect at this point. However, what happened afterwards clearly is intentional misconduct. This was an important witness, and the issue here was a critical one, whether or not this blood vial was turned over. We all know that we are about to broach the issue in opening that about a quarter of Mr. Simpson's blood sample is unaccounted for by--based on the records that we had been given up through the opening statement and we opened on it and we think that that is an extraordinarily serious issue in terms of tampering with evidence. It goes to the heart of this case.

Mr. Fung had been impeached on many points that I think it is fair to say have damaged his credibility in terms of other important pieces of evidence; the Bundy glove, the movement of those which he can't account for, an envelope where he was, you know, taking it with his bare hand where that was caught on videotape. But then of course the most important fact of all is that during the examination yesterday, and I must say that the Court extended every possible courtesy to the Prosecution in terms of allowing them to look at these videotapes, you handled it very, very carefully trying to prevent--

THE COURT: Not carefully enough.

MR. SCHECK: Well, trying to prevent any unfair surprise. I mean, they were given all the videotapes. The only thing that I was reluctant to reveal to them openly or in an offer of proof to you is that by looking at the cars we had ascertained from Mr. Fung's testimony that he had carried a blood vial out in the brown bags, the posse box or in his own hands, was false. Umm, but in terms of giving them the real evidence, they had it, they had an hour to look at it, they had a long time to think about it. The Court conducted the examination outside the presence of the jury. It was done by the book. What happened here, however, your Honor, is that at some point in time, before, before I finished my cross-examination, before I stood up after the break and said "No further questions," the Prosecution, if we take them at their word, went through Mr. Fung's book and discovered the original page 4. Given their representations that they had given us all the originals, the proper course of conduct at that point would have been to inform the Court and counsel that their prior representations have been false.

They purposely did not do that. Instead what they--what they tried to do was begin a redirect examination to rehabilitate Mr. Fung in an unfair way to try to rehabilitate his credibility on this critical issue of whether or not he got the blood vial on June 13, as opposed to the morning of June 14, and then they began to do that on redirect examination. I heard the first question about the one sheet that they had originally told us was not an original and they had found the original. That was fair enough. Then to my great surprise, I heard that second question and that is about page 4. Now, the real danger--this is intentional misconduct. They knew it, they had a break to think about it, they all sat here and discussed it; Mr. Harmon, Mr. Clarke, Mr. Goldberg and Miss Clark. They sat there and they discussed it and they thought about it and they thought wouldn't this be terrific, let's rehabilitate Mr. Fung, it will look like there was an innocent mistake and therefore all the other contradictions--contradictions caught on videotape, contradiction of his own testimony about this blood vial, would--they will then be able to argue was just an innocent mistake and he is telling the truth.

And that is how they began their rehabilitation of this witness, trying to exploit their own misconduct and their own misrepresentations. There is no question, giving them every benefit of the doubt, that that was deliberate, it was intentional and it was wrong. Now, this, I would submit to the Court, is far worse than anything that occurred with respect to withholding tapes on Rosa Lopez, because at least in that situation, first of all, I don't think that the Court made a finding of intentional misconduct. There was a basis in the record that it was as intentional as this because this was clearly deliberate, not to turn it over before I finished my cross-examination and then to try to use to it rehabilitate this witness' credibility. And it has a terrible effect because of the way that cross-examination ended and the jurors were looking at the documents. What they are trying to achieve here is the jury should forget all these other serious contradictions because of this point about page 4. Now, I am assuming here, I am assuming for the sake of argument that their claim is correct and this is in fact the original. Just assuming that. So this is true misconduct, it is intentional. It is worse than the Rosa Lopez situation because at least in that instance, before cross-examining Rosa Lopez, the Prosecution got an opportunity to listen to those tapes, to go out and interview witnesses, and the Court extended them absolutely every opportunity so that they could not be damaged by this. In truth there is no way to unring this bell.

It is quite startling to me, your Honor, at sidebar, when I raised this issue yesterday afternoon, Mr. Goldberg actually said, well, Mr. Scheck was trying to achieve a Perry Mason moment here. He was hoisted on his own pitard--he didn't say that, but words to that effect--and then he said, you know, what Mr. Scheck should have done here is come to me and said, hey, what about that page 4 that, you know, it is obviously not an original and I should have tried to straighten all that out with him. And then he cited the fact that they had told us that that other page from the lab book wasn't an original and then at the last moment turned over the original from Mr. Fung's notebook. That is fairly incredible. That shows that they seem to have no idea of the rules, because the fact of the matter is, is that they are the ones that were representing to us all the way along the line that we had a set of originals and they were not taking proper care to make sure those representations were accurate all the way through the point of cross-examination. And then it got fatally worse. After they knew that we had been misled and sandbagged by their false representations, they then intentionally willfully went out to try to rehabilitate Mr. Fung's credibility, which they are desperate to rehabilitate at this point on a critical issue, by intentionally trying to exploit their own false representations and they knew it and they did it. So your Honor, that is why I have drafted a discovery sanction.

THE COURT: Instruction?

MR. SCHECK: Sorry. A discovery sanction destruction--instruction that mirrors I think in a total factual way almost word for word the instruction that you crafted with respect to the Rosa Lopez issue, and I think that this situation is far course. And that I frankly think that the only remedy that really would undue the damage here is, umm--is preclusion. That in truth is the only remedy. However, I recognize that the Court may very well be reluctant to grant that remedy, umm, and so I have proposed, umm, this alternative instruction because it seems to me that you must instruct this jury in no uncertain terms about the misconduct of these Prosecutors here, about what they did, because it is--and about their efforts to rehabilitate Mr. Fung's credibility, umm, improperly, intentionally, that there was a violation of the law. And my instruction mirrors precisely what you have previously issued.

THE COURT: Thank you, counsel. Mr. Goldberg.

MR. GOLDBERG: Thank you, your Honor. Good morning.

THE COURT: Good morning.

MR. GOLDBERG: I am outraged by counsel's representations and misrepresentations to this Court and I have tried to take three deep breaths in advance, your Honor, but I truly am outraged. And I'm sorry, but I would like to discuss some things that probably are not directly pertinent to the issues before in Court, because Mr. Scheck addressed them and I think that they can't go unanswered. First of all, I would like to set straight what happened on this question of the door entry issue, which is an entirely irrelevant point. They never requested those documents ever at any time. I never had any conversation with Mr. Scheck about them or any other member of the Defense team at any time. What happened on that issue is I asked those documents of Greg Matheson for the purposes of being able to try to reconstruct events that happened on the 14th, the 15th, the 16th and the evening of the 13th. I wanted them, and once I got them, I Xeroxed them and turned them over without request. Counsel never had any conversation with me about them thereafter. Now, what happened on that issue is Mr. Neufeld called Greg Matheson, he did not go through me, because they have a relationship with Mr. Matheson were they go to him directly, not even through the Prosecution, and Mr. Neufeld apparently told Mr. Matheson that one of the pages was missing and Mr. Matheson then caused that to be provided to them. But there was never any request, there was never any order for that item.

Now, as to the next issue that he raised, which is the bindle, we believe, based on my conversations with Allan, that that bindle is perhaps in the Court's custody, that has not yet been resolved. But I would also like to point out that the Prosecution cannot be blamed for any potential argument or any suggestion that perhaps the bindle that Mr. Lee created was lost, because when item no. 6 came back, the control on 6, from Albany, it came back with a hair in it that was not there when it left, so we know things happened to our evidence to change our alter the condition of that evidence in Albany by the Defense experts and we have photographic documentation of that. The next issue I would like to raise in terms of misstatements by counsel is we discovered the existence of the real page 4 after cross-examination had been concluded, after counsel had represented several times to your Honor, I can't remember whether it was on or off the record, that he was finished, that he had no further questions, and after I had requested a break and was given a break for the purposes of assembling my notes for redirect examination. That is the point in time and the first point in time that we discovered it.

And the way that I discovered it is because I knew that two other documents, one other document, perhaps two other documents, were found in a similar manner, that they were found in Mr. Fung's notebook, and that he had the original and that a copy was in the notebook that was supposed to contain the originals. I would like to also address this issue of the Xeroxing of the crime scene identification checklist, which I believe happened in early May. In early March, excuse me.

THE COURT: Mr. Goldberg, before you move on to that, let me ask you a question about this discovery of the real page 4. At that time do you believe you had an obligation, having now discovered that, knowing that the Defense had made a request for a document examiner to examine each one of the pages of the crime scene checklist and any time you have a document examiner examine something like that and the implications are obvious, don't you believe that you had an obligation, upon making that discovery, to immediately advise the Court and counsel?

MR. GOLDBERG: I did not believe so, your Honor, and I would like to address that in more detail, if I may, and very extensively, but with the Court's permission, could I continue with the events that happened surrounding the Xeroxing of the crime scene identification?

THE COURT: All right, so long as you understand that that is my primary concern.

MR. GOLDBERG: Okay. As to the Xeroxing of the crime scene identification checklist, which actually Mr. Scheck and I did together, I would just like to set the record straight on that. They told us that the--told me, Mr. Scheck told me that his only reason for wanting to look at these originals, and I guess this must have been some kind of a subterfuge because they didn't want to let me know what the real intentions were, he told me that they had written on their copies and that they didn't have any copies that were free of notations and that they were kind of embarrassed about this, but were asking me to extend them the courtesy of Xeroxing those items, which I did not want to do, because I have represented to the Court my Xeroxing skills are not the best, and it took us approximately forty minutes to go through those documents, Mr. Scheck and I, and Xerox them, which I did, as a matter of professional courtesy. What happened after that, after we were finished Xeroxing virtually all of the documents, is Mr. Scheck, who should win the prize of having Xeroxing skills that are even worse than my own, dumped out the entire volume of that original notes binder and it was standing in a teepee fashion on the floor after we had gone through it, and it took us about five minutes to figure out how to undue that problem without getting the notes all out of order.

And at that point Mr. Scheck, well, several--about an hour or so later, asked me then to Xerox more documents pertaining to searches of vehicles, and naturally I wasn't very eager to Xerox more documents at that time, and I said I don't want to do it at that time. We called--we resolved that issue and then finally I decided that I would provide them with Xeroxes. But I would just like the record to be straight as to the chronology of events as to what happened during that incident. Now, your Honor, I would like to address this issue of item number--page no. 4 and the original versus the copy. First of all, I would like to discuss it legally, which is something that Mr. Scheck didn't do. He made a lot of allegations, but he doesn't discuss the law, and I would ask the Court to go back to the law, because ultimately this is a legal decision.

1054 of the penal code doesn't say anything about us providing an original document. It is not in there. The constitution of the United States requires us to provide exculpatory evidence. What is page no. 4 is in front of your Honor, I believe. It is a Xerox copy of a form. It doesn't have any writing on it. It doesn't have anything which would put any Prosecutor or Defense attorney, in my opinion, on notice that it is in any way relevant to this case, let alone exculpatory. So where is the legal obligation in any statute, in any case, in the penal code, under the United States constitution, for us to have disclosed that document to begin with? It was disclosed and we allowed them to Xerox and inspect them as a matter of professional courtesy. What happened, your Honor, is that when they inspected these documents they came to the conclusion--and I never looked at all of them and lined up the holes on the paper clips or the little holes at the top of the documents and I never examined them with that degree of care.

THE COURT: Have you examined the little--since you are such an expert at Xeroxing, have you examined all the little holes that represent staple holes on that--appear on Xerox copies?

MR. GOLDBERG: I see that there are staple holes on the Xerox copies, your Honor. I noticed that this morning. And I did not go through them with the degree of care to realize that the staple holes on the Xerox copies are Xeroxed and not actual holes, and I wouldn't have even thought of doing that and as an advocate, quite frankly. I would not have thought of predicating a conspiracy theory based upon the existence or nonexistence of staple holes on page 4. So no, I did not look at it, and I don't believe that Mr. Hodgman looked at it and I don't believe that Mr. Allan Yochelson looked at it with that degree of care, and we would not have and I do not believe that we could have reasonably been asked to. Now, what happened is that after these documents were provided, counsel notified us that two documents were not originals; one was l-16--may I just refer to my binder, your Honor?

THE COURT: Certainly.

(Brief pause.)

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Sorry, your Honor. One was l-16 which was the item that discusses on 6/14/94 certain items being released to Criminalist Yamauchi and the other item that they said was not an original, it was l-36--excuse me--l-31, which is the document that lists item numbers 20 through 35, most of them being stains that came out of the Bronco. They said it was not an original. And I believe that we ultimately found originals on both of those items and provided them to the Defense. They had a questioned document examiner look at them. They never notified us at any time or suggested to us that page no. 4 was not an original. Upon closer inspection of that document, your Honor, and especially with the aid of a questioned document examiner, it is obvious now to me that it does not have holes all the way through it and they knew that. And with the relationship that Mr. Neufeld has with Mr. Matheson, he could have done what he has done on at least two or three other occasions and gotten on the phone with him, or any of us, and said this is not an original and the search would have been on, as it was in the other two cases. He did not do that. Mr. Scheck did not do that and I'm not faulting for them, I am not telling you that they have any duty to do that, but they didn't. And they didn't do it for tactical reasons and they are entitled to make that decision.

And I don't know for sure whether I used the term hoisted on their own pitard last night, but I will use it now, because that is what happened. They decided that they were going to predicate a theory that Mr. Fung was involved in a conspiracy on the existence or nonexistence of staple holes and they didn't want to tell us about it and they didn't tell us about it and we never made any representation specifically that we knew that that document was an original of it, that we had inspected that document, and we never would have even thought of doing so. And then after doing it, we did what any Prosecutors would do in that circumstance, and think, where can the original be? And they know we would have done that as well. And it was in the same place that the other document was, where we provided the Defense with a copy instead of the original. And that is how we found it. Now, Mr. Scheck cited yesterday to the Court what I called the I-want-to-show-it rule of evidence when he was talking about wanting to show videotapes. Just say I want to show it and I say I didn't see that in the evidence code. But I would like to cite a lesser known provision of the penal code called the it-is-just-too-bad rule.

They made a tactical choice. If they were interested in the truth, if they were concerned about not proceeding on a theory that could be easily disproved, they knew how to do that, and on prior occasions they had used those vehicles and those avenues to try to clarify when they knew they had a copy instead of an original. They could have done it this time, but they didn't. And the Prosecution cannot be asked to pay the price for that tactical choice. It is a legitimate choice, I understand that they made it, but we cannot be asked to pay and should not be asked to pay. Now, I hate to get to the issue of sanctions, your Honor, because we are saying there is no discovery violation and we are saying that we did everything that a reasonably diligent Prosecutor would do and more in accommodating and overaccommodating the Defense. But you will recall that when the issue of sanctions came up yesterday, as to the Defense tapes that were not displayed, I said I can't ask for preclusion, I can't ask for an instruction, I can't ask for anything except some time to review the tapes.

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: Even though it was clear that counsel was grandstanding in the way that they had disclosed these tapes, because the sanction, if any, must fit the harm that has been done, if any, and the only harm that has been done here is that their tactical decision didn't work. And the remedy is nothing, it is to do nothing, and that is assuming there was a discovery violation, which we certainly don't concede.

THE COURT: All right. Well, why don't we go back then to my question to you.

MR. GOLDBERG: And your question was did we have a duty to bring it to the Court's and counsel's attention as soon as we found it?

THE COURT: Correct.

MR. GOLDBERG: And we believe that we did not. We discussed it, and we felt that it was clear that they had made a tactical choice, it is clear that they could have brought it to our attention, it is clear that we were entitled to introduce this, it is clear that we had no obligation under the law to produce it, and at that time, at that hour, we believed we did not have an obligation.

THE COURT: Well, let me ask you this: Since I did make the order that the originals be produced for document examination, doesn't that include page 4 as soon as it is discovered?

MR. GOLDBERG: And it was produced. I mean, it was produced in Court.

THE COURT: Well, it was produced--I ordered it produced for the purpose of document examination by the Defense, though, so didn't that place an obligation upon the Prosecution to then produce that item?

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: I didn't hear the end of the Court's question.

THE COURT: Didn't that place upon you, at any point when you discovered that you had an original in your possession, to notify the Court, at least under 1054.7.

MR. GOLDBERG: 1054.7 is in camera hearings.

THE COURT: That's correct. In other words, if you felt you discovered something, that there was some question as to whether or not it should be turned over, then you have the right to ask the Court to make that determination ex parte.

MR. GOLDBERG: But your Honor, that is true, we can have a--request an ex parte hearing whenever we feel we have information that we don't want to turn over, but we did want to turn this over. I mean, there is no question about that, that as soon as we found it, we wanted to turn it over, and we would love the Defense to have the opportunity to inspect it as much as they would like to inspect it and they will have the opportunity to do so, so we would not have requested an in camera hearing under 1054.7 to say to your Honor we want to hold this back, because that was not our intent. And what I would ask the Court is to think about also the Court's order that the Defense show us videotapes in advance, which has been repeatedly breached, and what sanction has been imposed? The sanction that has been imposed is that the Court has given us time, and we have been thankful for it, to look at those videotapes, because a lot of the times that is the only appropriate sanction that we can ask for and that is all that we have asked for. May I just have one moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: So what we would ask the Court to do is that if the Court is going to impose any sanction, that is the Court be evenhanded in the sanction that will be imposed, and we are not saying that any is warranted because we are not conceding that there is any discovery violation, to give the Defense more time to look as it, as the Court gave us more time to look at the videotapes. And the Court must be evenhanded and we request your Honor to do so and I know you want to do so in the way that the Court makes its rulings. And I think that, if anything, this is comparable but not--but in our case far less clear, because there was nothing that reasonably would have put us on notice. And I really feel a little bit reluctant to make this last argument, but in light of Mr. Scheck's argument, I don't think I have any other choice, and that is that when these items were being viewed by counsel, he said, well, we have notes of watching them view it, and so on, as if there was something improper. Actually what happened is I was in the room, it was actually the kitchen area and the library area of the Scientific Investigations Division, on a Saturday. You see, we opened up the laboratory for them on a Saturday so that they could be there, something that we do for every Defendant who is a trial.

And I was present when Mr. Scheck was viewing the notes and I was present because I wanted to make sure that nothing happened to alter or change the condition of our original notes, and that was one of the conditions that we felt that we wanted to put on them looking at them. I was sitting at the extreme other end of a table that was approximately the same size as both tables that are in your Honor's courtroom in what I describe as a library/kitchen area of the lab, because I did not want to look over their shoulders, and I felt that my mere presence would be a sufficient deterrent. But I don't know everything that happened and I wasn't watching them every moment when they looked at those notes. I don't think that would have been appropriate for me to have done. But if Mr. Scheck's Xeroxing skills are any indication of his ability to perhaps confuse documents, we don't know for sure what happened.

THE COURT: All right. Mr. Goldberg, I don't mean to cut you off, but I am really not interested in those activities.

MR. GOLDBERG: Okay.

THE COURT: All right.

MR. GOLDBERG: And I would also like to point out, and as I said, I apologize and I apologize to counsel, but we have to sort out what happened here and how it happened, and there are a lot of facts that we just don't know, and that is all I'm pointing out to your Honor. And I apologize to Mr. Scheck, I apologize to you for bringing these facts out at all. And I would like to also point out that Mr. Scheck did have the notebook throughout the Court session, so trying to reconstruct how this item no. 4 happened isn't something that we could do with any degree of precision and certainty. And again, your Honor, I don't mean--I don't like this kind of advocacy and I'm not trying to cast any aspersions. All we are trying to say is that we can't reconstruct how that these events occurred.

THE COURT: Thank you. Any brief response, Mr. Scheck?

MR. SCHECK: Yes. Your Honor--

THE COURT: Would you focus your comment on the obligation to disclose upon discovery. That is the only thing I am really interested in.

MR. SCHECK: I understand. Your Honor, they just admitted it, didn't they? They said that they discussed it. They all sat there and discussed it and decided that they had no obligation. That is fairly extraordinary. Your Honor, Mr. Goldberg seems to think that when you issue a Court order to produce the original documents for us to look at with the document examiner, that he was just doing us a professional courtesy. That is a Court order to produce the originals. Representations were made that these were the originals. Then they got notice that there were some problems and perhaps some of the originals might have been in Mr. Fung's notebook and not produced to us. Now, let's be very clear about those facts. Mr. Hodgman and Mr. Yochelson said here are two documents that we know are not originals. The others that you are looking at are originals, these aren't, and we are still looking for them, and then they find them apparently in Mr. Fung's notebook.

And that is more than enough notice that maybe this is going on and maybe all the pages that they didn't give us in the first place were originals and that we are in a perilous situation where we may be relying on something that was not originals. And obviously they had an obligation to make sure that they were giving us what they claimed to be originals in the first instance, and anybody could have seen, from looking at those, if they had examined them carefully, that there were certainly an absence of staple holes. And incidentally, your Honor, in terms of the Xerox, there is also trash marks from the Xerox machines all over those pages, so I'm not sure it is entirely clear those are staple holes versus trash marks.

THE COURT: Well, if you look at it, they seem to line up.

MR. SCHECK: They were also Xerox trash marks and they don't necessarily accord with all the staple holes, but that is besides the point.

THE COURT: That will be for the fact finder to determine, won't it?

MR. SCHECK: Well, your Honor, let's say that that is the original. Let's say that that is the original. The point here is that Mr. Fung has been severely impeached on exactly how the--

THE COURT: No, Mr. Scheck. The point is did the Prosecution have an obligation, upon discovering that they had it in their possession, to notify you and the Court that they had it.

MR. SCHECK: Yes.

THE COURT: That is the only thing I'm really interested in.

MR. SCHECK: Well, your Honor, there is no question that under 1054.1 they must disclose all relevant real evidence obtained as part of the investigation. We asked for the originals. The Court ordered them to turn over the originals. We examined the originals. Then they were on notice that they may not have given us all the originals. They took no steps. Then when they realized that they had misrepresented to us the fact that they had turned over all the originals and we had relied on it, and I had not yet stood up and said no further questions, because I didn't do that until after the break, they sat there and after they discussed it--

THE COURT: After I reminded you to do that.

MR. SCHECK: That's right. But it is clear, it is clear, but they sat there and they discussed it and they actually decided intentionally that they could go about rehabilitating the witness, because it would be helpful in order to make the jury think that all the other contradictions were just innocent mistakes, that they were going to do it even though they had represented to this Court and to counsel all the way along the line that these were originals that we had. They didn't bring it out so that perhaps I could try to undue this damage myself in some fashion with appropriate stipulations that I had been misled, because that is exactly what happened, and they did it intentionally. Your Honor, I know you don't want to hear these things, but I am trying to be as careful and as factual in the record as I can, because there is an implication in Mr. Goldberg's remark. I will readily admit to being a klutz. You have to hear this.

THE COURT: I don't have to hear this.

MR. SCHECK: Your Honor, he is wrong in his factual statements.

THE COURT: Mr. Scheck, no, no.

MR. SCHECK: I didn't Xerox those field notes.

THE COURT: I'm sure it is interesting to hear, but it is not really relevant to the decision I have to make.

MR. SCHECK: All right. It is just what he said wasn't accurate and I can prove it. The point is this: That everything that I have said in terms of giving them a reasonable benefit of the doubt, every factual innocence--every factual assumption--

THE COURT: Counsel--

MR. SCHECK: Yes.

THE COURT: --Mr. Goldberg indicated that upon discovering it, he discussed it with his co-counsel and there was a decision not to disclose it.

MR. SCHECK: Yes.

THE COURT: Is there anything more you need to argue?

MR. SCHECK: I really don't think so. I think it is intentional misconduct.

THE COURT: All right. The Court is concerned about this situation because I did order the production of these original documents, and I accept the representation that the initial production of what turns out to be a photocopy of the real page 4, that the failure to disclose that or to keep it with the originals, it was inadvertent. And in examining the two items, both the--what was originally--let's make sure I have the precise terminology here--the original page 4 that was disclosed as and purported to be an original and then the late discovered original--in examining the two forms, the Court finds that they are identical except for a poor Xeroxing of one of them, that there is no information contained, they're essentially blank forms, so as far as the content of the form itself, there is no Brady content here. Therefore the failure to disclose this is inadvertent and it is a no harm, no foul. The other issue, however, is the originality of the form itself. There was a discovery issue as to that. The Court did order its disclosure. I find that the failure to disclose both to the Court and to Defense counsel the discovery of the original document page 4 to have been intentional and should have been done prior to the conclusion of the cross-examination by Mr. Scheck. And the field notes are Defense exhibit 1107; is that correct?

MR. COCHRAN: Yes, your Honor.

MR. GOLDBERG: Your Honor, could the Court perhaps look in the record to see whether Mr. Scheck said "No further questions" before we found it, because I'm told that that may be the case, that he actually formally said that.

THE COURT: I did examine the record yesterday. What he said was "After these two items, I have no further questions" and we were at that time exhibiting the documents to--

MR. GOLDBERG: Can we double-check on that?

THE COURT: Absolutely. Be my guest.

MS. CLARK: I know it, your Honor. I was there. We didn't find this until cross-examination was concluded, until he stood up before the Court.

THE COURT: Miss Clark.

MR. COCHRAN: Your Honor--

THE COURT: Miss Clark.

MS. CLARK: Your Honor, we can't produce what we don't have.

THE COURT: Miss Clark.

(Brief pause.)

THE COURT: I will have Mrs. Robertson get the transcript from yesterday.

(Brief pause.)

THE COURT: Mr. Goldberg, do you want to approach?

MR. GOLDBERG: Yes, your Honor.

THE COURT: Let me give you the Court's transcript from yesterday. See if you can find that language. But I recollect specifically checking myself.

(Brief pause.)

MR. GOLDBERG: We found it, your Honor.

THE COURT: All right. Do you want to read it to me.

MR. GOLDBERG: I'm reading from page 22781. May I just have a moment, your Honor?

THE COURT: Certainly.

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: Your Honor, I'm looking at page 22781.

THE COURT: Yes.

MR. GOLDBERG: The Court is speaking. "All right. Deputy Russell, would you return that document to Mr. Scheck. "All right. The record should reflect that each of the jurors has had an opportunity, including the alternates, has had the opportunity to review the Defense exhibit 1107. "MR. SCHECK: Yes, your Honor. I just would mark page 4 of this crime scene checklist 1107-b. "I have no further questions "THE COURT: All right." And then your Honor continues: "Ladies and gentlemen, I'm going to take a 15-minute break at this time" and so on.

THE COURT: All right. Prior to that. Go back to a couple pages before that.

MR. GOLDBERG: To the what?

THE COURT: If you recall, when you were making your request for a break between the cross-examination conclusion and the beginning of your redirect, I asked Mr. Scheck, "Do you have anything else" and he said something to the effect, "I thought I said no further questions" and my recollection is I heard him say, after these two things, "I will have no further questions."

MR. GOLDBERG: Well, you see the problem is, your Honor, I don't know if that was recorded because--

THE COURT: No, it is in the transcript.

MR. GOLDBERG: What?

THE COURT: Flip back a couple pages.

(Brief pause.)

THE COURT: That is the benefit of having the real time reporting, because I was anxious to see whether or not Mr. Scheck was really done.

MR. GOLDBERG: Well, it must have been much earlier, if it occurred. Does your Honor recall whether this happened?

THE COURT: Well, why don't you hand me the transcript for a moment.

(Brief pause.)

THE COURT: Page 22776 at line 21. "MR. SCHECK: Your Honor, I would like to do two more things and then I'm finished questioning this witness." That is the passage I'm referring to at 22776.

MR. GOLDBERG: Your Honor, may I have the opportunity just to address this information, since we didn't have that when we argued first?

THE COURT: Certainly. Briefly.

MR. GOLDBERG: The reference that the Court just read happened, I believe, prior to the exhibits being shown the witness, item no. 4, page no. 4.

THE COURT: No, that was after.

MR. GOLDBERG: What?

THE COURT: After.

MR. GOLDBERG: But it wasn't after he had concluded examining the witness, because I believe there was still examination on those exhibits, fairly extensive examination, as I recall, between then and the time that he said--

THE COURT: No, there were no further questions put to the witness.

MR. GOLDBERG: But I still don't understand the significance of that particular passage in light of the passage where Mr. Scheck did say on the record prior to the break that he had rested. I mean, that is the posture that we were in at that time. He had completed his examination.

THE COURT: Okay.

MR. GOLDBERG: And that is what we believe to be significant here.

THE COURT: No. I agree with you, that that particular passage of the transcript is not particularly elucidating one way or the other. The issue is once you discovered it did you have an obligation to discover it both to the Court and counsel?

MR. GOLDBERG: After they had rested, if the Court is saying we had an obligation, then you have to go back legally to what our obligations are at that point.

THE COURT: We have already discussed this part, counsel.

MR. GOLDBERG: All right. But at that particular moment in time he has already concluded his entire cross-examination. He has already said that Mr. Fung is conspiring based upon the non-existence of staple holes, so if we can try to back ourselves up to that moment in time, what is going to down up to that moment in time? Is it exculpatory to the Defendant if we say, your Honor, we have that piece of evidence?

THE COURT: Counsel, you are arguing all the other issues. I was only interested in the--

MR. GOLDBERG: What I'm trying to get at, your Honor, if we back up to that precise moment in time, what would have been done from then forward? Let's say we came up to the Court and said, "Your Honor, we have this document."

THE COURT: Do we agree that is what should have been done?

MR. GOLDBERG: Well, if I have to agree to that in order to win. Your Honor, I just don't want to get into an argument over the Court with something if your Honor has already made up your mind on it. We discussed it, we felt that he had rested. We felt that there wasn't anything that could have been done at that point in order for the Defense to erase what they had done or that the Court would give them the opportunity. There wasn't anything that they could have learned by examining the documents more carefully. So if you back up to that moment in time, don't we have to try to articulate from that point forward what would have been done had we come up to the Court and said, your Honor, we found this item of evidence? Would the Court have allowed him to reopen? And then if we reopened, what would he have done? Questions--

THE COURT: The Court has been known to allow counsel to reopen.

MR. GOLDBERG: But then if the Defense is asking for a sanction, don't they have to show where the harm is? In order to articulate the harm, don't we have to back ourselves up to that precise moment in time and run forward and try to replay what would have occurred had it been done differently by the Prosecution?

THE COURT: Well, don't you think he has just sort of been embarrassed, that it set up a scenario where they accuse Mr. Fung of having destroyed an important document that might document certain important dates and times, and left that impression with the jury, which is totally empty if this is the real page 4?

MR. GOLDBERG: I don't know whether they are embarrassed or not, because they have come up with so many other things that they have tried to use to shoot down our case that have been very easily disproved and dispatched. But your Honor, the point that I made is that it is a tactical choice and are we accountable for the tactical choice.

THE COURT: All right.

MR. GOLDBERG: I would ask the Court to make a finding as to whether or not the Defense engaged in a tactical choice here.

THE COURT: Oh, no. Obviously they did.

MR. GOLDBERG: They did.

THE COURT: But counsel, here is the problem: I ordered its production. That is the foundation for all of this discussion. I ordered its production. It wasn't produced. It should have been.

MR. GOLDBERG: Your Honor, Mr. Cochran is continually talking and making comments to me off the record.

MR. COCHRAN: I am not saying anything to you.

MR. GOLDBERG: Well, he is saying it in a voice loud enough.

THE COURT: Well, counsel, I'm hearing commentary from both sides of the bench.

MR. GOLDBERG: Okay.

THE COURT: Thank you.

MS. CLARK: Your Honor, Mr. Hodgman is here to address the discovery order that was made by the Court concerning the originals. And the truth of the matter is that had the Defense wanted to get at the truth and get that document page 4 original, they could have told us so. They failed to. Mr. Hodgman is here to address the fact that they never requested that original and what has happened here is they are paying for their own tactical choice.

THE COURT: Miss Clark, are you addressing this issue or is it Mr. Goldberg?

MS. CLARK: Mr. Hodgman is here to address the discovery matter.

THE COURT: Thank you. Mr. Hodgman, you are on.

MR. HODGMAN: And good morning, your Honor. I understand my name has been taken in vain this morning so I thought I would come down and see if I could be of any help in enlightening the Court. And as the Court has asked, I will offer to the Court what I know about the situation. First of all, in terms of my direct contact with the questioned document examiner, I had asked Mr. Yochelson of our office to handle that more directly. I was a participant in some of the communications with counsel in terms of setting that up, as well as with Mr. Matheson at SID. And some of what I am about to relate to the Court is based on--

THE COURT: Mr. Hodgman, let me just cut through all of that, because I know that you and Mr. Yochelson were involved in the discovery discussions between the parties, but the issue is do you acknowledge that the Court had ordered the production of the original documents.

MR. HODGMAN: Yes, and we made every effort to turn over those documents. In fact, counsel, Mr. Neufeld, had alerted us to the fact that there was apparently--well, actually my recollection may be a little vague on this. I think we alerted Mr. Neufeld that there was one--one--there was one original that we couldn't locate and Mr. Matheson had informed me about that.

THE COURT: Do you recall which document that was?

MR. HODGMAN: I recall it as being l-16/31 which at the time we believed was two sides of the same single page. I think in the interim we have determined that those are in fact two pages.

THE COURT: We agree that that comports with our recollection.

MR. HODGMAN: And I see affirmative nodding of heads in Defense counsel, so that appears to be the case. And with that, I know Mr. Matheson undertook to find that particular page, that missing page, which subsequently--and I'm not sure as to the exact point in time we did, and all of this was in the spirit, your Honor, and I think Mr. Neufeld, with whom I was communicating primarily on this, and I know Mr. Yochelson was having additional conversations, was in the spirit of trying to comply fully, openly, forthrightly with the Court's order. Until yesterday afternoon I never knew about this page 4 which Mr. Scheck was utilizing in the course of his cross-examination. As far as the discovery of page 4, it appears that it was discovered as represented. I can't shed any new facts on that, but it appears the fact that it was not turned over was certainly inadvertent, as the Court has pointed out. And as far as the manner of disclosure, if counsel was aware of it, I would think had they alerted us, we would have made--we would have made effort, in fact gone to great pains to attempt to sort out the situation for the Defense, for the Court, for purposes of getting at the truth. We have no interest in hiding the truth, your Honor. This--

(Discussion held off the record between the Deputy District Attorneys.)

MR. HODGMAN: And as I'm reminded from Miss Clark, and I can speak for Mr. Yochelson on this as well, we were never notified that that particular page, this page 4, was missing. Had we--

THE COURT: Counsel, I have already made a finding that the failure to locate the original page 4, up and to and including yesterday, was inadvertent and in examining the two documents there is nothing on them, so there is obviously no Brady content, there couldn't be because it is just a blank form. The issue being should it have been disclosed as soon as it was discovered that this was an original and it was the lynch pin of an interesting argument made by the Defense, rather than springing it on the witness, to the surprise of the Defense, during the first phase of redirect?

MR. HODGMAN: And the only reason I bring the point up, your Honor, is with regard to the issue raised by Mr. Goldberg, which I believe is a valid issue about tactical choice, had we been notified, had a phone call--

THE COURT: Isn't the foundation of everything the Court's order to produce?

MR. HODGMAN: Yes, and the Court did in fact raise the Court order. All I'm saying is had we known that that particular original had not been produced, we would have gone to great pains, great efforts to find it for them, so that they could have had it, but we never got that notification.

THE COURT: All right. Thank you, Mr. Hodgman. All right. I find that the failure to immediately disclose to the Court, to counsel, was a violation of the Court's order and I'm going to instruct the jury as to that. All right. Let's have the jurors.

MR. SCHECK: Your Honor, could we hear what the instruction is going to be before you do so?

THE COURT: I've heard your request, I've heard their request. I don't think preclusion--I forgot to also add, I don't believe preclusion is an appropriate remedy.

MR. GOLDBERG: Your Honor, can we be heard as to other issues before the jury comes out?

THE COURT: Such as?

MR. GOLDBERG: Well, we would like an instruction to the jury as to the videotape, that they intentionally did not disclose that videotape to us yesterday, the series of videotapes at the Rockingham location. In identical words to whatever the Court is going to now instruct the jury. We think we are entitled to that. We think this is a completely analogous situation. I did not ask for it at the time because, quite frankly, I was thinking no harm, no foul, which is the way I felt this should be resolved, but we would ask for that kind of admonition. Second issue is the phenolphthalein issue.

THE COURT: All right. What is the likelihood we will get to phenolphthalein today on your redirect?

MR. GOLDBERG: Well, it is fairly likely.

MR. BLASIER: We have some additional points and authorities that we would like to present on that issue at some point.

THE COURT: Which is why I tried to start at 8:30 this morning. All right. For your information the Court will instruct as follows: "In this case in a pretrial motion the Court ordered the production of the original field notes, Defense exhibit 1107, for the purposes of examining these items by a questioned documents examiner. At the end of the Defense cross-examination of Mr. Fung the Prosecution discovered in its possession what purports to be the original page 4 of Defense exhibit 1107. The Prosecution should have immediately disclosed this discovery to both the Court and the Defense counsel. Failure to immediately disclose was a violation of this Court's order." That will be the Court's instruction.

MR. SCHECK: Your Honor--your Honor, I would--

THE COURT: I'm not inviting argument on that.

MR. SCHECK: Your Honor, may I just make a record then?

THE COURT: You made your record, counsel, more than adequately. I have allowed you to argue more than an hour today.

MR. SCHECK: Well, I--I don't think I took up a lot of that time.

THE COURT: This argument has gone way beyond its need. I have allowed both sides adequate record making. I have made my ruling.

MR. SCHECK: Well, your Honor--

THE COURT: Mr. Scheck, last time. I have made my ruling.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Did you read the proposed instructions that we submitted to the Court?

THE COURT: It is in front of me. I have considered it.

MR. SCHECK: Make it part of the record?

THE COURT: Absolutely. You filed it, I take it?

MS. CLARK: Is the Court refusing to admonish the jury concerning the Defense willful refusal and disobedience of the Court's order to advise us ahead of time about the videotapes?

THE COURT: Counsel, I haven't gotten to the issues yet.

MS. CLARK: I thought the Court just did.

THE COURT: Let me see counsel at sidebar without the reporter.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open Court:)

THE COURT: All right. Miss Clark, you had a request of the Court regarding sanctions?

MS. CLARK: Yes, your Honor, I did. The People have made a request of this Court that the jury be admonished concerning the Defense willful withholding of the videotapes and their production and notice to the Prosecution in violation of the Court's order. And the Court's made this order a number of times requiring that both sides apprise the other--

THE COURT: You mean as far as timing.

MS. CLARK: And as far as timing. And my request is that if the Court is inclined to give an admonition concerning the Prosecution's discovery issue on page 4, that it withhold that admonition until we resolve the admonition concerning sanctions against the Defense for their willful refusal to obey the Court's order concerning production of the videotapes and that the admonitions be given at the same time if any admonition is to be given at all. And so since the Court indicated that it is inclined to resolve the issue of Defense--of an admonition to the jury concerning the Defense violation of the Court's order concerning production of the videotapes until 4:30 Monday--

THE COURT: Slow down.

MS. CLARK: How you doing, Janet?

THE COURT REPORTER: Fine.

MS. CLARK: She hasn't thrown anything yet.

THE COURT: The Court reporter is going cross-eyed on me.

MS. CLARK: Is smoking. I know. They usually throw things at me. That's my first cue.

THE COURT: No. They send me messages here.

MS. CLARK: Did she? That we resolve all of those issues at 4:30 on Monday and the Court give all admonitions at the same time. And that's what I would ask the Court to do at this time.

THE COURT: All right. Mr. Cochran.

MR. COCHRAN: Yes.

MR. SCHECK: Your Honor--

MS. CLARK: Excuse me.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Let me also remind the Court, I'm reminded by Mr. Darden appropriately that the Defense violation of the Court's order resulted in a two-and-a-half delay yesterday because they did not advise us.

THE COURT: I was the cause of a lot of that.

MS. CLARK: Well--but you know something? They were really the cause of it, your Honor. That's the truth. You know, it's very gracious of the Court to take some responsibility, but it's not the Court's responsibility. The Defense should have told us about those tapes and counsel--

THE COURT: All right. We're arguing the issue at this point.

MS. CLARK: Yeah.

THE COURT: The only issue is whether or not I should withhold the sanction instruction now. Mr. Cochran.

THE COURT: Thank you, counsel.

MR. COCHRAN: Thank you very kindly, your Honor, and I appreciate the opportunity and I'll be brief, your Honor. Again, as you've so often said, they're comparing apples and oranges, your Honor. This is a situation, a violation that occurred right with this jury yesterday that needs to be corrected. The Court could have very easily and would have probably allowed counsel to reopen to cure this thing. They made an intentional decision out of the mouth of Mr. Goldberg. So I don't want to belabor and reargue that. So this needs to be dealt with right now. With regard to that, your Honor--and the sanctions are your Honor's business. You've had under submission now for almost two weeks additional sanctions regarding the Prosecution. We're not asking you to deal with that. And we have this rule of one lawyer talking per side, which consistently is violated by the other side there. And, your Honor, we tried not to do that. But I feel constrained at least to point out--

THE COURT: Not always successfully.

MR. COCHRAN: And certainly, your Honor, when we address you, I think you can point out that we address you in a respectful manner, not in a hostile manner standing up when you tell us to be quiet. We sit down and do that. And I think that should work for both sides. And I hope and I pledge to you we're going to do that from our side. But the point is, this is a violation which the Prosecution has been caught red-handed in today, your Honor. Mr. Goldberg to his credit stood here and said all of them--it's not just Mr. Goldberg. All of them sat here and made a conscious decision to violate your Court order. That's a different situation.

THE COURT: He didn't name Mr. Darden.

MR. COCHRAN: Well, he said--

MR. DARDEN: No, he didn't name Mr. Darden.

MR. COCHRAN: Well, excluding Mr. Darden. He said all the rest of them including Mr. Harmon, Mr. Clarke, all the rest of them did sat there, including--

THE COURT: He didn't cite Miss Martinez either.

MR. COCHRAN: Well, we won't--we'll exclude Miss Martinez and Mr. Darden. But the rest of them, they made a decision and we saw them in Court discussing it yesterday. The point is, your Honor, this is something that needs to be dealt with right away and right now. With regard to the--and we're more than happy to have you look at the videotapes. What you're going to find is, they had all of those videotapes with the exception of one that came here, your Honor--it was delivered in this courtroom and we gave it to them immediately. There was no violation. And what happened was, unlike this situation where they made a tactical decision for an advantage and then tried to do this in front of the jury, they saw these videotapes. They went back in your chambers. You gave them the chambers for all that time. We--if we got--if we got a videotape--

THE COURT: We're arguing the motion at this point.

MR. COCHRAN: Yes. I don't want to argue it, but I think--we welcome that. But this is a separate situation as you so correctly have pointed out in the past, and I would ask you to proceed. You know, when they're wrong, they're wrong, and we have to deal with that as we've done in the past. Let's move this on. We have 12 people or--well, we have 19 people now or 18 people back there who have been waiting all this time.

THE COURT: 18.

MR. COCHRAN: 18, and I hope it doesn't get any less. But we have 18 people back there who have a right to proceed, and we have a right to have this corrected today. The wrong was yesterday. It should have been corrected yesterday. They made a decision and they can't hide behind the fact they want to bring up something on us. This is--we're professionals. We should go forward at this point and deal with it. We welcome any discussion because you're going to find there was no violation regarding these tapes. They had all the tapes. They should watch them. And when we got the new tape, he then showed it to them. You let them have chambers for that reason. So I would ask you to proceed with that, your Honor. And I thank you very kindly.

THE COURT: All right. Thank you, counsel.

MS. CLARK: Your Honor?

THE COURT: All right. I'm sorry.

MS. CLARK: May I just point out one thing? Just one. And the situation is identical. It's a tactical decision that the Defense made to brandish a videotape before the jury in a grandstanding fashion in violation of the Court's order requiring us to object in front of the jury. No different. It's a tactical decision that they make deliberately with knowledge, repeated knowledge of the Court's ruling.

THE COURT: All right. We're arguing the motion again.

MS. CLARK: Okay.

THE COURT: The issue is, do I do all the sanctions at one time--

MS. CLARK: That's why.

THE COURT: --or do I do them piecemeal.

MS. CLARK: But that's why I think the sanctions should be resolved all at the same time. Because it is the same issue and the same conduct that we're being accused of, and I don't think it's the same--I don't think that we are in violation, but clearly they were and they did it on purpose.

THE COURT: All right. Thank you, counsel.

MR. COCHRAN: May I say one thing, your Honor? One thing.

MS. CLARK: He just can't stand letting me have the last word, it's clear.

MR. COCHRAN: Sit down. Your Honor--

THE COURT: This has got to end at some point.

MR. COCHRAN: No. It is. This is going to end hopefully, your Honor. Your Honor, with regard, your Honor, to the tapes, nothing was brandished before the jury. They had already seen those videotapes. And the Court excluded the jury and we looked at the tapes. They had every reason--they called Vannatter over here. They had people come down. This is a different situation, your Honor. We acted appropriately. Mr.--

THE COURT: No. We're arguing the motion again, Mr. Cochran.

MR. COCHRAN: Yes. But I mean it's--they're separate things, your Honor. You see that. I mean it's separate things. It's apple and oranges. It's apples and watermelons. It's different. One thing.

THE COURT: Thank you. All right. We do have other sanctions matters on--it is my recollection, the Harmon sanctions motion. Miss Clark, are you going to file any papers on the videotape?

MS. CLARK: Yes, your Honor.

THE COURT: All right. File it by Tuesday morning. All right. All further sanctions issues will be taken up Wednesday afternoon, April 19, 4:00 o'clock. All right. Let's have the jury, please.

(The following proceedings were held in open Court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Be seated. Let the record reflect we've been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: My apologies to you again for the late start this morning. I had tried to get started at 8:30 this morning so I could take care of some of the pretrial matters in the half hour before we were scheduled to start at 9:00 o'clock. As you can see, our half hour turned into a little longer than that. So I apologize to you. That's the bad news. The good news is that, as you know, the staff has been arranging for you periodically different entertainment, and I think you'll be very happy with the entertainment that we'll provide for you this weekend. It will be something, you know, special. I mean we've done some special things for you and I know you appreciate that and we appreciate your bearing with us. So I'll try to make up to you for it. Just keep that in mind. I apologize to you. I see your smiles. You understand we have these problems. And I thank you deeply for your indulgence in these matters. All right. Do we have Mr. Fung available?

MR. GOLDBERG: Your Honor, could I have the two page 4's back from the Court? May I approach?

Dennis Fung, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. Mr. Fung, would you resume the witness stand, please. All right. Good morning again, Mr. Fung. You are reminded you are still under oath, sir. Mr. Goldberg.

MR. GOLDBERG: Thank you. Your Honor, I would like to put People's 182 up on the elmo if I may. Could we get a close-up of the upper left-hand corner?

REDIRECT EXAMINATION (RESUMED) BY MR. GOLDBERG

MR. GOLDBERG: Mr. Fung, when you examined this document briefly last night, did you see a variety of paper clip holes in that document?

MR. FUNG: Staple holes, yes.

MR. GOLDBERG: Staple holes. Sorry. And also what appear to be just some black artifact little dots?

MR. FUNG: Yes.

MR. GOLDBERG: And could we perhaps using the telestrator see if we can mark the various paper clip holes that you saw on this document? Maybe you can direct us.

MR. FUNG: Down.

THE COURT: Mr. Goldberg, is this really necessary, for him to look at the--telestrate all of the staple holes?

MR. GOLDBERG: I would just like to get some of them. Maybe we'll do three or four if we can. There are a number of them there and I just want to show the jurors.

THE COURT: Well, we have the document here. We can show it to them. Don't you think it would be easier for them to look at it?

MR. GOLDBERG: I would like to do that too, if I may do both.

THE COURT: All right. But it seemed to me that they're looking at the document or appear to be.

MR. FUNG: Okay. Down, over to your left, little bit more. There (Indicating). Down. It's hard to make out on the screen here.

MR. GOLDBERG: Okay. Can you see them on the larger screen?

MR. FUNG: Not from this angle. Down from there and to your right and down a little bit more. There's one there, appears to be there (Indicating). And one more?

MR. GOLDBERG: Let's see if we can get another one, if you can see one, if the resolution is good enough on your screen, Mr. Fung.

MR. FUNG: Right next to the one on the bottom, there's one at the 2:00 o'clock position, right there (Indicating).

MR. GOLDBERG: Now, perhaps we could put the next document, it's 1107-b, Defense exhibit, on the telestrator. And, Mr. Fung, if you see the way that this is positioned on the telestrator, do there appear to be little black Xerox dots that corresponded to some of the actual holes that were on the other exhibit, the real page 4?

MR. FUNG: Approximately, yes.

MR. GOLDBERG: And is that what you were referring to when you were saying that you did a preliminary evaluation of the document?

MR. FUNG: Those are--that's just one of the characteristics that I looked at, but yes.

MR. GOLDBERG: What were any of the other characteristics you looked at?

MR. FUNG: I looked at the folds in the upper left-hand corner of the document and the holes, paper punch holes off the side of the left-hand margin.

MR. GOLDBERG: Your Honor, with the Court's permission, I'd like to pass these two documents to the jury.

(Brief pause.)

MR. SCHECK: Your Honor, while the documents are being passed to the jury, may we take the opportunity for a brief sidebar?

THE COURT: Yes.

(The following proceedings were held at the bench:)

MR. SCHECK: First of all, your Honor, just for the record, I would like to object to the proposed instruction that you're going to give to the extent that it does not comport with the point I propose. In particular, what concerns me is--

THE COURT: Excuse me just a second.

MS. CLARK: Aren't we going to file motions on this?

MR. SCHECK: Particularly, in regard to--I think that although the Court found that the failure to turn over the originals in the first instance was inadvertent, what I had proposed was that you also tell the jury whether it was inadvertent or not, they turned over whaDouglaswere claiming to be originals. And Mr. Hodgman just confirmed all of that including the fact that there were other documents that they say weren't originals that they subsequently turned over, which additionally misled us to believe that we had all the originals. And the problem here is that I was misled. Just assuming, even if it was inadvertent, it's still a false representation, misrepresentation that we had of the originals because counsel misled us, and I would like something--but be that as it may--

THE COURT: Mr. Scheck, let me invite you to do this since we're moving on to other subjects at this point. If you want to file a supplemental brief with me on that issue Monday, I'll consider it, or actually Tuesday morning since I'm going to take up the other sanctions issues Tuesday morning.

MR. SCHECK: I mean, I think I made my argument and I presented the--and ask you to just consider that because-- but the real issue, your Honor, is that right now, they're making a big deal at this point with the jury. And what Mr. Cochran said and I would urge the Court, now is the time after they finish with this, then the instruction must be given since there's no question about this being a discovery violation and they then misled. So I would just ask you to consider adding additional language to your proposed charge that the Prosecution had turned--to the effect that the Prosecution had initially turned over to us what they claimed to be originals, but they were not, and this misled Defense counsel, and put that in in addition to what you propose to give and that you do it now after you finish with whatever else they're going to do with this because they're making a big deal about this. This is the time.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: This is a tremendous, tremendous problem with what counsel just said to the Court. That is that they said they were misled. They had a questioned document examiner look at these things. They knew they were looking at a Xerox. They knew they didn't have the original. So where have they been misled and they never came to us and told us?

THE COURT: The misleading is, they were not aware of the location or true content of the original. We agree there's an original.

MR. GOLDBERG: But, your Honor--

THE COURT: No. I understand that.

MR. GOLDBERG: There were two other documents, you know, I would ask counsel to--

THE COURT: We're only arguing time again at this point.

MR. GOLDBERG: I'm just saying I think that in order for him to even get his toe in the door, he has to be able to say to your Honor in good faith that they didn't come to us with this problem--

MS. CLARK: Like they did with the others.

MR. GOLDBERG: Wait a minute. Hold on--and this wasn't a tactical decision on their part because your Honor knows it was a tactical decision. Counsel--

THE COURT: We are only talking about time now.

MR. GOLDBERG: I know that your Honor has ruled. Your Honor carefully considered it, we argued it, we are rearguing it. There's another issue to the videotape. It would be appropriate for both sides to be addressed simultaneously. We did not--we did not get any instruction to the jury immediately after the delay. We didn't tell the jury that there was a delay occasioned by the Defense or any other thing.

THE COURT: But in fairness, you didn't bring it up at the time either.

MR. GOLDBERG: Because, your Honor, I didn't really think it was appropriate. My approach to sanctions is, you address the harm that has been done, you figure out what really has been done here, what do the parties intend to do and you address it from that perspective. And I asked for the least onerous sanction that I could contemplate under those circumstances, which is essentially the legal--the legal approach that you're supposed to take under the penal code. You start with what the harm is and you work way down from the bottom up to the top. And it's a difference in style of advocacy, your Honor, of justice. Every time there has been an opportunity for them to accuse me of misconduct, the Prosecution, they did so, and I--that is just not my style.

THE COURT: Well, counsel, if you want to submit anything more, you are welcome to do so by Tuesday.

MR. SCHECK: Your Honor, but my request--my request is that--

MS. CLARK: There's been a ruling.

MR. SCHECK: --that you add something with respect to the fact that the Prosecution was supposed to turn over originals; they did not. You can say it was by inadvertence, as you made the finding, and this misled Defense counsel, and then continue with the fact that they also intentionally did not call it to the attention of the Court and counsel before the end of cross-examination, and that's-- excuse me. Now, that's fair and should be done now. And I have refrained from--I'm not from here and I'm not friendly with all you people with the history, and I've restrained myself. I don't make loose charges. I don't call people names. But this is too much because I've been seriously and wrongfully misled. I've been harmed in the eyes of the jury. I've played this by the book. Mr. Hodgman came in here and confirmed this. And what happened here was wrong and it's damaging to my credibility as an advocate and it's wrong and should be corrected now while this is fresh in the jury's mind because they're going to think that I misled them and they are going to think all the other impeachment has no value.

And that's exactly what they're trying to do by their intentional misconduct, and the Court has recognized it and made a finding. I just want you to add one thing, which is a fact finding. We are entitled to it. And I'm not going to--Mr. Goldberg makes other misstatements about what happened, but I'm not going to go into that now, about the Xeroxes, what was Xeroxed. I can prove it, but that's not the issue. The issue is what happened now and we are entitled to do it now.

MR. GOLDBERG: The Xeroxing issue is totally irrelevant, but counsel is right. I was controlling the machine. I mean, I just wanted to say I didn't mean to suggest he was controlling the machine.

MR. SCHECK: That's the only way it can be cured. That's the only way that the bell can be unrung because now they're making a big deal, passing this around, the jury is going to think that we misled. And the only reason we're put in this position is because--whether it was through inadvertence or not inadvertence, the originals, they intentionally withheld them. So I couldn't clear this up by myself before the end of cross-examination, and that was wrong, and I'm entitled to have the jury hear that right now.

THE COURT: Okay. Thank you, counsel.

MR. GOLDBERG: Is your Honor changing its ruling? Okay. Good.

(The following proceedings were held in open Court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. GOLDBERG: Sir, directing your attention back to People's exhibit 182 for identification, was any part of that exhibit ever filled out?

MR. FUNG: No.

MR. GOLDBERG: And the portion that says "Time leaving crime scene"--let me just put that up on the elmo.

(Brief pause.)

MR. GOLDBERG: The portion that says "Time leaving crime scene" was not filled out?

MR. FUNG: No, it was not.

MR. GOLDBERG: May I just have a moment?

(Brief pause.)

MR. GOLDBERG: Your Honor, next I would like to take a look at Defense exhibit 1107 with item no. 17 through 19. Your Honor, do the lights need to be dimmed in the courtroom for us to get resolution--better resolution on this?

MR. GOLDBERG: Sir, with respect to this exhibit, can you tell us again how this exhibit came into being?

MR. FUNG: On the morning of June 14th, Miss Mazzola wrote down items of evidence which had not been previously written down in our evidence collection checklist.

MR. GOLDBERG: Okay. And is this an official form of the Los Angeles Police Department, what we're looking at right now?

MR. FUNG: No.

MR. GOLDBERG: Is this a document that has--that's two-sided?

MR. FUNG: No, it's not.

MR. GOLDBERG: All right. So in the ordinary course of the crime lab's business, when you're documenting items that have come from a crime scene, are you supposed to use this kind of a form?

MR. FUNG: No.

MR. GOLDBERG: Or just a blank sheet of paper?

MR. FUNG: No.

MR. GOLDBERG: All right. And then at some point, you became aware that Miss Mazzola had written it on this piece of paper?

MR. FUNG: Yes.

MR. GOLDBERG: What did you tell her at that point?

MR. FUNG: I told her to place this information on an evidence report form that's included with the crime scene checklist.

MR. GOLDBERG: All right. And could you have simply told Miss Mazzola, "Look, this is sort of a Mickey Mouse thing here--"

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Could you have told Miss Mazzola simply to throw this away?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Under the policies of the crime lab, was there any obligation for you to save this document?

MR. FUNG: As it was written there, no.

MR. GOLDBERG: Was there any custom within the crime lab that you're aware of that required you to save this document?

MR. FUNG: No.

MR. GOLDBERG: Would there have been any rule or procedure that would have been violated had you simply told Miss Mazzola, "Throw it out and write a new one on an official form"?

MR. FUNG: No.

MR. GOLDBERG: So did you make a decision to preserve this document?

MR. FUNG: Yes.

MR. GOLDBERG: And maintain this document?

MR. FUNG: Yes.

MR. GOLDBERG: And did you know full well that when you made that decision, copies of this document and eventually the original would be available to the Defense in discovery?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Sir, are you familiar with the procedures of discovery?

MR. FUNG: Some of them, yes.

MR. GOLDBERG: And are you aware that the Defense is entitled to copies of documents?

MR. FUNG: Yes.

MR. GOLDBERG: Including this one?

MR. FUNG: Yes.

MR. SCHECK: Your Honor--

THE COURT: Objection?

MR. SCHECK: I have an objection to that question with respect to matters that have been discussed.

THE COURT: Overruled. Proceed.

MR. GOLDBERG: So, Mr. Fung, if I understand your testimony, is the evidence that the Defense has here that they claim show some sort of conspiracy on your part--

MR. SCHECK: Objection. Leading.

MR. GOLDBERG: --does it exist simply because you maintained it and preserved it?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Thank you.

MR. GOLDBERG: You maintain this?

MR. FUNG: Yes, I did.

MR. GOLDBERG: And preserved it?

MR. FUNG: Yes, I did.

MR. SCHECK: Your Honor, I would like to have a sidebar on this issue.

THE COURT: Overruled. You can cross-examine on that, counsel.

MR. SCHECK: Your Honor, there's an issue here I think that--

MR. DARDEN: Objection.

THE COURT: With the Court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: We're over at the sidebar. Mr. Scheck.

MR. SCHECK: Your Honor, you know, this is--

THE COURT: Aren't you guys overreaching with this?

MR. SCHECK: Your Honor, they now--

MR. GOLDBERG: He's saying there was something improper about this document. We're showing it's not an official form; if he would have thrown it away, it would have been within his rights. He didn't.

MR. SCHECK: First of all, that's not even true, but that's not the point. The point is, now they're trying to rehabilitate him saying, are you familiar with rules of discovery, are you familiar with what the obligations are, and now they're saying the only obligation they had was to turn over copies to the Defense of this document, not originals, and that is exactly what the problem is here. And now they are further trying to exploit this, further misleading this jury and they're trying to exploit the fact that this Court has not yet decided whether to give the admonition right now about their discovery conduct. It's even getting worse and this is wrong.

MR. GOLDBERG: Your Honor, I asked him a leading question at first. The leading question was I believe--I hope I'm not mistaken on this, but they would be entitled to the original and copies, and the objection was sustained. So then I said, well, "What is your understanding of discovery," to try to get around that. I mean the point is that they are entitled to this in discovery. They did get a copy in discovery. It was clearly admissible evidence. It is relevant evidence. It is proper questioning.

THE COURT: But the issue is, now you're--the argument Defense counsel is making is that you are overreaching by doing this, you're seeking an unfair tactical advantage from your misconduct yesterday by not disclosing this immediately and that the Court should now give the admonition that it indicated it was going to give. That's their argument, which is what prompted the Court's comment when we first came up here, don't you think you're overreaching here a little?

MR. GOLDBERG: I don't know what the Court means by overreaching. I ask the Court to think about what the Court would do if the Court were in my position. Would you bring this to their attention?

THE COURT: Not under--not in this manner I wouldn't.

MR. SCHECK: Your Honor, I think--

THE COURT: I would just establish what was the original document, where it's been, here it is, thank you very much, good-bye. Is there anything on it? No, there's nothing on it.

MR. GOLDBERG: I did that with the first document.

MR. SCHECK: This is a separate document.

THE COURT: Wait. Wait. Excuse me.

MR. SCHECK: Sorry, your Honor.

THE COURT: I'm speaking to counsel.

MR. SCHECK: I thought you were finished.

MR. GOLDBERG: Your Honor, this isn't even page 4 that we are talking about anymore. I didn't ask him any of these questions with respect to page 4. I mean I don't understand. We are talking about a separate document.

THE COURT: I know.

MR. GOLDBERG: And I intend to ask him the same questions on the other document that's similar to that official form.

THE COURT: At this point, objection is overruled.

MR. SCHECK: Your Honor, can I be heard on this?

THE COURT: Sure.

MR. SCHECK: Come back. The problem here--the problem here, your Honor, is that what--as the Court noted, that there is overreaching here. What's going on is that they are trying to vouch for his honesty and their own honesty in the discovery process by indicating, "Are you familiar with the rules of discovery? We have all been playing this game correctly. What we are authorized to do is turn over copies, and we did that. And you preserved the documents even though you didn't have any obligation," which isn't true; and they're trying to vouch for their credibility in turning this over and pretending that nothing happened here that was a misrepresentation, that misled the Defense. And that is wrong and that is additional reason to give the admonition as we requested.

THE COURT: At this point, I'm going to overrule the objection, but I'm going to caution counsel. Move on.

MR. GOLDBERG: Your Honor, may I just--

THE COURT: Move on.

(The following proceedings were held in open Court:)

THE COURT: All right. Are we done with this exhibit, Mr. Goldberg?

MR. GOLDBERG: Yes, your Honor.

(Brief pause.)

MR. GOLDBERG: Your Honor, I just wanted to approach with this, if I may, with this document, just ask him one more question.

THE COURT: One more.

MR. GOLDBERG: Sir, with respect to this item number 1107, what is the--on the front of the form?

MR. FUNG: The front is the field notes portion.

MR. GOLDBERG: I would like to see the other document that's part of 1107. It's the page that has item 17, 18 and 19 written in it.

(Brief pause.)

MR. GOLDBERG: Sir, and what is this form again?

MR. FUNG: This is an evidence collection report.

MR. GOLDBERG: And did--is this the form that Andrea Mazzola created after you told her that you didn't want the items on that blank sheet of paper that's on the reverse of the field notes?

MR. FUNG: Yes.

MR. GOLDBERG: Okay. And when you first saw it, what were the order of the items?

MR. FUNG: I'm going to refer to my copy. The order of items was that 17 was in the top box where 18 is, 18 was next to it or below it and 19 followed it.

MR. GOLDBERG: And how was that problem dealt with? What did you do about that?

MR. FUNG: I erased 17 and 18 and changed the numbers.

THE COURT: I'm sorry. I think the monitor up here for jurors 1 and 2 is--do we have it on? Mr. Fairtlough? Where is Miss Fitzpatrick? Is it on? All right. Thank you. Mr. Goldberg.

MR. GOLDBERG: Now, Mr. Fung, if you write out a report in the crime lab and you make a mistake on that report or there's something on it that you want to change, is there any rule that says that you can't simply, if you have a--if you're in the process of creating a document, throw it away and start all over again?

MR. FUNG: There's no rule to that, no.

MR. GOLDBERG: Did you ask Andrea Mazzola to do that with respect to this document?

MR. FUNG: No.

MR. GOLDBERG: So did you decide to maintain this document?

MR. FUNG: Yes.

MR. GOLDBERG: As a Criminalist III, could you have said--would it have been in your power to have said to Andrea Mazzola--

MR. SCHECK: Objection. Leading.

THE COURT: Finish the question, but it sounds like it's leading.

MR. GOLDBERG: Okay. Do you have the authority as a Criminalist III to tell a Criminalist I, "Clean up this document, write out a new one"?

MR. FUNG: Yes, I do.

MR. GOLDBERG: Did you do that?

MR. FUNG: No.

MR. GOLDBERG: Now, you said that you had no recollection of talking to--thank you--no recollection of talking to Criminalist Mazzola specifically about the circumstances under which you got the blood vial; is that correct?

MR. FUNG: That's correct.

MR. GOLDBERG: And why was it that you--well, do you have a recollection of talking to her about things like the circumstances of collecting--

MR. SCHECK: Objection. Leading.

THE COURT: Overruled.

MR. GOLDBERG: --the blood on the trail at Bundy?

MR. FUNG: No.

MR. GOLDBERG: Well, do you believe--do you have a recollection of talking to Miss Mazzola about collecting items on the trail at Bundy?

MR. FUNG: Yes.

MR. GOLDBERG: What about at Rockingham?

MR. FUNG: Yes.

MR. GOLDBERG: What about the glove and the cap at Bundy?

MR. FUNG: Just briefly.

MR. GOLDBERG: Okay. And why did you talk about those items but not the vial or why is it that you remember--

MR. SCHECK: Objection as to the time when these conversations took place. These questions are vague.

THE COURT: Sustained.

MR. GOLDBERG: You said you had a conversation that was at some point after the Griffen hearing with Miss Mazzola.

MR. FUNG: Yes.

THE COURT: That's vague to the jury too.

MR. GOLDBERG: Yeah, but they--that's true.

THE COURT: Is that October 16th?

MS. CLARK: Yeah.

MR. GOLDBERG: Yeah, I think it was. Perhaps we could later on have that--the Court take judicial notice of that.

MR. GOLDBERG: Sir, was there a hearing in which you were questioned by the Defense about various aspects of things you did on the 13th in collecting evidence with Miss Mazzola?

MR. FUNG: Yes.

MR. GOLDBERG: All right. And at some point after that hearing, did you have a conversation where you tried to determine who specifically picked up certain items?

MR. FUNG: Yes.

MR. GOLDBERG: All right. And you have a recollection of talking to her in that conversation about the trail at Bundy and the trail at Rockingham?

MR. FUNG: Yes.

MR. GOLDBERG: And probably the cap and the glove?

MR. FUNG: Yes.

MR. GOLDBERG: And why doesn't the issue of the blood vial stand out in your mind?

MR. SCHECK: Objection. I don't believe he's competent to talk about why he forgot to tell her something.

THE COURT: Overruled.

MR. FUNG: Could you repeat the question, please?

MR. GOLDBERG: Did you consider the issue of the blood vial to be particularly important in terms of who collected it?

MR. FUNG: No.

MR. GOLDBERG: And you were asked certain questions on cross-examination about whether or not you were anticipating the kind of accusations about the blood vial. Do you recall those questions that were made during cross-examination?

MR. FUNG: Yes.

MR. GOLDBERG: Mr. Fung, were you anticipating those kinds of accusations?

MR. FUNG: No, I was not.

MR. GOLDBERG: Were you surprised?

MR. FUNG: A little bit, yes.

MR. GOLDBERG: Okay. And in your mind, was the issue of precisely how the blood vial got from Mr. Vannatter, Detective Vannatter out to the crime scene truck all that important to you?

MR. SCHECK: Objection. Leading.

THE COURT: Overruled.

MR. FUNG: No, it was not.

MR. GOLDBERG: Did you know that it got out there in some way?

MR. FUNG: Yes.

MR. GOLDBERG: Did you try to make a mental note in your mind as to specifically what was happening at the time you got the blood vial?

MR. SCHECK: Objection. Leading.

THE COURT: Overruled.

MR. FUNG: I only--my only concern was to note the--who I got the item of evidence from and the time and the date that I got the evidence.

MR. GOLDBERG: Did you do that?

MR. FUNG: Yes.

MR. GOLDBERG: When you received the analyzed evidence envelope or the evidence envelope rather containing the blood, did you make it a point to call out to people, "Hey, everyone, I'm getting the vial. Can everyone gather around so I can have some witnesses"?

MR. SCHECK: Objection. Leading, argumentative.

THE COURT: Sustained. Sustained.

MR. GOLDBERG: I'm sorry, your Honor.

MR. GOLDBERG: When you got the blood vial, did you make it a point to try to gather people around you?

MR. FUNG: No.

MR. GOLDBERG: Did you make it a point to try to get people to notice what was happening so you would have witnesses?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Did you make any effort to make sure that there were a lot of people around when it happened?

MR. SCHECK: Objection. Leading again.

THE COURT: Overruled.

MR. FUNG: No, I did not.

MR. GOLDBERG: Why not?

MR. FUNG: That's not part of--I would think it would be unprofessional for me to make a big deal out of collecting a single piece of evidence.

MR. GOLDBERG: Did you try to do that with any other piece of evidence, get people to witness you collecting it on the 13th?

MR. FUNG: No.

MR. SCHECK: Objection.

THE COURT: Overruled.

MR. SCHECK: Leading.

THE COURT: Overruled.

MR. GOLDBERG: Now, when you got on the witness stand in this case, did you recall all of the facts and circumstances as to specifically how the item was carried out to the crime scene truck?

MR. FUNG: No.

MR. GOLDBERG: All right. And when you were suggesting to Mr. Scheck various ways that it could have gotten out to the crime scene truck--

MR. SCHECK: Objection. Misstates the evidence. Not suggestions. Testimony.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Okay. Maybe I'll read from the transcript, your Honor. I'd like to read first from page--

MR. SCHECK: Could you tell us what page?

THE COURT: He's about to give us a page.

MR. GOLDBERG: Yes. It's page 22457.

THE COURT: I take it that's from the 12th?

MR. GOLDBERG: It's from the 12th, yes, your Honor.

THE COURT: All right.

MR. GOLDBERG: Do you recall giving the following answers--

THE COURT: Excuse me just a second. Counsel, do you have it?

MR. SCHECK: We're cueing it up on the computer.

MR. GOLDBERG: It's starting on line 1 all the way down to line 18.

MR. SCHECK: Could we have a second, your Honor?

(Brief pause.)

MR. SCHECK: I think we got it.

THE COURT: Proceed.

MR. GOLDBERG: Sir, did you give the following answers to the following questions? "Question: Now, did you receive the blood vial before 15 and 16 were collected? "Answer: No. I--I received it afterward. "Question: And you just refreshed your recollection by looking at your notes? "Answer: Yes, I did. "Question: And the notes reflect that those items were picked up at 5:00 o'clock? "Answer: Yes. "Question: And since you are telling us that you received this blood vial at 5:20, you have concluded that this was after those two items were collected? "Answer: Yes. "Now--but do you have, as you sit here today, an independent recollection of the order in which you received the items other than looking at your notes? "Answer: No." Do you recall that line of questioning?

MR. FUNG: Yes, I do.

MR. GOLDBERG: And did you have an independent recollection of the time that you obtained that vial other than what was reflected in your notes?

MR. FUNG: No.

MR. GOLDBERG: Or the order in which it was collected with respect to other items?

MR. FUNG: I don't have--I didn't have an independent recollection and I still don't. No.

MR. GOLDBERG: Is that because as far as you were concerned, it wasn't that significant?

MR. SCHECK: Objection.

THE COURT: Sustained.

MR. GOLDBERG: Your Honor, I would like to read another quote from page 22444, and it starts on line 23.

(Brief pause.)

MR. GOLDBERG: I actually should start with line 20.

THE COURT: Thank you, counsel.

MR. GOLDBERG: Do you recall giving the following answers to the following questions, sir? "Question: And after you received the envelope from Detective Vannatter in the foyer, did you then walk out the door to the crime scene truck? "Answer: I don't know if I did that immediately or if I had other things there I had to do prior to that. "Question: Did you put this envelope in a brown paper bag? "Answer: I don't recall if I did or not. "Question: Did you put it inside your black kit? "No, I don't think I did that. "Question: Did you at some point walk out of the foyer to the crime scene truck holding the gray envelope? "Answer: I don't believe so. "Question: Well, what did you do with it? How did you get it to the crime scene truck? "Answer: It may have been in a paper bag, but I don't recall if I actually did put it in there or it may have been put in the--in a posse box. "Question: Is it possible that you just walked out the door with the envelope in your hand? "Answer: It's possible, but I don't think that that's likely." Do you remember giving those questions to that answer--those answers to those questions?

MR. FUNG: Yes.

MR. GOLDBERG: And at that point in time, did you have an independent recollection, meaning from your own memory of what happened on the 13th, as to exactly what receptacle, if any, you put the blood vial envelope in?

MR. FUNG: No, I did not.

MR. GOLDBERG: So where did you come up with the various possibilities that you were speculating about?

MR. SCHECK: Objection as to speculation. There's testimony after lunch after these questions.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Mr. Fung, where did you come up with those various different possibilities?

MR. FUNG: Those were package--packaging items that are in the crime scene--available in the crime scene kit, and I named those types of packaging or packages off.

MR. GOLDBERG: Okay. But did you have any memory at that time of putting it in a brown paper bag as opposed to the posse box as opposed to just handling it without putting it in anything?

MR. FUNG: No.

MR. GOLDBERG: Okay.

(Brief pause.)

MR. GOLDBERG: Your Honor, at this time, I would like to mark as People's next in order two photographs of what appear to depict the packaging of item 17.

THE COURT: 183 and 184.

MR. GOLDBERG: Or does the Court want me to mark them 183-a and 183-b?

THE COURT: How about 183 and 184.

MR. GOLDBERG: Okay.

(Peo's 183 and 184 for id = photographs)

(Brief pause.)

MR. GOLDBERG: I just want to approach the witness first before I show it, put it on the elmo if I may.

THE COURT: You may.

MR. GOLDBERG: Sir, showing you what's been marked as People's 183 and 184 for identification, do you recognize that?

MR. FUNG: Yes, I do.

MR. GOLDBERG: What does that depict?

MR. FUNG: This depicts the front and back of the envelope containing item no. 17.

MR. GOLDBERG: I don't know whether the resolution is going to be good enough, Mr. Fung, but you said that you documented somewhere that you received this from Mr. Vannatter, the date and the time?

MR. FUNG: Yes.

MR. GOLDBERG: Can you point that out for us?

MR. FUNG: On the photograph to the right, which is the picture of the rear or the back portion of the envelope, there is writing--well, it's between the yellow seal and the red seal in the middle and it says, "Received from Detective Vannatter," his serial number, 14877, on 6-13-94 at 1720 and it has my signature there.

MR. GOLDBERG: And when you wrote that on there, do you know where you got the time from?

MR. FUNG: I looked at my watch.

MR. GOLDBERG: Your Honor, I have another item from People's 160--

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: Your Honor, at this time, I have an item that comes from People's 163 and it's 163-i for identification.

THE COURT: All right. 163-I. You want to show that to Mr. Scheck first?

(Brief pause.)

MR. GOLDBERG: Sir, showing you People's 163-i for identification, can you tell us what that is?

MR. FUNG: This is a LAPD sealed evidence sticker.

MR. GOLDBERG: And so is that the type of sticker that you used when you eventually seized this before it was placed into the evidence control unit?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. It also assumes facts not in evidence at this point.

MR. GOLDBERG: Did you use this type of sticker on this item?

MR. SCHECK: Objection. It assumes facts not in evidence.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. GOLDBERG: And can you just point it out for us on the elmo, where that sticker would be? Which one, the yellow or--

MR. FUNG: The red--the red sticker in the--it's about two-thirds across the screen.

MR. GOLDBERG: And was this item eventually brought into the evidence control unit?

MR. FUNG: Yes, it was.

MR. GOLDBERG: On what date?

MR. FUNG: That was booked into ECU, which is the evidence control unit, on June 16th.

MR. GOLDBERG: Okay. Could we circle using the telestrator perhaps the time, the 7:22? 1722, and the date, Mr. Fairtlough?

MR. GOLDBERG: And does that date go under the seals?

MR. FUNG: The seal appears to cover that writing, yes.

THE COURT: Mr. Fung, did Mr. Fairtlough correctly circle the items you're referring to, the date and time?

MR. FUNG: Yes, he did.

MR. GOLDBERG: Your Honor, at this time, I would like to play another videotape that we have of the events on the 13th at Rockingham. I don't know whether we've discussed that.

THE COURT: I don't believe we have. Let me see counsel at sidebar.

(The following proceedings were held at the bench:)

MR. COCHRAN: Your Honor, we would lodge an objection. We have a two-lawyer rule, Judge.

THE COURT: Two lawyers. Bye-bye.

MS. CLARK: No. Okay. I just wanted to give him this. Okay. Bye.

MR. DARDEN: I have information Mr. Goldman doesn't have. Would you rather that I discuss it with him first or you want me to just tell you?

THE COURT: Hold on. Which videotape is this?

MR. GOLDBERG: This is the videotape we received last night, your Honor.

THE COURT: Channel 7 videotape that we reviewed?

MR. GOLDBERG: Yes. We reviewed.

MR. COCHRAN: We have an objection. And Mr. Darden asked Mr. Douglas who asked me about it. We said we have an objection. Talk about grandstanding. How is this any different from anything else? We saw this only last night. We've not had a chance to look at it. We need time to look at it. I told him that already.

MR. DARDEN: You're talking about two completely different things, Mr. Cochran.

MR. COCHRAN: Well, I indicated we were talking about the videotape last night.

MR. DARDEN: The information I was given was that KABC was sending over to both sides copies of raw footage from that date with the time stamp on it. So I gave Carl notice saying they were going to do that, and I just wanted you to know so you don't accuse me of a discovery violation later. Then Carl sent me a note as to the raw footage saying they would lodge a foundational objection.

MR. COCHRAN: We lodged an objection to that. We need more time to take a look at that. We haven't had a chance to look at that. We saw it very briefly with the Court. We need time to do that.

MR. SCHECK: I don't think it's necessary, but Mr. Douglas advises me that he spoke to the person at KABC and that they may be off on the times at a range of five minutes. In the final analysis, I don't think this is going to matter much, but, you know, we want to be sure and cautious about it. And we already have a representation from the originator of it that there are foundation problems, particularly if they are going to offer it for purposes of time.

THE COURT: Mr. Goldberg, are you offering this because of the counter and sequence of events?

MR. GOLDBERG: That's one of the reasons, yes, sequence of events.

THE COURT: Don't you think you need a foundation?

MR. GOLDBERG: Well, your Honor, we didn't have a foundation for the Defense videotape, and it's in the same sequence that they said.

THE COURT: But if you recall, we had a hearing outside the presence of the jury so your witness could say which one was in which order. The problem we have here is that you're going to offer this videotape probably for the time that's related in the counter.

MR. GOLDBERG: Right.

THE COURT: So you need foundation for that is the point.

MR. GOLDBERG: Your Honor, all we can give your Honor is an offer of proof saying we contacted people who say the counter is maybe five minutes off. I think we both agree that probably wouldn't be material to the issues in this case.

MR. COCHRAN: Well, we still need that person. That's the person we need, and we shouldn't deviate from the procedure done with all videotapes. We have the right to a hearing. That's what we want. We want a hearing on this issue before we proceed.

MR. DARDEN: Okay. Can I advise the Court of some information I just got?

MR. COCHRAN: Sure.

THE COURT: Thank you, Mr. Cochran. You said sure.

MR. COCHRAN: I'll shut up. Excuse me, your Honor.

THE COURT: I'll just go sit down and you guys--

MR. COCHRAN: No. I want you to stay right here.

MR. DARDEN: Susan sent me a note. KABC in trying to beat land speeds to deliver the tape sent three copies to the Court. Two are beta, one for us, one for the Defense, and the third will be VHS and can be played in Court with the time code showing. The Beta copies have the original time code sequence interned upon them, but it is not visible without the use of clear-playing equipment with the necessary reading device; and the VHS version, the time code is readily visible. As I understand it, Mark Cougan was present and directed--

THE COURT: Photographer? Videographer?

MR. DARDEN: The videographer puts the time code on and can vouch for the time and sequence, and that is what KABC has advised Pat Childs, and that's what she advised us.

THE COURT: The point is, they're entitled to at least a hearing outside the presence of the jury establishing these things. Not that I don't accept what you have represented to me, but they are entitled to that.

MR. SCHECK: Your Honor, I just want to make it clear it's not that I don't accept it either, the final analysis. But if the information that we have may be off by some measure, by only a minute, we just want to know that. Maybe it won't require a hearing.

THE COURT: I agree. But you're entitled to review it and you're entitled to have them lay a foundation, especially if the precise time is what we are interested in here.

MR. SCHECK: We may be able to proceed by way of stipulation and not waste your time.

THE COURT: Do you want to talk amongst yourselves?

MR. SCHECK: No. Once we talk to the people from ABC.

MR. COCHRAN: Can I mention one thing, address one other issue? On cross-examination, we spent a lot of time--they're misleading the jurors. Some of these things really isn't fair. That when you have a hearing, they have--you made a ruling about they intentionally withhold something. We would have to--

THE COURT: Let's not revisit that at this point.

MR. COCHRAN: Can we revisit it before the end of the day?

THE COURT: I've already ruled. You're asking me to revisit it now. I've ruled.

MR. COCHRAN: You ruled and they--well, all right.

THE COURT: I'm going to sustain a foundational objection at this point to the videotape.

(The following proceedings were held in open Court:)

THE COURT: Thank you, counsel. Proceed.

MR. GOLDBERG: Your Honor, I would like to move on then to another videotape. It's Defense 1004, and first there's a clip of Miss Mazzola leaving the location.

THE COURT: All right. Mr. Fairtlough, do you have that available?

MR. FAIRTLOUGH: Yes, your Honor.

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: I believe it's 1102.

(At 11:21 A.M., a videotape was played.)

MR. GOLDBERG: Can we replay that portion for a second. Back it up just a little bit. Stop. Can you just back it up a couple frames? Stop. No. You almost got it. There.

MR. GOLDBERG: Mr. Fung, looking at that bag, does it appear to you that there is some rectangular item in it?

MR. SCHECK: Objection. The evidence speaks for itself.

THE COURT: No question, counsel.

MR. GOLDBERG: Mr. Fung--

MR. SCHECK: Objection. Competency with respect to this. Speaks for itself.

THE COURT: Overruled.

MR. GOLDBERG: Mr. Fung, directing your attention to the bottom part of the bag that Andrea Mazzola is handling, does that--what does that appear--does that appear to be containing something?

MR. FUNG: An object does appear to be at the bottom of that bag, yes.

MR. GOLDBERG: Could we have that item printed, your Honor?

THE COURT: Yes, please. And let's--before we move on from that frame, let's see what comes out. What's the print time on this, Mr. Fairtlough?

MR. FAIRTLOUGH: From the original frame reference where I cued it up is 006. So I would need to rewind it from the beginning and play forward in order to set that frame.

THE COURT: No. I mean, how long is it going to take you to print this copy?

MR. FAIRTLOUGH: It's set now. I can move on.

THE COURT: No. I just want to make sure that we have that. I want to see the quality of the print.

MR. FAIRTLOUGH: It will take about two minutes, your Honor.

THE COURT: All right. Do you need to move this?

MR. GOLDBERG: From this location? The Court is saying that we'll have to delay if we do this?

THE COURT: No. I mean because of the jumping nature of this particular still, I just want to make sure that the quality of our print is precise. That's all.

MR. GOLDBERG: Okay.

THE COURT: Since there's a lot of noise at the top of the picture.

(Brief pause.)

MR. FAIRTLOUGH: Just needs to make one more pass, your Honor, and that should do it.

(Brief pause.)

MR. FAIRTLOUGH: May I approach, your Honor?

THE COURT: Want to show that to Mr. Goldberg, please? Does that capture what you need?

MR. GOLDBERG: Excuse me, your Honor? Yes. That seems to be pretty good.

THE COURT: All right. Proceed.

MR. GOLDBERG: I would like to mark this as People's next in order. It would be--

THE COURT: 185.

MR. GOLDBERG: --185.

THE COURT: People's 185.

(Peo's 185 for id = print)

MR. GOLDBERG: Sir--

MR. GOLDBERG: May I approach the witness again?

THE COURT: You may.

MR. GOLDBERG: Sir, I would like to show you what's previously been marked as 163-h for identification. Can you tell us what that is again?

MR. FUNG: 163-h is a series of three envelopes which are analyzed evidence envelopes.

MR. GOLDBERG: And is one of those the same type of envelope as was used to contain the vial of blood that you received in the envelope from Detective Vannatter?

MR. FUNG: Yes.

MR. GOLDBERG: Which one is that?

MR. FUNG: That would be the gray envelope. It's right here (Indicating).

MR. GOLDBERG: And is the item that appears to be in the bag in the photograph we just saw consistent with that?

MR. SCHECK: Your Honor, objection.

THE COURT: Sustained. Sustained.

(At 11:25 A.M., the playing of the videotape concluded.)

MR. GOLDBERG: Your Honor, perhaps we could ask that be passed around just so the jury can get a sense of what it looks like a little better.

THE COURT: All right. Also, you might want to measure it so there's a precise measurement on the record.

MR. SCHECK: Your Honor, I have no objection doing whatever they want to do with this, but I would request we bring the real thing in.

MR. GOLDBERG: That what?

THE COURT: Yeah. For this purpose, for the jury to appreciate the size of the envelope, let's proceed. But we will bring the original in at some point.

MR. GOLDBERG: Okay.

THE COURT: All right. Why don't we have Mr. Fung just give us the measurements for the record.

MR. FUNG: Length wise, the--from top to bottom, the measurement is approximately 10 and a half inches, and width wise, it's approximately seven and a half inches.

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: And, Mr. Goldberg, may I see 185, please?

MR. GOLDBERG: Your Honor, I didn't write a 185 on it. If I might do that on the reverse.

THE COURT: All right.

MR. GOLDBERG: May I approach?

THE COURT: Please. Thank you.

(Brief pause.)

MR. GOLDBERG: Your Honor, perhaps while we are waiting, I can also mark the print of People's 184 from the telestrator as 184-a.

(Peo's 184-a for id = print)

THE COURT: You want to show that to Mr. Scheck?

MR. GOLDBERG: Yes.

THE COURT: All right. Mr. Goldberg, would you approach.

MR. GOLDBERG: Yes.

THE COURT: Thank you, sir.

(Discussion held off the record between the Deputy District Attorneys.)

MR. GOLDBERG: Your Honor, with the Court's permission, could we pass--

THE COURT: Hold on.

(Brief pause.)

THE COURT: All right. 795 just handed the last item to the bailiff.

MR. GOLDBERG: Could we also pass 185 around?

MR. SCHECK: Which is--how many 185's are there?

MR. GOLDBERG: Well, there's a Court's copy and there's a People's copy. That's our copy.

MR. SCHECK: Can I just look at it for one second?

THE COURT: Sure. Actually why don't we pass around 185 and 163-h at the same time.

(Brief pause.)

MR. GOLDBERG: I am sorry. Perhaps we could have the front of People's 184 put up one more time just so I can get a--

THE COURT: All right. Mr. Goldberg, you had wanted to pass--

MR. GOLDBERG: Yes. They still have 163.

THE COURT: All right. All right. If you'll hand that to juror number 1.

(Brief pause.)

MR. GOLDBERG: Your Honor, can I proceed while we're waiting or does the Court--

THE COURT: Well, I would rather have the jurors concentrating on what they're looking at.

(Brief pause.)

THE COURT: All right. Mr. Goldberg.

MR. GOLDBERG: Now, Mr. Fung, when you saw this scene that we just played a few moments ago that's depicted in the photograph 185, when you saw that for the first time, did that jog your recollection about anything?

MR. SCHECK: Objection. That's leading and misleading.

THE COURT: Overruled on the misleading part. It is leading. Rephrase the question.

MR. GOLDBERG: When did you first see that item, that item of tape?

MR. SCHECK: Your Honor, I think the problem here is--

THE COURT: Vague.

MR. SCHECK: Is he talking about the photograph or the videotape?

THE COURT: I know.

MR. GOLDBERG: Mr. Fung--

THE COURT: Rephrase the question.

MR. GOLDBERG: --I'm talking about the videotape--

THE COURT: Yesterday.

MR. GOLDBERG: --that you've seen that's a still photograph of which is depicted in People's 185. When you saw that, did it jog your recollection about anything?

MR. FUNG: Yes.

MR. GOLDBERG: What was that?

MR. FUNG: It occurred to me that the envelope containing the--containing the vial of blood could very possibly have been in that bag.

MR. GOLDBERG: And when did you first remember the bag at all, the plastic bag?

MR. FUNG: When I saw the video? No. Earlier that morning, I was going through it in my mind and it occurred to me then. Well, I saw the video the day before, a small portion of the video and--

MR. GOLDBERG: Where was that?

MR. FUNG: Here in Court on the monitor (Indicating).

MR. GOLDBERG: He's kind of gesturing to the monitor by himself.

THE COURT: Yes.

MR. GOLDBERG: Okay. And that was the first time that you remember this plastic bag?

MR. FUNG: Yes.

MR. SCHECK: Objection. That question is leading.

THE COURT: Overruled. The answer will stand.

MR. GOLDBERG: Now, did you--from a forensic science standpoint, sir, is it significant to you whether the bag was brought out in a posse box or a plastic bag or paper bag or specifically how you carried it out?

MR. SCHECK: Objection. Leading.

THE COURT: Overruled.

MR. FUNG: No, it's not.

MR. GOLDBERG: Is it significant to you from a forensic science standpoint that the vial is closed and that it is in fact in an evidence envelope?

MR. SCHECK: Objection. Vague as to the word "Significance."

THE COURT: Overruled.

MR. FUNG: Yes.

MR. GOLDBERG: And this was 10 months ago that these events occurred, when you received the vial, about 10 months ago?

MR. FUNG: Just about, yes.

MR. GOLDBERG: Is your recollection perfect as to all of the things that occurred surrounding the receipt of that vial?

MR. FUNG: No.

MR. GOLDBERG: Okay. Your Honor, next I would like to see the videotape that's been marked as Defense 1103 and the portion that shows Detective Vannatter arriving at the location.

MR. SCHECK: Excuse me, your Honor. What is he showing?

THE COURT: Hold on. Hold on. With the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We're over at the sidebar. My recollection is that--wait. I think what happened was, I sustained the objection to Vannatter, but then they withdrew their objection.

MR. SCHECK: No.

MR. COCHRAN: We never saw this. We didn't show it.

MR. SCHECK: No. Matter of fact, what happened is that I put in all the videotapes, showed him all the videotapes. I wanted to put them all in. They objected to all of them. You ruled that the only ones we could show them were going in, going out, the ones where he's in them. We couldn't show the Vannatter picture.

THE COURT: Without foundation.

MR. SCHECK: The reason I wanted to put it in was to show completeness, to make sure everything was clear. Now on redirect examination, he wants to put in the videotape that he objected to us putting in. This is ridiculous.

MR. GOLDBERG: I withdrew my objection for the record. I want to make it very explicitly clear also, we did see a clip that had Detective Vannatter in it. It was at the very tail end of putting the items in the crime scene truck.

THE COURT: All right. They did withdraw their objection.

MR. COCHRAN: If they withdrew the objection, then we have the right to look at this, see what--

MR. SCHECK: The problem is, I thought the Court ruled very clearly I couldn't do it.

THE COURT: I did. Then they withdrew their objection.

MR. COCHRAN: We have a right to see it.

MR. SCHECK: I thought I was prohibited from showing it based on the objection--based on the Court's ruling.

THE COURT: They said in light of the Court's ruling letting in 1 and 2, they withdraw their objection to 3.

MR. COCHRAN: My point is, we have a right to see what they--

THE COURT: No, Mr. Cochran. I'm listening to Mr. Scheck here.

MR. SCHECK: Excuse me. When you say withdraw their objection to 3, talking about 1103. The problem here, your Honor, is, 1103 is a tape that has two sections to it, one of which is him coming out, the other one is Detective Vannatter coming in with black--actually two shots.

THE COURT: Although I must tell you I think this is a lot to do about nothing. Eventually, we're going to see the KABC tape which has all of this stuff together. So--

MR. GOLDBERG: Our position is, all of this is a lot to do about nothing, but we have to raise it.

THE COURT: Since it was not offered during the cross-examination, it's not fair game at this point. So there's a scope objection. Is that what it is?

MR. SCHECK: Yes.

THE COURT: Sustained.

(The following proceedings were held in open Court:)

MR. GOLDBERG: Now, Mr. Fung, when you were in the crime scene processing truck, did you ever say to Andrea Mazzola, "Miss Mazzola, I want you to know I have the Defendant's file so you can witness this"?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained.

MR. GOLDBERG: When you were in the crime scene processing truck, did you ever say anything to Miss Mazzola to make a point to her to see that you had the vial or that the vial was in your possession, your custody?

MR. SCHECK: Objection, your Honor. Leading.

THE COURT: Sustained.

MR. GOLDBERG: Did you ever say anything--make a point to say anything about the vial?

MR. FUNG: No.

MR. GOLDBERG: Did you have any reason to do so?

MR. SCHECK: Objection.

THE COURT: Overruled.

MR. FUNG: No.

MR. GOLDBERG: Okay. Your Honor, at this time, I would like to take another look at the document that's marked 1107. This is the back of one of the pages entitled pheno notes 17, 18 and 19 on it. Maybe we can have a little bit of a closer--close-up version of 17 and 18, between 17 and 18.

MR. GOLDBERG: Sir, did you have an opportunity to take a closer look at this document and also Xerox copies of this document, particularly the item that appears to have been erased between 17 and 18?

MR. FUNG: Yes.

MR. GOLDBERG: And is that in fact your handwriting?

MR. FUNG: Yes.

MR. GOLDBERG: And your date?

MR. FUNG: Yes.

MR. GOLDBERG: Did you initial it in some fashion or did you sign your name or--

MR. FUNG: I put my initials towards the right portion of that circle, if you can see it.

MR. GOLDBERG: And the date that you put on there was July the 5th?

MR. FUNG: Yes.

MR. GOLDBERG: Was there anything of significance that was happening in this case immediately following that date?

MR. FUNG: One of the hearings was occurring very soon after that date. I forget which one it was.

MR. GOLDBERG: Did you testify on July the 6th and 7th?

MR. FUNG: Yes.

MR. GOLDBERG: And when you testified in Court, sir, is it your practice to review documents in preparation for--

MR. SCHECK: Objection. Leading.

THE COURT: Overruled.

MR. GOLDBERG: --for testimony?

MR. FUNG: Yes.

MR. GOLDBERG: Now, in looking at this document, have you reconstructed the events that occurred on the 5th that caused the 7-5 writing and your initials to be placed on that document?

MR. FUNG: Somewhat, yes.

MR. GOLDBERG: What's that?

MR. FUNG: I was going through the crime scene checklist and saw that the items were switched or--not switched--were still listed with the tennis shoes as being 17 and the blood as 18, and I wanted to put a note there for myself if I came across them that they were--I had switched the numbers. And after I had wrote it down, I erased it because I wasn't sure if I should alter the document as I was going to Court.

MR. GOLDBERG: So you weren't sure whether at this point you should make another entry on the document?

MR. FUNG: That's correct.

MR. GOLDBERG: Now, is this something that you have a sharp recollection of or is this something that you've basically reconstructed after the fact?

MR. FUNG: This is something I reconstructed.

MR. GOLDBERG: And is that based upon the date of 7-5 in relationship to your preliminary hearing testimony?

MR. FUNG: Yes.

MR. GOLDBERG: Now, sir, you didn't seem to do a very good job erasing this item, did you?

MR. SCHECK: Objection. The document speaks for itself.

THE COURT: Overruled.

MR. FUNG: That's correct.

MR. GOLDBERG: I mean, do you have erasers available to you at the Scientific Investigation Division?

MR. FUNG: Yes.

MR. GOLDBERG: Is there a shortage of erasers?

MR. FUNG: No.

MR. GOLDBERG: Is there any reason why you couldn't have done a better job erasing it if you had wanted to?

MR. FUNG: No.

MR. GOLDBERG: And, sir, if you were trying to alter a document with some sort of--

MR. SCHECK: Objection, your Honor. Leading.

THE COURT: Overruled.

MR. GOLDBERG: --evil intent, do you think it would be a good idea to date--

THE COURT: That is.

MR. GOLDBERG: --and put your initials on it?

THE COURT: Sustained. Leading.

MR. GOLDBERG: Well, let me ask you this, Mr. Fung. If you wanted to alter a document with some sort of intent to mislead, would you leave your initials and the date on it?

MR. SCHECK: Objection, your Honor. Is this a hypothetical question--

THE COURT: Sustained. I've sustained the objection.

MR. GOLDBERG: When you did this, did you have any intent to mislead anyone?

MR. FUNG: No.

MR. GOLDBERG: Or hide anything from anyone?

MR. FUNG: No.

MR. GOLDBERG: All right. Now, did you know Detective Lange or Detective Vannatter prior to this--prior to the events on the 13th?

MR. FUNG: I had spoken to them on the phone, taken requests from them over the years and I had worked personally with them on two to three other cases.

MR. GOLDBERG: Were you social friends at all?

MR. FUNG: No.

MR. GOLDBERG: And what about Detective Fuhrman? Did you know him at all?

MR. FUNG: I have never met Detective Fuhrman before June 13th.

MR. GOLDBERG: What about Detective Phillips? Did you know him?

MR. FUNG: No.

MR. GOLDBERG: Your Honor, at this time, I was going to move to another topic. I don't know whether the Court wanted to proceed. I see that we do have some time.

MR. GOLDBERG: Okay. Mr. Fung, I wanted to ask you some questions about your grand jury testimony. But before doing that, I want to ask you first as a forensic scientist, as a Criminalist, when someone asks you the question, did you collect a particular item of evidence, what does that term entail, "Collect"?

MR. FUNG: To me, "Collect" entails the searching for the item, the identification of an item as evidence, the documentation of that evidence through notes, measuring it and photo documentation and describing what the item is. That's all done before the actual collection or picking up of the evidence.

MR. GOLDBERG: Now, of those various steps that go before the actual physical picking up, of numbering and photo documenting and so on, which of those steps is most important?

MR. FUNG: They're all equally important.

MR. GOLDBERG: Are they equally important to the step of actually physically picking up?

MR. FUNG: They're important in the--to maintain the integrity of the evidence.

MR. GOLDBERG: Now, sir, when you were at the Rockingham location in the morning of the 13th, using the term "Collect" in the way that you just did, were you involved in the collection process of all of the evidence that morning?

MR. FUNG: Yes.

MR. GOLDBERG: And how so?

MR. FUNG: I identified the items that we were going to collect that day or that morning. I directed the photographer as to which photographs to shoot. I assisted in helping to measure each and every one of those stains, and for some of the items, I actually did some of the swatching.

MR. GOLDBERG: What about with respect to the items at Bundy that were collected on the 13th? Did you participate in the collection process as you just described it on all of those items?

MR. FUNG: Yes.

MR. GOLDBERG: And how was that?

MR. FUNG: I identified which items we were going to collect. I helped with the measurement of the items that we were going to collect and I actually did some of the swatching and collected some of the stains myself.

MR. GOLDBERG: All right. So had you filled out the crime scene checklist portion that lists the people who act--who do the collection where it says "By" in the crime scene checklist? Do you know what I'm referring to?

MR. FUNG: In what time frame?

MR. GOLDBERG: Well, if you had filled it out on the 13th.

MR. FUNG: Yes.

MR. GOLDBERG: As to let's say stain no. 6 just to pick one, what would you have filled it out as?

MR. SCHECK: Objection to any hypothetical. Maybe--I think that calls for speculation and it's vague. He should testify to what he did or he didn't do.

THE COURT: Overruled.

MR. FUNG: We were working as a team that day, and if I was to fill it out, I would have filled out that we--we, being--meaning Miss Mazzola and myself, both did it.

MR. GOLDBERG: Okay.

MR. SCHECK: Motion to strike as nonresponsive.

THE COURT: Overruled.

MR. GOLDBERG: But later on, didn't you go through a copy of those checklists with Miss Mazzola and kind of check off either both or Andrea Mazzola or yourself next to various items?

MR. FUNG: Yes.

MR. GOLDBERG: All right. And when you were doing that, what was your intent in doing that?

MR. FUNG: It had been an issue in the--I believe it was the Griffen hearing. It was brought up by the Defense--

MR. SCHECK: Your Honor?

THE COURT: All right. Ask another question.

MR. GOLDBERG: So it was after this hearing that we referred to as the Griffen hearing that you did this, when you were having a conversation with Miss Mazzola trying to figure out who did what?

MR. FUNG: Yes.

MR. GOLDBERG: And what were you trying to figure out specifically in terms of collection during those conversations?

MR. FUNG: Specifically we were trying to remember who did the actual recovery phase or picking up of the evidence.

MR. GOLDBERG: You mean the physical phase of actually physically picking up the evidence?

MR. FUNG: Yes.

MR. GOLDBERG: And that's what you were trying to do?

MR. FUNG: Yes.

MR. GOLDBERG: Did that become an issue in your view at this hearing that you testified to that we referred to as the Griffen hearing?

MR. SCHECK: Objection, your Honor. I move to strike and I ask for a curative instruction.

THE COURT: Overruled. But it is--as to that request. Sustained as to the nature of the question.

MR. GOLDBERG: As to what?

THE COURT: The nature of the question. Rephrase the question.

MR. GOLDBERG: There was this hearing that you testified at prior to doing this process with Miss Mazzola; is that correct?

MR. FUNG: Yes.

MR. GOLDBERG: All right. And at that hearing, in your view, did the issue of who physically did what come up?

MR. FUNG: Yes.

MR. GOLDBERG: And was that the first time in your view that anyone spent a lot of time trying to figure out who physically did what at the crime scene?

MR. SCHECK: Objection.

THE COURT: It's vague. Sustained.

MR. GOLDBERG: Prior to that, had any member of the Prosecution interviewed you--interview you with respect to who physically did what at the crime scene?

MR. FUNG: No.

MR. GOLDBERG: Had any member of the Defense asked you any questions extensively about who did what at the crime scene?

MR. SCHECK: That I will object to, your Honor, and--

THE COURT: Sustained. It's vague.

MR. SCHECK: Your Honor, and it's misleading.

THE COURT: It's vague. I've sustained the objection. I'm asking him to rephrase it.

MR. SCHECK: Well, I have a legal objection at some point. Why don't we just let him finish.

THE COURT: Rephrase the question.

MR. GOLDBERG: Well, prior to that time, sir, had you testified in a number of--in a preliminary--excuse me--in a grand jury hearing?

MR. FUNG: Yes.

MR. GOLDBERG: Okay. Well, we'll get to that later. And then had you also testified in a preliminary hearing?

MR. FUNG: I don't recall the exact order.

MR. GOLDBERG: Okay. Now, who was in charge of the crime scene in terms of the work the Criminalists were performing between you and Miss Mazzola at the Rockingham location in the morning?

MR. FUNG: I was.

MR. GOLDBERG: And who was making the decisions there in terms of the discretionary type decisions that are made by Criminalists?

MR. FUNG: I made the decisions.

MR. GOLDBERG: Did you feel that you were responsible for all of the decisions that were made as to the collection process at that scene?

MR. FUNG: Yes.

MR. GOLDBERG: And with respect to the Bundy scene, who was in charge of that scene?

MR. FUNG: In terms of the evidence collection, I was.

MR. GOLDBERG: Did you feel that you were responsible for the collection process at that scene?

MR. FUNG: Yes.

MR. GOLDBERG: And what about the return trip to Rockingham on the 13th? Who was in charge of that?

MR. FUNG: I was.

MR. GOLDBERG: Did you feel responsible for the collection process there?

MR. FUNG: Yes.

MR. GOLDBERG: If you were to divide the work up of a Criminalist into the mental component of deciding what to collect, what not to collect in the discretionary type decisions and then a physical component of actually collecting, which component were you involved in do you believe primarily?

MR. SCHECK: Objection.

THE COURT: Overruled.

MR. FUNG: Primarily I was involved with the mental aspect of the crime scene investigation.

MR. GOLDBERG: And what about Andrea Mazzola?

MR. FUNG: She was the physical portion.

MR. GOLDBERG: Okay. And when you testified at the grand jury as to who was collecting what, was this your state of mind with respect to the division of authority there?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: What was your frame of mind with respect to who was responsible for all the collection when you testified at the grand jury?

MR. FUNG: At the grand jury hearing, I was in charge of the evidence collection and I did--and I was the supervisor and I made the decisions.

MR. GOLDBERG: And under this state of mind when you testify at the grand jury, who collected the evidence in the sense that you have defined it here today?

MR. SCHECK: Objection.

THE COURT: Overruled.

MR. SCHECK: Calling for--

THE COURT: Overruled.

MR. FUNG: It was me.

MR. GOLDBERG: Your Honor, I would like to continue with these photographs later, but maybe this would be a good time to break.

THE COURT: All right.

MR. COCHRAN: May we approach, your Honor, on the record?

THE COURT: After. Ladies and gentlemen, we're going to take our recess for the morning session. Please remember all my admonitions to you; do not discuss the case amongst yourselves, don't form any opinions about the case, do not allow anybody to communicate with you with regard to the case, do not conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. Monday. Thank you. All right. All right. With the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We're over at the sidebar.

MR. SHAPIRO: Your Honor, I would like to put some observations on the record regarding the preference that the Court is paying towards the Prosecution when they violate the Court rulings and the harsh tones that the Court uses, particularly towards Mr. Scheck and Mr. Neufeld when they do some things. And I don't believe that the Court is aware of it. The fact is very clear to me as an observer in watching that when it's time to caution the Prosecution, your Honor calls them up to sidebar off the record and lets tempers calm down and put things in perspective. However, when it comes to Mr. Scheck or Mr. Neufeld, it's done directly in front of the jury and it comes very one-sided from my point of view, and I wanted the record to reflect that.

MS. CLARK: First of all, there should only be two lawyers here. So somebody gets to sit down; isn't that right? Either that or ask Mr. Goldberg to join us.

MR. DARDEN: I have something I wanted to put on the record that doesn't relate directly to that.

THE COURT: Do you have any comment as to that observation?

MR. DARDEN: May I have one moment?

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Your Honor, I think perhaps Mr. Shapiro should go out in the real world and hear the public's perception of how the Prosecution is being treated as opposed to the Defense. I think most people feel the Court defers more to the Defense than to us. But, you know, that's a non issue as far as I'm concerned. It's Good Friday, and though I will be working, I would just as soon put these nasty thoughts behind us. And do we have to fight over every petty little issue?

THE COURT: Well, I'm glad to see both sides feel that they're being treated badly by the Court. So that means it's pretty even.

MR. DARDEN: There's another issue if I may. As the Court will recall, I delivered to the Court several audiotapes.

THE COURT: Yes.

MR. DARDEN: And I believe the date was--I'm not sure, but I believe it was March 31. But there is a record and I ask that those audiotapes--I have no objection to the Court releasing those tapes to the Defense. And I'll state that they are taped conversations between Mr. Kato Kaelin and his book author. In any event, these tapes relate--

THE COURT: Let's bring Mr. Douglas up to speed. There was a 1054.7 in camera hearing with the Prosecution. They disclosed to the Court the existence of certain tape recordings, excerpts of a statement by Kato Kaelin to an apparent book author. They were investigating Mr. Kaelin for the possibility of a number of things I would imagine and asked that they be allowed to complete their investigation before disclosing that to the Defense. And Mr. Darden?

MR. DARDEN: And as I recall, I think I declined to suggest that Mr. Kaelin was a criminal suspect at that point, but I did ask leave of the Court to have the record sealed so that I could attempt to obtain other documents that related to the audiotapes including a book contract.

THE COURT: Excuse me just a second.

(Brief pause.)

MR. DARDEN: Including the contract between Mr. Kaelin and Mr. Elliott and St. Martens Press as well as the book proposal that was apparently submitted on our videotape. And so we have obtained those items and not pursuant to an SDT, and I will turn those items over to the Defense on Monday. As for the audiotapes, I have no objection to the Court releasing the tapes. We surrender them to the Court.

THE COURT: Are those copies?

MR. DARDEN: Those are the--both of the original ones, but there are copies. The originals are apparently with the book author, Michael Elliott, and we have copies. So I have no objection if you give your copies to the Defense so they can copy them.

THE COURT: All right.

MR. DARDEN: At their expense. And I will turn over to them on Monday the contract which is not signed and the book proposal. We may have one or two transcripts of a couple of the tapes; and if those are in existence as yet, we will turn those over on Monday as well. And those apply only to certified transcripts by certified Court reporters.

THE COURT: All right.

MR. DOUGLAS: Thank you.

(At 12:10 P.M., an adjournment was taken until, Monday, April 17, 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 Friday, April 14, 1995

Volume 126 pages 22800 through 22943, inclusive

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, 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 Robert D. Blasier, Esquire, Peter Neufeld, Esquire, William C. Thompson, Esquire

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I N D E X for volume 126 pages 22800 - 22943

day date session page vol.

Friday April 14, 1995 A.M. 22800 126

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX of witnesses

People's witnesses direct cross redirect recross vol.

Fung, Dennis 126 Arthur 22867bg

ALPHABETICAL INDEX of witnesses

Witnesses direct cross redirect recross vol.

Fung, Dennis 126 Arthur 22867bg

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EXHIBITS

People's for in exhibit identification evidence page vol. Page vol.

183 - Photograph of 22899 126 the front of an LAPD analyzed evidence envelope

184 - Photograph of 22899 126 the back of an LAPD analyzed evidence envelope

184-a - Photograph of 22916 126 the back of an LAPD analyzed evidence envelope with red markings

185 - Photograph of 22899 126 Criminalists Fung and Mazzola leaving 360 north Rockingham with another individual