Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also being present on behalf of Capital Cities/ABC, Incorporated, Jana Winograde, Esquire; and on behalf of Mark Coogan, Steven M. Perry, Esquire.)
(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: Good morning, counsel. I trust we all had a pleasant holiday weekend. All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Darden and Mr. Goldberg. The jury is not present. Counsel, anything we need to take up before we invite the jurors to join us? Mr. Shapiro, good morning, sir.
MR. SHAPIRO: Good morning, your Honor. Your Honor, this morning I privately apologized to Mr. Dennis Fung for some remarks that I made outside of Court and I want to publicly apologize to him and to all my friends in the Asian American community, that last week a friend of ours from a Chinese restaurant that we frequent sent us some fortune cookies. They were at the counsel table when I arrived after lunch on Thursday. I had one and offered some to two members of the press and then made a remark which was meant to be facetious and was taken by those who received it as being facetious; however, I understand the sensitivities of people, and in hindsight, those remarks could have been misconstrued as being something other than just in humor and being a pun.
As your Honor knows me for a long period of time, my career has been based on representing individuals who are primarily of minority groups, and I harbor no racial bias towards any group or any community in the world. My heart has been heavy all weekend even if one person has been offended, and for that I sincerely apologize. Mr. Cochran today I understand was also reported as having passed out fortune cookies. He has not. I was the only one responsible. But on behalf of myself and Mr. Cochran, both of us through our careers have built a solid reputation representing minority groups, of which we are both a part, and therefore, if any person or persons was offended, my sincere and most humble apologies are given, and especially to Mr. Fung. Thank you, your Honor.
THE COURT: All right. Thank you, Mr. Shapiro. All right. Counsel, I understand we have an issue to resolve regarding videotapes. Do we need to view those?
MR. COCHRAN: Yes.
THE COURT: What is the nature of this videotape, Mr. Goldberg?
MR. GOLDBERG: Your Honor, we received another videotape depicting events at Rockingham with a time counter in it and it depicts some of the same events that we have already seen from different angles, in our view, better angles, and one new event that was not seen on the other videotapes. We would like to use it, and also use it in conjunction with the time counter to show when those events occurred. We provided the Defense with a beta copy of that tape, which apparently they have not viewed, because they don't have a beta tape player, so that is where we are.
THE COURT: All right. Mr. Scheck.
MR. SCHECK: Yes, I understand, your Honor.
THE COURT: Good morning, sir.
MR. SCHECK: We would like to avail ourselves of the opportunity to look at that in chambers and confer among ourselves, since it is new footage. We haven't seen it.
THE COURT: All right. Is there any disagreement as to--I see we have Mr. Coogan here from KABC. Is there any dispute as to the foundation?
MR. COCHRAN: We haven't seen it.
THE COURT: You don't know until you see it. All right. So we are going to have to sit and watch this for 25 minutes.
MR. GOLDBERG: I didn't hear what the answer was as to foundation.
THE COURT: They indicated they wanted to see it first before we dealt with any foundational issues. All right. Then we will stand in recess until counsel have had the opportunity to review this new videotape. I will make my VHS available to you.
MR. SCHECK: Thank you, your Honor.
THE COURT: All right.
(Recess.)
THE COURT: Back on the record. All parties are again present. And counsel, you've had the opportunity to review the VHS version of the tape from KABC news. Mr. Cochran, Mr. Scheck, any comment?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Your Honor, we have viewed the tape. It is certainly enlightening. The--in terms of the times, I think it is the best recollection of Mr. Coogan, that in terms of the process by which he sets the time, he doesn't think it would be off by more than thirty or forty seconds. Out of an abundance of caution, but in an estimate that he thinks he doesn't believe would really be accurate, he has indicated it could be off as much as five minutes. Frankly, I think that we should go with his best recollection and stipulate in terms of exactly what he did, that is to say--
THE COURT: Do you want to stipulate or do you want to have a hearing outside the presence of the jury? Mr. Coogan is here with his counsel.
MR. SCHECK: I'm just talking about the times. He submitted an affidavit by saying he could be off by as much as five minutes, but in talking with him, I think the Prosecution will agree that his best estimate is really no more than thirty or forty seconds, so I would rather go with that because I think that is his best recollection.
THE COURT: Mr. Goldberg, what is your position?
MR. GOLDBERG: Well, I think we should just go with what he said and we could probably just ask him exactly what he said and then stipulate to that, which is, I believe, that he looks at the clock in the station, which is apparently highly accurate, periodically, and sets his watch by that clock so that his best estimate as to how far off he is is about thirty seconds.
THE COURT: Let me ask you this: Do we have a stipulation or do we have to put something on the record?
MR. GOLDBERG: Well, we never had an opportunity to discuss it with counsel.
MR. SCHECK: Sounds like we agreed on the time.
MR. GOLDBERG: That is his best recollection, but out of an abundance of caution, it could conceivably be off by as much as five minutes.
MR. SCHECK: I would rather go with what his best recollection of what happened is, rather than any guesses. That is all. I mean, that is what I would propose to stipulate to.
THE COURT: All right. Is that stipulation acceptable to the People, the thirty to forty seconds?
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Well, I would rather have what the actual truth is and then perhaps maybe we should have a little hearing on that issue, if the Court wants to, or--
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Do you want to call Mr. Coogan out of order in front of the jury to lay the foundation?
MR. GOLDBERG: Well, maybe if counsel and I sit down with Mr. Coogan we can come up with an exact precisely worded stipulation.
THE COURT: Mr. Coogan, come on up, and counsel, your name for the record.
MR. PERRY: Steven Perry from Munger, Tolles and Olson, your Honor.
THE COURT: All right. Good morning, counsel. All right. Counsel, why don't you confer with Mr. Coogan and see if we can save some time here.
(Discussion held off the record between Defense counsel, Prosecution counsel, Mr. Perry and Mr. Coogan.)
THE COURT: All right. Mr. Goldberg, Mr. Scheck, have we agreed upon a stipulation regarding the time stamp?
MR. SCHECK: I believe we have, your Honor.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Yes. The proposed stipulation is that Mr. Coogan be deemed to have been called, duly sworn and testified that he makes it his practice to check his personal watch, his wristwatch, against the station clock, which he does every two to three weeks, and sets them, that when he does this, that he notices that he is off by no more than thirty to forty seconds, that he told the camera woman on June the 13th, who shot the videotape images that we are going to be showing, to set the camera's clock and that it was set against his watch, that the items--that the various clips are in sequence and that the clock and the camera continues to run after the camera is off.
MR. SCHECK: Umm--
THE COURT: All right. Is that stipulation acceptable to the Prosecution? I mean, excuse me, to the Defense?
MR. SCHECK: Yes.
THE COURT: All right. Then that is accepted by the Court, and Mr. Goldberg, you are going to offer that stipulation before the jury; is that correct?
MR. GOLDBERG: Yes.
THE COURT: All right.
MR. SCHECK: Your Honor, before Mr. Perry and Mr. Coogan leave, we had subpoenaed footage and outtakes from Bundy and we have some concern about selective production. We would ask that the Court order KABC to turn over to us their outtakes from Bundy if they are going to be turning over the outtakes from Rockingham. I think in the interest of getting to the truth here, I would ask the Court to order them to turn over their outtakes from Bundy.
THE COURT: Well, that would be in the form of a formal motion on written notice, et cetera, et cetera. I am not inclined to do that without formal motion.
MR. PERRY: Thank you, your Honor.
THE COURT: Outtakes being a hot topic of litigation.
MR. SCHECK: Your Honor, when we subpoena them, we don't get them, but these are turned over. I mean, I just think in fairness--
THE COURT: Well, counsel, I agree with you that maybe there is an issue here.
MR. SCHECK: Okay.
THE COURT: You need a noticed motion before I start.
MR. SCHECK: Well, this just came up.
THE COURT: Okay. You've got counsel's card.
MR. SCHECK: I do.
MR. COCHRAN: I do.
THE COURT: You know where to find him.
MR. SCHECK: Your Honor, I have one more motion.
THE COURT: Thank you, counsel. Thank you, Mr. Coogan.
MR. SCHECK: One more request before the jury is brought back, and that is, I took a look at the Court's proposed charge with respect to the page 4 of the Rockingham checklist as you wrote it and made one--two small additions concerning the fact that--
THE COURT: All right. Counsel, I indicated that we are going to take up these matters on Wednesday.
MR. SCHECK: Your Honor, if I may, I would ask you to peruse this and take a look at it for this reason--
THE COURT: Counsel, we are going to discuss it on Wednesday. That is the end of the subject.
MR. SCHECK: Can I have this alternative marked and I would like to make this record?
THE COURT: No; Wednesday.
MR. SCHECK: It won't take very long. It will take a few minutes.
THE COURT: Mr. Scheck, I'm going to tell you for the fourth time, no. Sit down.
MR. SCHECK: All right.
THE COURT: Let's have the jury.
(Brief pause.)
MR. GOLDBERG: Your Honor, we would like a copy of the tape with the counter, if we might do so, but I think only the Court's copy has that.
THE COURT: All right. Who has the actual physical custody of that? Mrs. Robertson, do you have that tape now?
(The following proceedings were held in open Court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: First of all, let me apologize to you. Mr. Fung, would you have a seat, please. Let me apologize to you again for our late start this morning. We had some matters that I had to take up out of your presence. I did not anticipate that they would take so long. I trust we all had an interesting and entertaining weekend?
THE JURY: Yes.
THE COURT: Good. All right. Thank you. Also, at the--because we have lost some time this morning, we are going to reconvene at one o'clock rather than our usual 1:30, so a little quicker lunch hour, but I would like to get as much time in front of the jury as possible. Also, some matters that have come up that have been brought to my attention regarding specifically issues that impact our jurors, and it will be necessary for me to talk to each one of you individually and I'm going to start that process this afternoon, so when we recess Court for the day, I'm going to call you in one at a time. I anticipate being able to get to perhaps maybe three or four of you every afternoon between 4:30 and 6:00 for the next several days, and I will take you in order starting with juror no. 1 and I need to discuss some matters with you--each of you privately with a few of the lawyers present, so just so you understand what will be going on. All right. Mr. Fung.
Dennis Fung, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
MR. GOLDBERG: Your Honor--
THE COURT: All right. Mr. Dennis Fung is again on the witness stand undergoing redirect examination by Mr. Goldberg. Good morning again, Mr. Fung.
MR. FUNG: Good morning.
THE COURT: You are reminded, sir, you are still under oath. And Mr. Goldberg, do we have the tape? Mr. Scheck, do we have the tape? The tape?
(Discussion held off the record between Defense counsel.)
THE COURT: Did you leave it in the machine?
MR. SCHECK: Yes.
MR. GOLDBERG: Your Honor, perhaps I can mark that now while we are getting it.
THE COURT: I want to make sure that Mrs. Robertson has physical custody of the tape.
(Brief pause.)
THE COURT: All right. Mrs. Robertson advises me there is no tape in the machine.
(Brief pause.)
MR. SCHECK: We got it.
THE COURT: All right. Mr. Goldberg.
MR. GOLDBERG: Thank you. I would like to mark as my next exhibit in order, I believe it is 186.
THE COURT: All right. People's 186, videotape.
(Peo's 186 for id = videotape)
MR. GOLDBERG: Yes. And I believe it depicts some footage at the Rockingham location.
THE COURT: All right. You may proceed.
MR. GOLDBERG: Your Honor, I wanted to show this tape as my next exhibit, but may I offer the stipulation now?
THE COURT: Yes.
MR. GOLDBERG: Okay. Counsel, will you stipulate that Mark Coogan of KABC be deemed to have been called, duly sworn and testified that People's 186 is a videotape that was shot on June the 13th of 1994, that he makes it his practice to check his personal watch against the station clock which he does every two to three weeks in order to set them, that when he does this he has noticed that he is off by no more than thirty to forty seconds, that he told the camera woman that shot this tape to turn on the clock inside the camera which was set against his watch. The sequences contained in the tape are in sequence chronologically and that the clock on the camera continues to roll even when the camera is off.
MR. SCHECK: Yes, that is what Mr. Coogan would testify to.
THE COURT: All right. The stipulation is accepted by the Court. Ladies and gentlemen, as I told you when we began the trial, a stipulation between the attorneys is an agreement between the parties as to certain facts. You are to accept those facts as being true. All right. Mr. Goldberg, you may proceed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: I would like to play portions of the tape.
THE COURT: All right. Let's make sure the monitor in the front is working.
(Brief pause.)
THE COURT: Juror no. 1, is that working?
JUROR NO. ONE: Yes, it is.
(Brief pause.)
(At 10:24, People's exhibit 186, a videotape, was played.)
MR. GOLDBERG: Perhaps we could stop it for just one minute. Okay. It is at--
THE COURT: 17:12.
MR. GOLDBERG: --17:12.
REDIRECT EXAMINATION (RESUMED) BY MR. GOLDBERG
MR. GOLDBERG: Now, Mr. Fung, at this point in the videotape, what has just happened?
MR. FUNG: Criminalist Mazzola and I have just taken back the evidence and placed it into the crime scene truck.
MR. GOLDBERG: And 17:12 is 5:12?
MR. FUNG: Yes.
MR. GOLDBERG: Perhaps we can continue now, Mr. Fairtlough.
(Discussion held off the record between the Deputy District Attorneys.)
(The videotape resumes playing.)
MR. GOLDBERG: Perhaps we can rewind that and take a look at that again.
MR. GOLDBERG: This is at 17:17, Mr. Fung, which would be 5:17 in the evening?
MR. FUNG: Yes.
MR. GOLDBERG: Do you recognize anything about the item that Detective Vannatter was holding? Maybe we can rewind that again. Can we go slowly? Can we get it right when it flipped back, right when the item flipped back.
(The videotape resumes playing.)
MR. GOLDBERG: If we could go in slow motion possibly. Now, look carefully, Mr. Fung, from when the wind pushes the top of the item back. Okay. There, there, just one frame--one frame or two frames back. There.
THE COURT: All right. 17:17:07:17 on the counter. Can we get a better still on that?
MR. FAIRTLOUGH: Yes, your Honor.
MR. GOLDBERG: Yeah, right there.
MR. FUNG: Right there.
MR. GOLDBERG: That one. It was about a few--about two--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: There. Is it possible to print that out, Mr. Fairtlough?
(The videotape resumes playing.)
MR. GOLDBERG: Your Honor, perhaps we could have the printout marked as 186-A.
THE COURT: All right. Just so the record is complete, this is frame 17:17:07 sub 20 on the counter.
(Peo's 186-A for id = photograph)
MR. GOLDBERG: Your Honor, I would like to approach the witness and show him People's 163-H again, if I may.
THE COURT: You may.
MR. GOLDBERG: Sir, I'm showing you 163-H again. Can you hold up the item there that constitutes the type of gray envelope into which reference samples are placed and show the jury?
MR. FUNG: (Witness complies.)
MR. GOLDBERG: Okay. Now, if you look at the reverse side of that, is that the way these envelopes typically appear?
MR. FUNG: Yes.
MR. GOLDBERG: And they have--they have a little clasp?
MR. FUNG: There is a clasp with a hole in the flat section of the envelope.
MR. GOLDBERG: When you worked in toxicology at the Los Angeles Police Department did you see these kind of envelopes on a regular basis?
MR. FUNG: Yes.
MR. GOLDBERG: And what does the item in Detective Vannatter's hand appear to be to you?
MR. FUNG: It appears to be a gray analyzed evidence envelope that typically holds biological specimens.
(Discussion held off the record between the Deputy District Attorneys.)
(Brief pause.)
MR. GOLDBERG: Your Honor, maybe I can place a 186-A on the reverse side of this.
THE COURT: You may.
MR. GOLDBERG: Okay. Let's continue with the tape if we can, Mr. Fairtlough.
(The videotape resumes playing.)
MR. GOLDBERG: Maybe we can back up again, Mr. Fairtlough, and take another look at the sequence inside the foyer area.
(The videotape resumes playing.)
MR. GOLDBERG: Stop. Can you back up for just a few frames?
(Brief pause.)
MR. GOLDBERG: Okay. One or two frames forward. There.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Can you go like two frames forward? Okay. There. Stop. Can we get a print of that, Mr. Fairtlough? That is at 17:18:57, your Honor.
THE COURT: 12.
MR. GOLDBERG: Yes.
(Brief pause.)
THE COURT: Do you want to mark a printout of this frame 186-B?
MR. GOLDBERG: Yes, your Honor.
(Peo's 186-B for id = photograph)
MR. GOLDBERG: Now, Mr. Fung, did you have the opportunity to take a look at this videotape yesterday several times?
MR. FUNG: Yes.
MR. GOLDBERG: And what does the item in your hand appear--what is the item in your hand?
MR. FUNG: The--there are two things I am carrying. One is a plastic bag and the other is an envelope.
MR. GOLDBERG: Did this refresh your recollection, sir, as to where you were at the time that you received the envelope from Mr. Vannatter?
MR. FUNG: Yes, it did.
MR. GOLDBERG: Where was that?
MR. FUNG: That was in the foyer at Rockingham.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Let's continue with this tape, if we can, very slowly, Mr. Fairtlough.
(The videotape resumes playing.)
MR. GOLDBERG: Mr. Fairtlough, can you see if you can get that second zoom-in that we just saw, a few frames back.
(Brief pause.)
MR. GOLDBERG: Right there, (Indicating). Let's go several frames forward from here, Mr. Fairtlough.
(The videotape resumes playing.)
MR. GOLDBERG: Can we back up for a moment?
(Brief pause.)
MR. GOLDBERG: Mr. Fairtlough, can you see if you can clear up this image at 17:18:57:17.
THE COURT: You just lost it.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Just a few frames before this.
(Brief pause.)
THE COURT: 17 on the last counter.
(Brief pause.)
MR. GOLDBERG: Why don't you try backing up--reversing a little bit and let's see if we can get a shot of it that way.
(Brief pause.)
THE COURT: Isn't this the first sequence?
MR. GOLDBERG: No, this is the second, the second sequence of the foyer.
THE COURT: I think this is the first sequence.
MR. GOLDBERG: Mr. Fairtlough, can you go forward to 17:18:57.
(Brief pause.)
THE COURT: Mr. Goldberg.
MR. GOLDBERG: I think it was right before this that there was another shot of the--
THE COURT: 17:18:57 is something that is People's 186-B. We have printed this.
MR. GOLDBERG: That is 57:12.
THE COURT: Okay.
MR. GOLDBERG: And it is slightly after that there is another--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Let's do it this way: Let's start and just run it through in real time, okay, from the beginning of the sequence of the foyer.
(The videotape resumes playing.)
MR. GOLDBERG: Okay. Now, we are at 17:19:40.
MR. GOLDBERG: In these frames can you still see the item in your hand?
MR. FUNG: Yes.
MR. GOLDBERG: And what are those items, Mr. Fung?
MR. FUNG: The items appear to be an envelope and a plastic bag.
MR. GOLDBERG: And the plastic bag, which plastic bag is that?
MR. FUNG: That is the plastic bag that Miss Mazzola carried out to the crime scene truck on the second trip.
MR. GOLDBERG: Okay.
MR. FUNG: And the envelope is--the envelope is the envelope which contained the blood vial given to me by Detective Vannatter.
MR. GOLDBERG: Now, sir, the gentleman who has his back to the door, to the camera, do you know who he is?
MR. FUNG: Yes. He is an LAPD photographer, Mr. Wilson.
THE COURT: That is referring to frame 17:19:44:06.
MR. GOLDBERG: Sir, as you sit here today, independent of what you have seen on the videotape, do you have a recollection of Mr. Wilson being there?
MR. FUNG: I know that he was in the area, but I don't know how close--close that he was watching.
MR. GOLDBERG: From your own independent recollection?
MR. FUNG: From my independent recollection.
MR. GOLDBERG: Were you paying attention to who was around you at the time that this transaction occurred?
MR. FUNG: No.
MR. GOLDBERG: Mr. Fairtlough, maybe we can continue.
(The videotape resumes playing.)
MR. GOLDBERG: Maybe we can just stop for one moment. We are at 17:42:52:22.
MR. GOLDBERG: Is that correct, Mr. Fung?
MR. FUNG: Yes.
MR. GOLDBERG: And this is a shot of what happening?
MR. FUNG: This is a shot of criminalist Mazzola and myself leaving the Rockingham address.
MR. GOLDBERG: Okay. You can continue forward.
(The videotape resumes playing.)
MR. GOLDBERG: Let's just stop for a moment.
MR. GOLDBERG: Mr. Fung, do you have an independent recollection, as you sit here today, of placing the item that you received from Detective Vannatter, the envelope, into the plastic bag?
MR. FUNG: Not an independent recollection, no.
MR. GOLDBERG: Okay. And when you looked at the scene of Andrea Mazzola taking the plastic bag out of the location, was there anything that you collected between five o'clock and when you left with Andrea Mazzola that could have accounted for the heft in that bag, other than the envelope?
MR. FUNG: Possibly, but it is most likely that the envelope was in that bag.
MR. GOLDBERG: Okay.
MR. SCHECK: Objection, move to strike as speculation.
THE COURT: Overruled.
MR. GOLDBERG: Did you collect anything between five o'clock and the time that Miss Mazzola and yourself left with the plastic bag that was the same approximate size and dimension of the analyzed envelope, 163?
MR. FUNG: Was there anything--
MR. GOLDBERG: The one in front of you?
MR. FUNG: Was there anything else that we collected that was this size?
MR. GOLDBERG: Yes.
MR. FUNG: Is that what you are asking?
MR. GOLDBERG: Yes.
MR. FUNG: No.
MR. GOLDBERG: Did you have any other envelopes that were that size?
MR. FUNG: No.
MR. GOLDBERG: Okay. Let's continue.
(The videotape resumes playing.)
MR. GOLDBERG: Your Honor, perhaps I think we've covered the scenes that I want to cover at this time. Mr. Fairtlough, that is fine.
THE COURT: All right. Mr. Goldberg.
MR. GOLDBERG: So sir, based upon your independent recollection and also viewing the videotapes, is the first event that occurred with respect to the vial Detective Vannatter arriving with what appears to be the analyzed evidence envelope?
MR. FUNG: Yes.
MR. GOLDBERG: And did you then see a shot of yourself in the foyer area holding two items?
MR. FUNG: Yes.
MR. GOLDBERG: And those two items were again?
MR. FUNG: The two items were an envelope that is consistent with the gray envelope in People's--
MR. GOLDBERG: 163-H?
MR. FUNG: --163-H and a plastic bag.
MR. GOLDBERG: And that was in fact the envelope that you received from Detective Vannatter?
MR. FUNG: Yes.
MR. GOLDBERG: And the plastic bag was the one that eventually Miss Mazzola is carrying?
MR. FUNG: Yes.
MR. GOLDBERG: And then the third item in the sequence of events is Andrea Mazzola carrying the black plastic bag out of the location?
MR. FUNG: Yes.
MR. GOLDBERG: And you putting it into the crime scene truck?
MR. FUNG: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Thank you. I'm finished with that tape.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Sir, I was asking you about independent recollection of placing the item in the bag and you said that you don't have an independent recollection of that. What do you mean by that?
MR. FUNG: By "Independent recollection," I don't have a mental picture from memory of myself placing the envelope in the plastic bag.
MR. GOLDBERG: So when you are thinking about the events of the 13th and you are trying to conjure up an image, you think of an image of what was happening at and around the time that you received the envelope, do you see an image of yours doing that?
MR. FUNG: Not from my memory, no.
MR. GOLDBERG: Okay. But do you know that that is what you did?
MR. FUNG: Yes.
MR. GOLDBERG: And how do you know that?
MR. FUNG: From viewing the videotape and piecing together memory that I do remember that is what I have concluded that I did.
MR. GOLDBERG: Okay. Did you also look at the time--
MR. SCHECK: I move to strike that answer, your Honor. That is speculation. I think the tapes and what the witness says speak for itself.
THE COURT: Overruled.
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Now, sir, we were talking before we broke on Friday about what "Collection" means as a criminalist and you said that it meant something in addition to physically picking items up; is that correct?
MR. FUNG: Yes.
MR. GOLDBERG: And did that include the numbering and the measuring phase?
MR. FUNG: Yes.
MR. GOLDBERG: All right. And I asked you whether in your mind you participated or whether you did participate in the collection of all of the items on June the 13th, all the biological evidence. And what was your answer?
MR. FUNG: The answer was yes.
MR. GOLDBERG: Okay. Now, when you were working with Andrea Mazzola on the 13th, I think you testified that you were working as a team. What do you mean by that?
MR. FUNG: In working as a team two people are working towards one goal and we were working towards collecting and documenting the evidence that was at those scenes.
MR. GOLDBERG: All right. Now, when you testified at the Grand Jury did you have any opportunity to prepare by talking with Marcia Clark before you testified?
MR. FUNG: No.
MR. GOLDBERG: Have you ever testified at a Grand Jury before?
MR. FUNG: No.
MR. GOLDBERG: Did you have an opportunity to prepare on your own, by reviewing your own notes in order to refresh your recollection before you testified?
MR. FUNG: I looked at them briefly.
MR. GOLDBERG: Okay. Did you have any conversation with Miss Clark before you actually went into the Grand Jury room?
MR. FUNG: We had a brief conversation as to the basic--basic testimony I would be covering, the topics we would be covering, but it was nothing very detailed.
MR. GOLDBERG: Well, can you give us a better idea of what was said?
MR. FUNG: She said--she introduced herself and I introduced myself. She said something to the effect, "You are the criminalist who did the collection?" And I said "Yes," and there wasn't much more than that, if any.
MR. GOLDBERG: Okay. And you've testified in Court on numerous prior occasions?
MR. FUNG: Yes.
MR. GOLDBERG: Do you usually have an opportunity to sit down and go over your testimony in advance and know the kind of questions you are going to be asked and so on?
MR. FUNG: Usually.
MR. GOLDBERG: And to review your notes?
MR. FUNG: Yes.
MR. GOLDBERG: All right. Now, I want to ask you some questions about your testimony at the Grand Jury, sir.
(Brief pause.)
MR. GOLDBERG: And counsel, I'm going to be looking at page 390 of the Grand Jury transcript.
MR. SCHECK: Which line?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: I will read between 23 on page 389 and 90, page 390.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Sir, you have since had an opportunity to go over your Grand Jury transcript testimony?
MR. FUNG: Yes.
MR. GOLDBERG: And at the Grand Jury did you give the following answers to the following questions starting on page 389, line 23: "Question: With respect to the blood on the car shown in photograph a of People's 5, as well as b, and the blood behind the Ford Bronco shown with no. 4 in the photograph, c, and the blood shown in photograph f on this exhibit and in photograph--that same drop of blood shown in photograph d of People's 2, in fact all of the blood recovered as shown on the markers in People's 2 in g and f, as well as 5 in photograph g and h, did you recover all of those from the scene for further analysis?
"Answer: The ones labeled with the numbers? Yes, I did. "Question: How did you recover them? "Answer: I recovered them in the manner described before where I would wet a cloth swatch or several cloth swatches if needed, apply it to the red stain and then let the stain transfer onto the cloth swatch." Do you remember giving those answers to those questions?
MR. FUNG: Yes.
MR. GOLDBERG: And when the question was asked, "And how did you cover them," did you believe the questioner wanted to know how they were recovered and who did it?
MR. FUNG: I believed the questioner wanted to know how it was done.
MR. GOLDBERG: Were you trying to mislead anyone when you talked about in the first person, "I did it"?
MR. FUNG: No.
MR. GOLDBERG: Your Honor, I would next like to read a reference from the same transcript at page 399.
THE COURT: Starting at what line, counsel?
MR. GOLDBERG: Starting line 5 through line 12, and your Honor might want to take a look at that because that is going to bring to us another issue.
(Brief pause.)
MR. GOLDBERG: If the Court has the transcript.
(Brief pause.)
MR. SCHECK: Your Honor.
THE COURT: All right. Let's approach with the Court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. Grand Jury record is not part of the Court's record.
MR. GOLDBERG: I'm sorry, your Honor.
THE COURT: All right.
MR. GOLDBERG: I just meant--
THE COURT: What line?
MR. GOLDBERG: Line 5 through line 12.
MR. SCHECK: Mr. Goldberg, I--
MR. COCHRAN: We have a condensed version.
MR. SCHECK: I don't understand how this is rehabilitating him on the issue of what he did or didn't do to bring in all this information about presumptive testing at this point.
MR. GOLDBERG: "We collected a stain," your Honor. There is someone else involved that. Someone else is Andrea Mazzola. He has made this out that this bias trying to purposefully conceal the existence and here he is referring to "We." "We collected that stain in the master bedroom" and then he changed to "I," "I did a presumptive test," so it is clear, absolutely 100 percent clear, that there are two people there. And the question has not been asked who was this other person. This has to be brought in in light of the cross-examination that Mr. Scheck engaged in.
MR. SCHECK: No. I certainly didn't impeach him with respect to item no. 14. He agreed Andrea Mazzola picked that up.
MR. GOLDBERG: No, he impeached him. He said he was trying to conceal her existence. He was trying to make it sound like he did everything on every stain and here he is at--he discloses "We" and then he is not asked who are you talking about and there are two--
MR. SCHECK: There may be some way to redact that, if he just wants to introduce "We collected that stain in the master bedroom," and that is the whole point of this.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Yes.
THE COURT: The comment Mr. Scheck made?
MR. SCHECK: I mean I understand Mr. Goldberg's argument. He wants to indicate that at one point during the Grand Jury testimony on page 399 Mr. Fung used the word "We" with respect to collecting a stain in the master bedroom.
THE COURT: Bathroom.
MR. SCHECK: Bathroom. I think he can ask the question were you asked the question were you shown some photographs of the stain in the master bedroom.
THE COURT: I think you can ask him did you testify at the Grand Jury that we collected that stain in the master bathroom.
MR. SCHECK: Referring to no. 14.
THE COURT: Referring to no. 14.
MR. SCHECK: I have no objection to that, but I think that trying to read the rest of this is obvious.
MR. GOLDBERG: Your Honor, has the Court ruled or still not ruled?
THE COURT: No. We haven't argued the pheno matter yet. Remember, we delayed doing that, but I will--I agree that you can ask did you, in response to a question, testify that we collected the stain in the master bathroom.
MR. SCHECK: Referring to no. 14.
MR. COCHRAN: At some point--at some point or whatever. Are we going to take a break at all at this point?
THE COURT: I'm sorry. No.
MR. SCHECK: Can we just agree before we--that is what he is going to ask. Could we just agree to the question that you are going to ask?
MR. GOLDBERG: I'm going to read it except I'm not going to read the last sentence, "I did a presumptive test for blood in the sink drain and it came back noting the presence of blood in the sink drain," and I'm just going to delete that as if it didn't exist, but later on we may want to get that in.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: He is going to say--
MR. SCHECK: May I just suggest, as a matter of clarity, why don't you say were you asked a question at the Grand Jury, were you shown photographs in the Grand Jury of stain no. 14 and a card next to it? Yes. And when you were shown that stain did you say we collected that stain in the master bedroom?
THE COURT: Bathroom.
MR. SCHECK: Bathroom.
MR. GOLDBERG: Your Honor, you know, really I think that perhaps the phenolphtalein test, maybe it would make more sense to resolve it now because it is not going to be that much longer before we get into that.
THE COURT: Well, we will take that up at the noon hour.
MR. GOLDBERG: So is my proposed reading of this okay?
THE COURT: No, it is not okay. You can ask him were you asked a question regarding stain no. 14 and did you give this answer, "We selected that stain in the master bathroom," period. That is what you can ask.
(The following proceedings were held in open Court:)
THE COURT: Thank you, counsel. Proceed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Sir, at the Grand Jury hearing were you asked a question as to the collection of stain no. 14 in the master bedroom--master bathroom, rather, and did you say that "We collected that stain in the master bathroom"?
MR. FUNG: Yes.
MR. GOLDBERG: And when you say "We collected it," who was this other person that you were referring to?
MR. FUNG: I was referring to criminalist Mazzola.
MR. GOLDBERG: And did--was there a follow-up question of who--who is the other person?
MR. FUNG: No.
MR. GOLDBERG: Okay. And next I would like to look at the Grand Jury transcript, page 408 at lines 9 through 13, your Honor.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Sir, were you asked the following question and did you give the following answer: "Was the blood between the two victims analyzed, either the blood on the floor--on the ground between the two victims analyzed or collected for analysis? "Answer: We did collect or try to collect blood--that blood and it was analyzed, yes." Do you remember that?
MR. FUNG: Yes.
MR. GOLDBERG: And when you said "We," who were you referring to?
MR. FUNG: I was referring to criminalist Mazzola and myself.
MR. GOLDBERG: And was a follow-up question as to who is the other person asked?
MR. FUNG: No.
MR. GOLDBERG: Now, did it appear to you, based on the questions you were being asked at the Grand Jury, that the questioner was interested in who did what or what was done?
MR. SCHECK: Objection, objection.
THE COURT: Sustained.
MR. GOLDBERG: What did it appear to you that the questioner was interested in when you were being questioned about what was collected?
THE COURT: Sustained. Sustained. Calls for speculation, counsel.
MR. GOLDBERG: May we approach on that, your Honor?
THE COURT: No. Proceed.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Proceed.
MR. GOLDBERG: Were you ever trying to mislead anyone at the Grand Jury?
MR. FUNG: No.
MR. GOLDBERG: And when you went through the transcript, did you come up with an estimate as to approximately how many minutes you were questioned about the collection process at Rockingham in terms of what was collected and how it was collected?
MR. FUNG: Well, a rough estimation of--
MR. GOLDBERG: Of--
MR. FUNG: --between five to ten minutes.
MR. GOLDBERG: It wasn't that extensive?
MR. FUNG: No.
MR. GOLDBERG: And what about the collection process at Bundy, approximately?
MR. FUNG: Five to ten minutes again.
MR. GOLDBERG: And in your review of the transcript were you ever asked specifically who the--the question who did this or who did that in terms of collecting evidence at Bundy?
MR. FUNG: No, not specifically.
MR. GOLDBERG: Or Rockingham?
MR. FUNG: No.
MR. GOLDBERG: Now, I would like next to refer to the preliminary hearing transcript at page 40 at lines 5 through 10.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Were you asked the following questions and did you give the following answers: "Question: Did you prepare a report documenting what item numbers 1 through 8 are in this case? "Answer: Yes, I did. "Question: Did you collect them, sir? "Answer: I did, along with my assistant, criminalist Mazzola." Did you give those answers to that question?
MR. FUNG: Yes.
MR. GOLDBERG: Were you making any effort to conceal criminalist Mazzola's participation in the collection in this case?
MR. FUNG: No.
MR. GOLDBERG: Did you have any hesitation to say that you collected them along with criminalist Mazzola at the preliminary hearing?
MR. FUNG: No.
MR. GOLDBERG: And I would like next to look at pages 43 through 44, lines 27 on page 43, through line 3 on page 44.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: 27 on 43 through line 3 on page 44.
THE COURT: Proceed. Proceed.
MR. GOLDBERG: Okay. "Question: And were all of those items packaged by yourself bearing the DR number of this case? "Answer: Yes. I may have had some assistance from criminalist Mazzola with some of the items."
MR. GOLDBERG: Do you recall giving that answer to that question?
MR. FUNG: Yes.
MR. GOLDBERG: And by the way, when we are talking about DR number being assigned, that is what?
MR. FUNG: That is the divisional record number that is assigned to each case. Each case has its own DR number.
MR. GOLDBERG: And those were assigned in the field or in the laboratory?
MR. FUNG: The--the detective obtains those and he passes the DR number on to us.
MR. GOLDBERG: Now, when you were answering this question about having assistance from criminalist Mazzola in the packaging with the DR numbers, did you have any hesitation in disclosing that she assisted you in that process?
MR. FUNG: No.
MR. GOLDBERG: All right. I would next like to refer to the--what we have been terming the Griffin hearing which happened on August the 22nd of last year at page 52--excuse me--page 538.
MR. SCHECK: Your Honor, I would object to this. This is not--
THE COURT: All right. Let me see counsel at the sidebar with the transcript.
(The following proceedings were held at the bench:)
THE COURT: What is your objection, Mr. Scheck?
MR. SCHECK: This is improper rehabilitation because these are not prior consistent statements. The impeachment that I did with this witness had to do with his leaving out Miss Mazzola in his Grand Jury testimony and his preliminary hearing testimony. There was never any contention that he was able or trying to leave out Miss Mazzola in his Griffin hearing testimony and he wasn't impeached to this effect or under cross-examination, so what he is trying to give him here is a prior consistent statement. Our point was that he was leaving that stage of the proceedings plainly at the time of the Griffin hearing. He couldn't leave her out and he has conceded and discussed together who did what, so this is improper redirect.
MR. GOLDBERG: Well, we are only talking about one question now, and that question is there were--there was an item of blood that he did not personally supervise. "Do you know which ones those were? "Not specifically, no." Because he now realized that item 52 is the one that he didn't supervise, and counsel tried to impeach him by suggesting he said at the Griffin hearing that he supervised every single last one.
MR. SCHECK: Well, I mean that was--it is not an implication. That was his testimony.
THE COURT: Yeah, but we are talking about a subsequent statement, not a prior statement.
MR. GOLDBERG: No, no. It was at the same hearing. Counsel impeached him with a statement at the Griffin hearing to the effect that he made it--I think the phrase that counsel used took great pains to indicate that he had observed each and every blood stain being collected, that the witness has now testified that he--that he has since learned that he did not see item no. 52 being collected. At the Griffin hearing he said that there was some that he did not remember being collected.
MR. SCHECK: No, no, no. Then this is improper and that is, his testimony at the Griffin hearing was clear that he supervised her for 47 through 52. His testimony at the trial was that he didn't completely observe the collection of 52. This is not in any way a prior consistent statement.
MR. GOLDBERG: It is a consistent statement from the same hearing.
MR. SCHECK: No, it isn't. That doesn't refer to no. 52.
MR. GOLDBERG: But it refers to--it says that he did not observe her collect every single item in the trail and counsel made it sound--
MR. SCHECK: No, no, no, that doesn't say that. That doesn't say that. He specifically testified that he observed her collect every item on the trail and that was his recollection. There may have been other items that he didn't observe her collect. That was the testimony. This is improper.
MR. GOLDBERG: Well, anyway, this is already--this is the exact passage that he has already asked about and I want to ask him some questions about how he came to the conclusion that he didn't see 52. So I'm just asking the questions about something that has already been gone into,, this exact passage was already put in the record.
MR. SCHECK: The whole thing then? Which passage are you talking about?
THE COURT: All right.
MR. GOLDBERG: Between page 538--
MR. SCHECK: May I see this for a second?
MR. GOLDBERG: Lines 25, and 539, line 10.
THE COURT: Show it to counsel.
(Brief pause.)
THE COURT: This is a minor point.
MR. GOLDBERG: Your Honor, you have to understand the nature of the attack against this man. They are talking about being a co-conspirator who has lied about material facts. That is different--
MR. SCHECK: I don't understand this.
MR. GOLDBERG: That is different than the usual, and therefore, the scope of redirect is broader. I also wanted to bring up--that is why I was asking the issue about what he thought the questioner was asking, because his state of mind is relevant. The issue is--
THE COURT: No, we are not arguing that, counsel.
MR. GOLDBERG: Can I be heard at the noon recess, your Honor?
THE COURT: Yes.
MR. SCHECK: This testimony, your Honor, says, starting at 538, line 17, that he remembers that the person supervised her for each and every one of the blood stains that were leading along the so-called escape route.
THE COURT: All right. The objection is overruled.
MR. GOLDBERG: Thanks.
MR. SCHECK: Excuse me, your Honor. Which question can he read?
THE COURT: The one originally intended.
(The following proceedings were held in open Court:)
THE COURT: Thank you, counsel. Proceed.
MR. GOLDBERG: Thank you, your Honor.
MR. GOLDBERG: Sir, did you give the following responses to the following questions: "Question: And so she would be collecting some of those blood stains, I mean--withdraw that. "Question: As you sit here today do you have a vivid memory as to which of the 50 or so items she collected at Bundy she collected in your presence, as opposed to those she collected outside your presence? "Answer: I do remember that the blood stains leading from the--where the victims were along the escape route, as it has been referred to in the past, is--I was there with her, personally supervising her. "Question: For each and every one of those? "Answer: I believe so, yes. "Question: Were there other blood stains, however, that she selected at the scene that you personally did not supervise? "Answer: Yes. "And as you sit here today do you know which ones those were? "Not specifically, no." Do you remember those answers to those questions?
MR. FUNG: Yes.
MR. GOLDBERG: Okay. Now, were you indicating, when you said, "I believe so, yes," that you supervised her on the trail items, that you were positive?
MR. FUNG: When I said, "I believe so," that meant that I wasn't 100 percent sure.
MR. GOLDBERG: And you have since testified that you did not observe her on stain 52?
MR. FUNG: That's correct.
MR. GOLDBERG: And how did you come to--did you come to that conclusion after your conversation with Andrea Mazzola where you went through the checklist or before?
MR. FUNG: I came to that conclusion after I spoke with criminalist Mazzola.
MR. GOLDBERG: Were you trying to mislead anyone at the Griffin hearing about what you observed and what you didn't observe in terms of what Miss Mazzola did?
MR. FUNG: No.
MR. GOLDBERG: Now, in this case you will also out property reports documenting the evidence that was collected on June the 13th; is that correct?
MR. FUNG: Yes.
MR. GOLDBERG: Your Honor, at this time I would like to mark as People's next in order, I believe it is 189--
THE COURT: 187.
MR. GOLDBERG: 187. Okay. Thank you. Sorry.
(Peo's 187 for id = cc of property report)
MR. GOLDBERG: --a copy of a property report containing items 1 through 10.
THE COURT: All right. How many pages is this document?
MR. GOLDBERG: It is three pages.
THE COURT: All right. Have you shown that to Mr. Scheck?
MR. GOLDBERG: Excuse me. It actually contains 1 through 14 and then 17.
(Brief pause.)
THE COURT: All right. Proceed.
MR. GOLDBERG: And I have another report that I would like to mark as People's 188 and it contains items 35 through 37.
THE COURT: How many pages?
MR. GOLDBERG: It is also three pages.
THE COURT: All right. 188.
(Peo's 188 for id = cc of property report)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Excuse me. It is five pages.
THE COURT: Five pages. Proceed.
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Sir, were the property reports that you generated in this case created before June 16th?
MR. FUNG: Yes.
MR. GOLDBERG: And that was before your testimony at the Grand Jury?
MR. FUNG: Yes.
MR. GOLDBERG: I would like to direct your attention to the report that we've now marked as 187 for identification. Your Honor, I just put a "187" up on the top of the report and circled it.
THE COURT: All right.
MR. GOLDBERG: And specifically page 3 of that report.
(Brief pause.)
MR. GOLDBERG: Sir, on this report did you write that items 1 through 11 were collected by criminalist Mazzola and Fung on 6/14/94 at 360 north Rockingham?
MR. FUNG: Yes, I did.
MR. GOLDBERG: And did you subsequently write another document to change the date to 6/13?
MR. FUNG: Yes.
MR. GOLDBERG: All right. And when you wrote this document did you have any hesitation to list criminalist Mazzola as being one of the people that collected the items with you?
MR. FUNG: No.
MR. GOLDBERG: I would now like to direct your attention to the next exhibit that we have marked, People's 188, the fourth page.
(Brief pause.)
MR. GOLDBERG: And on this report, sir--this is another one of your property reports?
MR. FUNG: Yes, it is.
MR. GOLDBERG: And this was generated before the Grand Jury?
MR. FUNG: Before I testified--I testified before that, yes.
MR. GOLDBERG: And did that say that items 35 through 57 were collected by criminalist Mazzola and Fung on 6/13 at 875 south Bundy?
MR. FUNG: Yes.
MR. GOLDBERG: And did you have any hesitation whatsoever to list criminalist Mazzola as having participated in the collection of those items?
MR. FUNG: No, I did not.
MR. GOLDBERG: All right. Thank you.
MR. GOLDBERG: So before you testified at the Grand Jury, as far as you were concerned, was it a matter of public record in these property reports that criminalist Mazzola and yourself collected the items on June the 13th?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. GOLDBERG: Did you know that these reports were in existence at the time that you testified at the Grand Jury?
MR. FUNG: Yes, I did. Yes.
MR. GOLDBERG: Your Honor, I would now like to mark another exhibit, and it appears to be a vehicle search checklist dated 6/12 and it is l-21 through l-31, as People's--
THE COURT: 189.
MR. GOLDBERG: --189.
THE COURT: How many pages, Mr. Goldberg?
MR. GOLDBERG: Seven pages.
THE COURT: Thank you.
(Peo's 189 for id = Veh. Search checklist)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: I'm only going to ask him about one page of this report.
THE COURT: All right.
(Discussion held off the record between Defense counsel.)
THE COURT: Proceed.
MR. GOLDBERG: May I just approach the witness for a moment before I put it on the elmo?
THE COURT: You may.
MR. GOLDBERG: Sir, can you just briefly look at this exhibit and tell us what that is?
MR. FUNG: This is the vehicle search checklist that we filled out to--in conjunction with doing the Bronco search.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, sir, this says "6/12." What date was this filled out on?
MR. FUNG: This was filled out on 6/13.
MR. GOLDBERG: And who did that?
MR. FUNG: Criminalist Mazzola filled out this form.
MR. GOLDBERG: When--when on the 13th was that filled out?
MR. FUNG: This was filled out very shortly after we arrived at the Rockingham scene.
MR. GOLDBERG: And in the--I'm having trouble seeing it, but on the "OIC" box, maybe you can--oh, I see. Maybe we can zoom in on that. The OIC box it says "Mazzola," and it has the date "6/13" over to the right.
MR. FUNG: Yes, it does.
MR. GOLDBERG: And then under that it actually says, "Assistant's name, D. Fung"?
MR. FUNG: Yes.
MR. GOLDBERG: Now, how much after you arrived at Rockingham was this document actually filled out?
MR. FUNG: No more than five to ten minutes.
MR. GOLDBERG: Did you have any conversation with Miss Mazzola about who to put in the OIC section or who to put in the assistant's name section?
MR. FUNG: No, not on this form.
MR. GOLDBERG: All right. And when did you first become aware that she was the OIC as listed on this form and that you were the assistant?
MR. FUNG: (No audible response.)
MR. GOLDBERG: Listed as the assistant?
MR. FUNG: I--when I was reviewing the notes at some later time.
MR. GOLDBERG: Okay.
MR. FUNG: I looked at that and noticed it then.
MR. GOLDBERG: Did you ever make any effort to change that?
MR. FUNG: No.
MR. GOLDBERG: Did it bother you that Andrea Mazzola was listed in the OIC position?
MR. FUNG: No.
MR. GOLDBERG: Did it ever occur to you to ask Andrea Mazzola to write up a new form to switch the name to put yourself in the OIC position and switch her to assistant?
MR. FUNG: No.
MR. GOLDBERG: Okay. And did you know that this document was in existence when you testified at the Grand Jury?
MR. FUNG: Yes, I did.
MR. GOLDBERG: Now, sir, have you noticed in your experience as a criminalist when someone asks you the question "Did you collect" a particular item of evidence, in a case where you were working with a criminalist 1 who may have done the actual physical picking up, have you noticed any particular habit that you have?
MR. SCHECK: Objection. Leading, argumentative.
THE COURT: Hold on. Not yet.
MR. GOLDBERG: Do you have any habit with respect to how you answer that question?
THE COURT: Overruled. You can answer the question.
MR. FUNG: Yes. In reviewing some of my testimony, I tend to use the word "I" in that situation--an example--well, there is many examples that you have given today and it is like an engineer who says I built a bridge or a businessman who says I wrote a report when he may actually have many other people working under him helping him finish his job.
MR. GOLDBERG: Did you have the opportunity to review portions of your trial transcript in this case and see yourself following that practice?
MR. SCHECK: Objection.
THE COURT: What is the objection?
MR. SCHECK: The objection is--
THE COURT: Legal basis.
MR. SCHECK: The basis is I believe it is--
THE COURT: Legal ground; two words.
MR. SCHECK: Leading, compound and assumes facts not in evidence.
THE COURT: Sustained. It is leading.
MR. GOLDBERG: Did you have an opportunity to review portions of your trial transcript?
MR. FUNG: Yes.
MR. GOLDBERG: And were there instances in the trial transcript where you testified as if you had done the physical collection when you didn't?
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Objection.
MR. GOLDBERG: Did you find any instances of your answering questions in conformity with the habit that you just described to us?
MR. FUNG: Yes.
MR. GOLDBERG: All right. Your Honor, I would like to direct counsel's attention to page 21564 of the trial transcript.
THE COURT: Do you have that?
MR. SCHECK: Yes.
MR. SCHECK: What line?
THE COURT: What line, counsel?
MR. GOLDBERG: Excuse me one moment.
(Brief pause.)
MR. GOLDBERG: Excuse me. It was 21575 of the trial transcript.
MR. SCHECK: What line?
MR. GOLDBERG: I don't know. Some pages appear to be missing out of my trial transcript, your Honor. May I just have one moment?
THE COURT: Certainly.
MR. GOLDBERG: Your Honor, I will come back to this after lunch when I have an opportunity to find the missing pages.
THE COURT: Proceed.
MR. GOLDBERG: Sir, after you were cross-examined by Mr. Scheck about this issue of the Grand Jury transcript and, umm, the issue of whether or not you wanted to conceal the existence of Andrea Mazzola--do you remember that?
MR. FUNG: Yes.
MR. GOLDBERG: Were you trying to be careful to specify who physically collected what?
MR. FUNG: Yes.
MR. GOLDBERG: And during the cross-examination did you notice that you were still at time testifying in conformity with your habit of using the term "I" or making it sound--
MR. SCHECK: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: Did you notice, even after that, that you were testifying at times in conformity with your habit?
MR. FUNG: Yes.
MR. SCHECK: Objection, leading. Move to strike.
THE COURT: Stricken. The jury is to disregard.
MR. GOLDBERG: Your Honor, I would like to look at page 22026.
THE COURT: What line, counsel?
MR. GOLDBERG: It is lines 23 through 25.
MR. SCHECK: 23 through 25?
MR. GOLDBERG: 23 through 25.
THE COURT: Proceed.
MR. GOLDBERG: Do you recall giving the following answer to the following question: "Question: Mr. Fung, did you ever collect a pager in the caged-in area? "Answer: Yes." Do you remember that?
MR. FUNG: Yes.
MR. GOLDBERG: Okay. Were you trying to suggest that you personally picked up that item?
MR. FUNG: No.
MR. GOLDBERG: And had you earlier testified on direct that Andrea Mazzola had picked it up?
MR. FUNG: Yes.
MR. GOLDBERG: All right. I would like to next look at 21916.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: What line, counsel?
MR. GOLDBERG: It is lines 1 through lines 26.
MR. SCHECK: Just one second.
(Brief pause.)
MR. SCHECK: Line 1 through 27?
MR. GOLDBERG: Through 26. Line 1 through line 26, 21916.
THE COURT: Proceed.
MR. GOLDBERG: Thank you. "Question: Now, did you, in terms of how you and Miss Mazzola approached this, did you perform any what is known as phenolphthalein tests on those blood drops? "MR. SCHECK: Did you? "Answer: Yes. "And was that one of the first things you did? "Answer: It was one of the things that we did. "Question: All right. Then in terms of approaching these red stains, there is one that I think is item no. 1, the one on the door; is that correct? "Answer: Yes. "Question: And before you swatched that stain you did a presumptive test on it? "Answer: Yes. "Question: All right. And before you took a picture of that stain you did a presumptive test on it? "Answer: I'm not sure which order that occurred in."
MR. GOLDBERG: Do you recall that line of questioning and those answers?
MR. FUNG: Yes.
MR. GOLDBERG: And did you in fact perform a presumptive test on it physically?
MR. FUNG: I don't recall if I personally performed it or if criminalist Mazzola performed it.
MR. GOLDBERG: Did you physically swatch it?
MR. FUNG: I don't recall if I did or not.
MR. GOLDBERG: Okay. And did you personally take a photograph or did someone else do that?
MR. FUNG: Somebody else took the photograph.
MR. GOLDBERG: When you answered the question about the picture, were you trying to lead Mr. Scheck to believe that you personally took the photograph?
MR. FUNG: No.
MR. GOLDBERG: And why was it that you testified in this fashion?
MR. FUNG: I was--I was trying to answer his question as to what was done; not who did what.
MR. GOLDBERG: Okay. And next I would like to refer to one last portion of the transcript at 22331, lines 15 through 25.
(Brief pause.)
MR. GOLDBERG: While they are looking for it--
MR. SCHECK: What page.
MR. GOLDBERG: 22331, lines 15 through 25.
(Brief pause.)
MR. SCHECK: Your Honor, if he is going to read that, I think he should read the two or three questions above it.
THE COURT: Mr. Goldberg. Agreed?
MR. GOLDBERG: Yeah. I don't see that the other one pertains to what I'm about to read.
THE COURT: Proceed.
MR. GOLDBERG: Okay.
MR. GOLDBERG: Sir, did you give the following answers to the following questions? "On June 13th you collected 112 which is 47, right? "Answer:"--
MR. SCHECK: Your Honor, I would object and ask you to take a look at the previous questions. I thought he was going to do it.
THE COURT: I thought you agreed to do that.
MR. GOLDBERG: Oh, I didn't know that the Court want--okay. I will read it. On lines 1 through lines 26 did you give the following answers to the following questions? Well, it starts with an answer, but please, Mr. Scheck will read that. "Answer: Generally that we do our crime scene or collection in order, but not a steadfast rule, though, but generally we do. "Question: Well, you certainly would want to keep the photo I.d. Numbers in order here because that's what you are using to keep track of the samples? "Answer: In order--in what regard?
"Question: In order of collection? "Answer: What kept the samples in order was that we collected each sample. We collect them one at a time and label the photo I.d. Number into the coin envelope and place the sample that we have just collected that has been labeled in that envelope. That is what keeps track of the sample. "Question: On June the 13th you collected 112, which is 47, right? "Answer: Yes. "Then you did 113, which is 48? "Answer: Yes. "Question: Then did you 114, photo no. 114, which is sample 49? "Answer: Yes. "Then you got sample 50, just near the back rear gate? "Answer: Yes."
MR. GOLDBERG: Do you remember those questions--giving those answers to those questions?
MR. FUNG: Yes.
MR. GOLDBERG: And sir, were you trying to mislead Mr. Scheck into believing that you had physically collected those items?
MR. FUNG: No.
MR. GOLDBERG: Had you already testified that in fact Andrea Mazzola did the physical swatching on most of those items?
MR. FUNG: Yes.
MR. GOLDBERG: Now, sir, how difficult is collecting a stain?
MR. FUNG: Collecting a stain is not very difficult. The actual swatching of the stain is not very difficult at all.
MR. GOLDBERG: All right. And is this something that in your experience detectives sometimes do?
MR. FUNG: Yes.
MR. GOLDBERG: Is this something that a lay person could be trained to do?
MR. FUNG: In a matter of minutes.
MR. GOLDBERG: Have you seen crime scene technicians who are not criminalists?
MR. FUNG: Yes.
MR. GOLDBERG: Now, when you testified at the Grand Jury about you swatching the stains, was that consistent with this habit that you've described to us?
MR. SCHECK: Objection. I think this is asked and answered, your Honor.
THE COURT: Sustained.
MR. GOLDBERG: All right.
MR. GOLDBERG: Why did you testify that way, sir?
MR. FUNG: I was answering the questions as to what was happening, not who--I didn't think the topic was who did what.
MR. GOLDBERG: Okay. Now, I would like to ask you a couple of questions on the subject of training and your training in the area of collecting a blood stain. Were you trained on how to collect a blood stain for the purposes of conventional serology, as opposed to DNA analysis?
MR. FUNG: At the time I was trained it was for conventional serology--serological blood and biological.
MR. GOLDBERG: Was your first actual training in collecting a blood sample at the lab at LAPD or was it in school or somewhere else?
MR. FUNG: The first training occurred in school, in my course work.
MR. GOLDBERG: Okay. Did they actually have you physically collecting stains at mock crime scenes or how did they do it?
MR. FUNG: I don't recall at this time whether we actually had to collect stains or not, but it was covered in the course work.
MR. GOLDBERG: Did you also have some more training on how to collect stains once you joined the lab?
MR. FUNG: Yes.
MR. GOLDBERG: Now, after the advent of DNA--the use of DNA technology in criminal cases, did the physical mechanics of how you collect a stain change?
MR. FUNG: No.
MR. GOLDBERG: All right. And when you said you received some additional training after the advent of DNA, what was the nature of this additional training?
MR. FUNG: The nature was describing to us how large a sample was needed to perform DNA testing and that was back in the late eighties--around `88, `89.
MR. GOLDBERG: So the training went mostly to sample size?
MR. FUNG: Yes.
MR. GOLDBERG: Now, when you saw Andrea Mazzola collecting stains at the crime scene at Rockingham and Bundy, can you describe the manner in which she would collect them in terms of her technique?
MR. FUNG: Criminalist Mazzola was very deliberate in her collection. She was single-minded in her tasks and she was--
MR. SCHECK: Your Honor, I would object to this as being conclusionary. If he wants to ask him about specific stains that he observed--
THE COURT: All right. Ask another question.
MR. GOLDBERG: Well, did she appear to be concentrated on her task when she collected all of the stains at Bundy?
MR. SCHECK: That is--
THE COURT: Sustained. It is leading.
MR. GOLDBERG: How did she appear when she was collecting the stains at Bundy in terms of the way that she was approaching her task?
MR. SCHECK: Calling for the operations of someone else's mind.
THE COURT: He can describe her conduct as he observed it.
MR. SCHECK: Yes.
MR. FUNG: She was very methodical.
MR. GOLDBERG: And did she appear to be using or was she using the technique that is used in the Los Angeles Police Department for the purposes of collecting biological stains?
MR. FUNG: Yes.
MR. GOLDBERG: And doing it properly?
MR. FUNG: Yes.
MR. GOLDBERG: Now, going back to the Bundy location, you were asked about a videotape that depicted an item that was being passed between yourself and criminalist Mazzola?
MR. FUNG: Yes.
MR. GOLDBERG: Have you had an opportunity to look at that videotape now several times?
MR. FUNG: Yes.
MR. GOLDBERG: Perhaps we can see, it is Defendant exhibit 1082, the clip of the tape.
(Brief pause.)
(At 10:50, Defendant's exhibit 1082, a videotape, was played.)
MR. GOLDBERG: Sir, if you look closely at that videotape, did you appear to be holding a pen in one hand?
MR. FUNG: Yes.
THE COURT: All right. I was about to try to get the counter number, since that is part of our record. All right. We are looking at the segment at 13:34, approximately. Proceed.
MR. GOLDBERG: Sir, is that item, the eyeglass envelope, as was suggested by the Defense?
MR. FUNG: In criminalist Mazzola's hand right here, (Indicating)?
MR. GOLDBERG: Yes.
MR. FUNG: No, it is not.
MR. GOLDBERG: When I say the eyeglass envelope, I mean the eyeglass envelope without any packaging on it?
MR. FUNG: It is--
MR. GOLDBERG: Is that what you meant?
MR. FUNG: It is not the envelope itself, no.
MR. GOLDBERG: Does the eyeglass envelope--if I may approach the witness, it is People's 32 for identification--have some blood stains on it?
MR. FUNG: Yes, it does.
MR. GOLDBERG: And do you see any blood stains on the item that is depicted in the Defense exhibit 1082?
MR. FUNG: I can't make any out.
MR. GOLDBERG: All right. When you recovered the eyeglass envelope, was it relatively crisp, as the item in 1082, or did it look somewhat as it does now?
MR. SCHECK: Objection, move to strike, the description of "Crisp."
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: What did it look like when it was recovered from the crime scene?
MR. FUNG: The envelope appeared pretty much the way it appears as it does now.
MR. GOLDBERG: Okay. And it already had blood on it at the time that it was collected?
MR. FUNG: Yes.
MR. GOLDBERG: Now, sir, in this particular photograph are you wearing gloves?
MR. FUNG: No, I'm not.
MR. GOLDBERG: Do you have any practice that you follow in terms of when you wear gloves and when you don't wear gloves at a crime scene?
MR. FUNG: I personally wear gloves only when necessary and that is when I am about to touch an item of evidence or I'm going into a very, very bloody scene, portion of the scene.
MR. GOLDBERG: Why don't you wear gloves a hundred percent of the time when you are at the crime scene?
MR. FUNG: For me, when I am not wearing gloves, it makes me that much more conscious not to touch things for prints and I tend to be very careful. When I'm wearing gloves or at least when I'm in my thought process, when I'm wearing gloves, I would be more likely to touch something, because I would think that the gloves would protect the item from prints.
MR. GOLDBERG: Now, in arriving at that conclusion as to when gloves should and should not been worn at a crime scene, as a criminalist, did you consider the opinion of Barry Fisher on that issue?
MR. FUNG: Yes.
MR. GOLDBERG: And that was the same text that was cited from earlier during cross-examination?
MR. FUNG: Yes.
MR. GOLDBERG: I would like to cite from page 21 of Mr. Fisher's text at--it is the third edition. Maybe I can approach the witness.
THE COURT: Do you want to show that to Mr. Scheck, please.
MR. GOLDBERG: I think he has that with him.
MR. SCHECK: No, the fifth edition, but I think I do remember that.
MR. GOLDBERG: There is a similar quote in the fifth edition, too.
(Brief pause.)
MR. GOLDBERG: In fact, maybe I can lend counsel my third edition.
(Brief pause.)
MR. GOLDBERG: Sir, you have already looked at Mr. Fisher's quotation as to the wearing of gloves; is that correct, before today?
MR. FUNG: Yes.
MR. GOLDBERG: Okay. And does Mr. Fisher say: "The wearing of gloves should not be permitted on the crime scene. There is always a risk that the wearer will become careless and touch objects that bear the Criminalist's fingerprints, thereby destroying or wiping them out"? Was that his view?
MR. FUNG: That is--yes.
MR. GOLDBERG: And is that your reason for not wearing them a hundred percent of the time?
MR. FUNG: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Your Honor, I'm--I will mark the page as a People's exhibit, if I might.
THE COURT: All right. People's next in order will be Defendant's 190--excuse me--People's 190.
(Peo's 190 for id = 1-Page document)
MR. GOLDBERG: And that is page 21.
THE COURT: Third edition? Third edition?
MR. GOLDBERG: Yes, your Honor.
MR. GOLDBERG: Now, sir, is blood at a crime scene considered to be a contaminant with respect to the health of the criminalist?
MR. FUNG: With respect to the health of the criminalist, yes.
MR. GOLDBERG: Why is that?
MR. FUNG: The--the blood could have infectious diseases in it and it could be transmitted to the criminalist.
MR. GOLDBERG: Would you touch an item that had visible blood on it, sir, with your bare hands at a crime scene?
MR. FUNG: I would try very hard not to.
MR. GOLDBERG: And would criminalist Mazzola have handed you an item that had blood on it?
MR. FUNG: No.
MR. SCHECK: Objection as speculation.
THE COURT: Sustained. The answer is stricken. The jury is to disregard. Rephrase the question.
MR. GOLDBERG: Now, sir, under the practices of the crime lab and using the standard procedures that you use at a scene, would a criminalist at the Los Angeles Police Department hand to another criminalist an item with someone's blood on it?
MR. SCHECK: Same objection, your Honor.
THE COURT: Overruled.
MR. FUNG: No.
MR. GOLDBERG: Now, sir, directing your attention back to the exhibit, the eyeglasses in front of you, what is the brown paper bag that is contained in that exhibit?
MR. FUNG: The brown paper bag is what the white envelope was packaged into.
MR. GOLDBERG: In looking at the brown paper bag were you able to see what type of a bag that was?
MR. FUNG: It was a number--no. 4 size bag.
MR. GOLDBERG: And the Los Angeles Police Department has various assortments of bags?
MR. FUNG: Yes.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Your Honor, I would like to mark as People's next exhibit what appears to be a--it is a Townsend no. 4 brown paper bag.
THE COURT: Yes.
(Peo's 191 for id = paper bag)
MR. SCHECK: Could I--
THE COURT: You may.
MR. GOLDBERG: Sir, directing your attention to what we have just marked, I think it is 192, your Honor--
THE COURT: 191.
MR. GOLDBERG: 191.
THE COURT: Townsend no. 4, bag.
MR. GOLDBERG: I will write a "191" on the rear of the bag.
MR. GOLDBERG: 191 for identification, what is that?
MR. FUNG: This is a brown paper bag size no. 4.
MR. GOLDBERG: And is that the same type of bag into which the eyeglasses were placed?
MR. FUNG: Yes.
MR. GOLDBERG: Okay. Is that consistent--if we can see Defense 1082 again.
MR. SCHECK: Your Honor, it seems to me if it is being offered as a--I'm objecting on the grounds that I take it this is being offered as--
THE COURT: Foundational objection?
MR. SCHECK: Yes.
THE COURT: All right.
MR. SCHECK: Exemplary evidence, and I think that the actual exhibit is there.
THE COURT: May I see it, please? Thank you.
(Brief pause.)
THE COURT: All right. The objection is overruled.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Your Honor, if I could just have a couple more questions before the noon recess, it won't take that long.
THE COURT: Two.
MR. GOLDBERG: Okay.
MR. GOLDBERG: Sir, is the item that is depicted in Defense 1082 consistent with the item that we have just marked, the paper bag, the Townsend no. 4?
MR. FUNG: Yes, it is.
MR. GOLDBERG: Okay. Thank you. I think we can wrap it up now, your Honor.
THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you. Do not discuss the case among yourselves, don't form any opinions about the case, do not conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock. All right. Let me see counsel at the sidebar with the Court reporter.
(The following proceedings were held at the bench:)
THE COURT: We are over at the sidebar. You wanted to bring up the phenolphthalein matter. We are over at the sidebar.
MR. SCHECK: Excuse me for one second.
MR. DARDEN: I had something on the record while we are here and it relates to the prior juror so you may want to seal it, but in the D.A.'s office, and apparently at DPSS, there was an open case up until last year relative to Jeanette Harris.
THE COURT: Let's not take that up at this point.
MR. SCHECK: Your Honor, if you are going to discuss that issue, can I ask that Mr. Neufeld and Mr. Blasier, who participated in writing the papers we submitted to the Court, come to the sidebar.
THE COURT: Well, somebody has got to step back. We are overcrowded here.
MR. COCHRAN: I will step back. Argue something.
THE COURT: There is pheno.
MR. COCHRAN: I will step back. That is okay.
THE COURT: Yes. All right. Mr. Goldberg.
MR. GOLDBERG: Your Honor, the People had three reasons for wanting the phenolphthalein test in, as we previously argued. No. 1 was that the door has been opened by the Defense by putting it in. They have put in some tests. They did not need to. It was not necessary to the point being demonstrated to put the results in of a positive test on the Bronco door. They did it because it received interest. There was no confirmatory test on that item at all, it wasn't collected. And the Prosecution now has the right to put in other phenolphthalein tests. They did not ask for any limiting instruction at the time.
MR. SCHECK: Excuse me, your Honor. Did you want the jury here now?
THE COURT: No.
MR. SCHECK: They hesitated.
THE COURT: They are not hesitating; they are waiting to clear the hallway.
MR. SCHECK: Okay.
MR. GOLDBERG: The second reason that we wanted the phenolphtalein test in, your Honor, is because a tremendous amount of emphasis was placed by counsel on the fact that the report of the pheno positive result on the Bronco was not generated until a month and a half or so after, and he suggested that this indicated that Mr. Fung never in fact performed the phenolphthalein test. We can also show that there were phenolphtalein tests performed at the scene at Rockingham on item no. 11 that both Mr. Fung and Andrea Mazzola participated in where no report was written at all. We can show that no analyzed evidence report was written on the sink, the shower drains. We can show that there were phenolphthalein tests that came back negative, so I guess this wouldn't come within the scope of the Court's ruling on the Bentley, which Mr. Fung--where Mr. Fung did not generate an analyzed evidence report until later, but that in and of itself is not sufficient for me to demonstrate the purpose that I seek to elicit because I need to be able to show that even in the instance of positive phenolphthalein tests, he does not necessarily generate a report immediately or at all.
So it does rehabilitate him on a very significant point of counsel's cross-examination and I think perhaps one of the most important reasons is that counsel has elicited extensive testimony as to the absence of blood inside the Rockingham location, particularly in the shower trap, when we know that--excuse me--in the sink trap, when we know that in the sink drain there was a positive phenolphthalein test. And as I recall the scope of the--the Court's ruling at the time that we first breached this, was that the Court would not allow the introduction of phenolphthalein results or other evidence in a way that was misleading and what has been done is they have introduced evidence that clearly allows them to argue and clearly creates the inference that there was no blood in the sink trap when we know that there was in fact a positive phenolphthalein test in the sink drain itself, and that seems to run entirely afoul of the Court's ruling. I could see if they wanted to avoid the issue of phenolphthalein altogether, well, we won't discuss any phenolphthalein tests in the bathroom and we won't make big deal about it, we will just leave well an enough alone. And now to put in that evidence and to affirmatively allow the jury to hear that there is a negative in a location that is functionally equivalent of where we know there is a positive, is now turning 352 from a shield into a sword that allows them to argue that there wasn't any there, instead of just having a neutral record. It doesn't speak to the issue one way or the other.
THE COURT: Mr. Scheck.
MR. SCHECK: I defer to Mr. Blasier.
MR. BLASIER: As to the last issue, the sink trap and the drain, we went over this before. You explained what the parameters were, what would open it up, what wouldn't. We asked you about the question on the trap before it was asked. That was all done with your approval. I don't think that is a valid argument at all as to opening this whole area up. Saying that this opens the door doesn't--that is not the only issue. It is the gotcha philosophy, that we said something so therefore they can bring in all sorts of things that you have already ruled are inadmissible. That is not what the legal standard is. The legal standard is that they have to show substantial prejudice to justify going into other areas. If the Court is entertaining the notion of now going into positive pheno testing, we want a Kelly-Frye hearing. We want to be able to litigate that and we want to be able to litigate what the false positives are. We want to litigate all issues surrounding that. It is more than just all of a sudden they can ask the positive tests and go into that.
THE COURT: Well, now that you have gone into phenolphthalein test on the Bronco, don't you think the Prosecution is entitled to go into phenolphthalein testing on the Bronco?
MR. BLASIER: I think that they can go into that one particular test that we brought up and we can probably even ask him isn't it your habit that sometimes you don't write a report, I think that is okay, too, but that is different from saying we are now going to look at other blood stains in other areas that have other factors.
THE COURT: Haven't you opened up at least the issue on the phenolphthalein test as to the Bronco?
MR. BLASIER: I think the one test they can go into, the reason why he didn't write a report.
THE COURT: Are there any other phenolphthalein tests on the Bronco that there is no confirmatory test for?
MR. GOLDBERG: Yes.
THE COURT: Which one?
MR. GOLDBERG: I think there are two brake pedals and the gas pedal.
THE COURT: With no confirmatory test?
MR. GOLDBERG: I don't think he ever collected anything from there. I think he just did the phenolphthalein and that also supports our view that he doesn't necessarily collect every time he gets phenolphtalein.
THE COURT: Did he write a report on this?
MR. GOLDBERG: It is in the vehicle identification--I think it is in the search notes, but he did not write an analyzed evidence report.
THE COURT: All right.
MR. GOLDBERG: And I think he also got a positive phenolphthalein test on the steering wheel at the seven o'clock position, but he may have collected a stain from that general vicinity.
MR. SCHECK: I'm sure he did. That was testified to.
THE COURT: All right.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: I'm going to allow the People to go into phenolphthalein testing on the Bronco on the reports that were written, but that is the extent of it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. NEUFELD: I'm sorry, your Honor?
THE COURT: That is the extent of it. Also, the Defense may not argue the absence of any testing on the sink drain, argue during argument. Thank you, counsel.
MR. GOLDBERG: Your Honor, can we get a limited instruction that it is not coming in for the truth of the test, allow evidence that he did get a positive phenolphtalein test on certain items and did not write a report for the purposes of buttressing what we feel is a very important issue of credibility?
THE COURT: You want a limiting instruction? All right. Draft one. I will think about it.
MR. SCHECK: Your Honor, before we go, Mr. Goldberg, is there any other videotape or photographs that you haven't shown us?
THE COURT: This--it would help us a lot if you guys would show exhibits to each other rather than waste probably over an hour of the Court's time today.
MR. GOLDBERG: Your Honor, for the record, we gave them a beta copy of the tape.
THE COURT: I understand that, counsel. I'm not arguing that issue, but all these other exhibits.
MR. GOLDBERG: What other exhibits?
MR. SCHECK: If he has any more tapes.
THE COURT: Anything else that you are going to show. All right. We are in recess.
(At 12:10 P.M. The noon recess was taken until 1:30 P.M. of the same day.)
Los Angeles, California; Monday, April 17, 1995 1:03 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: Back on the record. Counsel, are we ready to proceed? All right. Let's have the jury, please.
(The following proceedings were held in open Court, in the presence of the jury:)
THE COURT: Mr. Fung, why don't you come forward and be seated.
Dennis Fung, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we've now been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Fung is again on the witness stand undergoing redirect examination by Mr. Goldberg. Good afternoon again, Mr. Fung.
MR. FUNG: Good afternoon.
THE COURT: You are reminded, sir, you are still under oath. And, Mr. Goldberg, you may continue with your redirect examination.
MR. GOLDBERG: Good afternoon, Mr. Fung.
MR. FUNG: Good afternoon.
MR. GOLDBERG: Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
REDIRECT EXAMINATION (RESUMED) BY MR. GOLDBERG
MR. GOLDBERG: Mr. Fung, when we left off, we were talking about Defense tape 1082 that shows Andrea Mazzola passing an item to you. As you sit here now, do you have an independent recollection of that incident?
MR. FUNG: No.
MR. GOLDBERG: All right. And when you looked at the tape 1082, does it appear to you that the item is a bag that contains something or does not contain something?
MR. FUNG: The object does not appear to have any bulk to it. It appears to be a flat object.
MR. GOLDBERG: But are you certain based upon your practice at a crime scene that you would not have taken the envelope--
MR. SCHECK: Objection.
THE COURT: Let him finish the question.
MR. GOLDBERG: --had it not been in a package, had it simply been in the condition that you saw it in Court with the bloodstains with your bare hands?
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Sir, would you have done that? Would you have taken that eyeglass envelope with your bare hands?
MR. SCHECK: Objection. Calls for speculation.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Using your practice, your customary practice at crime scenes, would you have grabbed that item, the eyeglass envelope, with your bare hands?
MR. FUNG: No.
MR. GOLDBERG: And are you certain of that?
MR. FUNG: Absolutely.
MR. GOLDBERG: Now, at one point, you testified that you believed that the Coroners had left the location at the time that was depicted in that scene on that Defense tape. Do you recall that?
MR. FUNG: Yes.
MR. GOLDBERG: What made you think that the Coroners had left?
MR. FUNG: In my experience, Coroner's personnel leave very soon after moving the bodies and placing the--placing them in their vans, and I do not recall having seen any Coroner's personnel after I had seen them put the bodies in the vans that day. I just didn't recall seeing them.
MR. GOLDBERG: Had you waited to commence your collection process until after the bodies had been removed from the location?
MR. FUNG: Yes.
MR. GOLDBERG: And by that, I mean put in the van?
MR. FUNG: Yes.
MR. GOLDBERG: All right. And based upon your experience in processing crime scenes, can you think of any reason why the Coroner would remain--the Coroner's representatives would remain--
MR. SCHECK: Objection.
THE COURT: Sustained. Calls for speculation.
MR. GOLDBERG: Well, it also goes to the state of mind, your Honor.
THE COURT: Calls for speculation.
MR. GOLDBERG: At the crime scenes that you've been in the past, are there reasons--are there things that the Coroners have to do at the crime scene after they take the bodies and put them in the Coroner's vehicle?
MR. FUNG: Sometimes they have to get information from the detective, but I haven't seen that happen very often.
MR. GOLDBERG: And so in your--you've processed about 500 crime scenes you said?
MR. FUNG: Yes.
MR. GOLDBERG: And in your experience, does the Coroner almost always leave as soon as the bodies are in the vehicle?
MR. FUNG: Very soon after, yes.
MR. GOLDBERG: Now, were you paying attention when you were involved in the collection process? And by that, I'm including numbering and measuring the various items. Were you paying attention to activities that other people were engaged in around you?
MR. FUNG: No. I was concerned with doing my job.
MR. GOLDBERG: When you were involved in the collection process, were you trying to keep track of where the Coroner's representatives were or if they were even there?
MR. FUNG: No.
MR. GOLDBERG: To this day, do you have any independent recollection of them being there?
MR. FUNG: No independent recollection, no.
MR. GOLDBERG: And do you have any reason to believe that they were there other than the one clip of videotape that you saw with what appears to be the pant leg of one of the Coroner's representatives there?
MR. FUNG: No. Only the videotape shows that they're there.
MR. GOLDBERG: Okay. Now, during the early portion of the collection process, did you say that you brought the glove from--that had been collected at the Rockingham location in its bag into the caged-off area?
MR. FUNG: Yes.
MR. GOLDBERG: And for what purpose did you do that?
MR. FUNG: Detective Lange had requested to see the Rockingham glove.
MR. GOLDBERG: Do you recall from your own independent recollection whether or not you opened the bag for sure or not?
MR. FUNG: I don't recall if I opened the bag or not.
MR. GOLDBERG: Have you ever had any conversation with Detective Lange about that incident to your recollection? I mean after it happened.
MR. FUNG: Yes, we have talked about it, but I don't recall exactly what we discussed.
MR. GOLDBERG: Do you know or happen to remember whether Detective Lange said that the bag was closed at the time?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. GOLDBERG: Limited for his state of mind.
THE COURT: Sustained.
MR. GOLDBERG: Now, if we were to assume hypothetically that you brought the bag into the caged-off area and opened it, what kind of danger if any would be posed in terms of contamination of the evidence?
MR. FUNG: Just by merely opening the bag?
MR. GOLDBERG: Yes.
MR. FUNG: Something from me like my hair or something could fall into the bag.
MR. GOLDBERG: What about cross-contamination with the crime scene? I'm talking about that as a danger.
MR. FUNG: As long as I left the glove in the bag and was very careful opening the bag, I wouldn't see any real possibility of any cross-contamination.
MR. GOLDBERG: At the time that you brought that glove to the location that was--where we've described as a caged-off area, did you believe that there was some legitimate investigatory reason for doing so?
MR. FUNG: Yes.
MR. GOLDBERG: Did Detective Lange tell you what it was?
MR. SCHECK: Objection. Calls for hearsay.
THE COURT: Well, he can say yes or no without saying what was said.
MR. SCHECK: Yes.
MR. FUNG: He did give some indication as to why he wanted it there, yes.
MR. GOLDBERG: Well, that was my next question. And it's not limit--it's not being introduced for the truth of the matter asserted, but the effect on this witness' state of mind.
MR. SCHECK: Your Honor, I actually tried to elicit this.
MR. GOLDBERG: What?
MR. SCHECK: I tried to elicit this once and he objected.
THE COURT: Sustained.
MR. GOLDBERG: Okay. But without telling us what he said, he did give you an explanation?
MR. FUNG: A limited one, yes.
MR. GOLDBERG: All right.
THE COURT: But I think we've been over this already.
MR. GOLDBERG: Well, not on redirect.
THE COURT: Well, the jury I think is clear already as to why that was done.
MR. GOLDBERG: Okay. Now, at any time that you were at the location, did you ever see anyone shaking that blanket around, the one that was in contact with Nicole at one point?
MR. FUNG: No.
MR. GOLDBERG: And was there a lot of wind at the location when you were doing your evidence collection?
MR. FUNG: It wasn't--there was some wind, but it wasn't a windy day.
MR. GOLDBERG: I mean, was it windy enough at the time that you had that bag that it was picking things up and hairs and other items were flying through the air?
MR. FUNG: No.
MR. GOLDBERG: All right. When you first saw the Rockingham glove at the Rockingham location, did you notice any hair on it at that time?
MR. FUNG: The--
MR. GOLDBERG: At Rockingham.
MR. FUNG: The Rockingham glove?
MR. GOLDBERG: Yes.
MR. FUNG: I believe I did see some forms of either fibers or hair at that time.
MR. GOLDBERG: All right. And did you do anything to remove it at that time?
MR. FUNG: No.
MR. GOLDBERG: Now, you were also asked some questions regarding a videotape showing Miss Mazzola collecting some items at the crime scene. Do you recall that, the glove and the cap--the glove and the cap?
MR. FUNG: Yes.
MR. GOLDBERG: Perhaps we could take a look at that. It's 1083.
(Brief pause.)
(At 1:15 P.M., a videotape was played.)
MR. GOLDBERG: Can we see the first portion of that? Maybe we can stop for a second. Can we just back up for just a few frames? Yeah, there.
MR. GOLDBERG: Now, Mr. Fung, what is Miss Mazzola doing in this frame?
MR. FUNG: Miss Mazzola is placing the knit cap in a paper bag.
MR. GOLDBERG: And does it--
THE COURT: Excuse me. It's 13:15:41:12.
MR. GOLDBERG: Yeah. Does it appear to you that she is holding it from a corner of the cap without getting her--much of her hand on the item?
MR. FUNG: She's holding it at the tip, yes.
MR. GOLDBERG: And why is that done?
MR. FUNG: She's holding it so that very little--she comes into very--a very small area of contact.
MR. GOLDBERG: And then she simply places it in the bag?
MR. FUNG: Yes.
MR. GOLDBERG: And is it generally necessary to go through four years of forensic science training to learn this technique?
MR. FUNG: No.
MR. GOLDBERG: All right. Let's continue with the tape. Maybe we can just back up for a second just to get the point just before she dropped it in the bag. And similarly, how is Miss Mazzola handling the glove in this particular frame?
MR. FUNG: She--
MR. GOLDBERG: 13:52:23, and I can't read the last two. Is it 25?
MR. FUNG: She's holding a very small portion of the glove and placing it into the paper bag.
MR. GOLDBERG: And that's done for the same reason?
MR. FUNG: Yes.
MR. GOLDBERG: And is it again necessary to have four years of forensic science training to figure that--this technique out?
MR. FUNG: No.
MR. GOLDBERG: All right. Now, when she was lifting up this item, based upon your recollections of the crime scene itself, which area is she removing the glove from?
MR. FUNG: Based on my recollection, she's removing it from the dirt area.
MR. GOLDBERG: And is that where the glove was when you first saw it?
MR. FUNG: Yes.
MR. GOLDBERG: All right. We can continue with this and just finish it. That's fine. Thank you.
(At 1:19 P.M., the playing of the videotape concluded.)
MR. GOLDBERG: Now, sir, did you have an opportunity to take a careful look at the Defense video that depicts what appears to be a dark spot in the area of the white blanket that was on the ground?
MR. SCHECK: Objection to the characterization.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: That appears to be some sort of a dark area on the--
MR. SCHECK: Still objection. Characterization.
THE COURT: Overruled.
MR. FUNG: Yes.
MR. GOLDBERG: All right. And did you also have the opportunity to view a tape that was created by the People showing that same footage and intersplicing still photography?
MR. FUNG: Yes.
MR. GOLDBERG: Your Honor, at this--I don't know if we've already marked that. We--as a Court exhibit.
THE COURT: I don't believe so.
MR. GOLDBERG: I would like to mark that exhibit as our next in order.
THE CLERK: 192.
THE COURT: 192.
MR. GOLDBERG: People's 192.
(Peo's 192 for id = videotape)
MR. SCHECK: Your Honor--Mr. Goldberg--
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. SCHECK: Out of an abundance of caution--I am informed this is the minute and a half. Can we look at it?
THE COURT: All right. Would you turn the monitor, Miss Clark. Thank you.
(A videotape was displayed to counsel.)
MS. CLARK: This has been shown.
THE COURT: All right. Mr. Scheck, have you had the opportunity to review that again?
MR. SCHECK: Yes. It's fine.
THE COURT: Proceed. Thank you, counsel.
MR. GOLDBERG: Can we see People's 192?
(At 1:24 P.M., a videotape was played.)
(At 1:25 P.M., the playing of the videotape concluded.)
MR. GOLDBERG: Now, sir, based upon the photographs, the still photography and the videography that was done at the crime scene as displayed in this exhibit and your own independent recollections, was that glove on the white blanket?
MR. SCHECK: Your Honor, object to the form of this question. If he's being asked a question as an independent witness, I think it--there's no foundation laid for his competency with respect to photography. If he's being asked about his independent recollection, I have no objection.
MS. CLARK: Objection, your Honor. This is a speaking objection.
MR. SCHECK: So I think the question is compound.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Sir, based upon reviewing the videotapes, was the glove--the ones that we just showed, was the glove on the white blanket?
MR. FUNG: Based on the videotape and the pictures, the--and not from my memory.
MR. GOLDBERG: Yes.
MR. FUNG: Just from the videotapes? It did not appear to be on a blanket.
MR. SCHECK: Then, your Honor, move to strike.
THE COURT: Overruled.
MR. GOLDBERG: And now if you add your memory to the equation, was it on the blanket?
MR. FUNG: No.
MR. GOLDBERG: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: I just want to see a portion of this again where he's laying down the cards, the beginning.
(At 1:26 P.M., a videotape was played.)
MR. GOLDBERG: Okay. Now, sir, what are you doing right there in that picture? We don't have a frame number, but--
MR. FUNG: I am placing the identification tag for the hat on the walkway area.
MR. GOLDBERG: Okay. So that is for the hat?
MR. FUNG: Yes.
MR. GOLDBERG: What photo id number is on the card that's in your hand on this photograph?
MR. SCHECK: Your Honor, if he's asking--is that question directed to what he can read on the video?
MR. GOLDBERG: No. It's not directed to what he can read.
MR. GOLDBERG: It's from your own independent recollection and your notes, can you tell us?
THE COURT: Are you referring to his notes?
MR. GOLDBERG: Yes.
MR. GOLDBERG: From your notes, can you tell us that, sir?
MR. FUNG: From my notes, referring to my notes, that would be 103.
MR. GOLDBERG: And that's the photo id number for what?
MR. FUNG: That would be the photo id for the hat in item no. 38.
MR. GOLDBERG: Okay. Now, where are you placing this card down? Is it on--where does it actually land?
MR. FUNG: It's very close to the yellow post on the walkway area.
MR. GOLDBERG: Your Honor, perhaps for the record, I could just describe this photograph since we don't have a--
THE COURT: Okay.
MR. GOLDBERG: --a counter on it. It's a photograph that appears to depict the--
MR. SCHECK: Well, your Honor, maybe we can just print it out. I think that's the best way to do it rather than--
MR. GOLDBERG: Okay. That's fine. I agree.
THE COURT: Thank you.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Fairtlough, do we have that captured?
MR. FAIRTLOUGH: Yes, your Honor.
THE COURT: Proceed.
MR. GOLDBERG: Okay, sir. Now I would like to show you--well, when you're putting this card down, the one that we've just--on the picture we just printed out, is that--where is that in relationship to the darkened area that's in question?
MR. FUNG: That would be west of the darkened area.
MR. GOLDBERG: Which is towards?
MR. FUNG: Towards the street or towards the camera.
MR. GOLDBERG: Towards the camera. Okay.
(At 1:29 P.M., the playing of the videotape concluded.)
MR. GOLDBERG: All right. That's fine. Sir, I would now like to show you a couple of still photographs. First let's look at People's 56-H for identification. Okay. What does that show, sir?
MR. FUNG: That depicts the glove and the photo id card no. 102.
MR. SCHECK: What number is this?
MR. GOLDBERG: This is 56-H.
MR. GOLDBERG: And is that where you put down the card for the glove?
MR. FUNG: Yes.
MR. GOLDBERG: All right. Now let's take a look at People's 192-A.
MR. GOLDBERG: Okay. I would like to mark as People's next in order 193, which is also a photograph of this same general area.
(Peo's 193 for id = photograph)
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Apparently it's going to take a second to pull this up.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Okay. And what is--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, this is a similar photograph to 56-H, sir?
MR. FUNG: Yes.
MR. GOLDBERG: The one that we saw just before this.
MR. FUNG: Yes.
MR. GOLDBERG: And what is it that's in the foreground just before the card 102?
MR. FUNG: There appears to be a bloody area with leaves present.
MR. GOLDBERG: Okay. Now let's see People's 179. Now, sir, do you see that same leafy area that we just saw in photograph no. 193 in this photograph 179?
MR. FUNG: Yes.
MR. GOLDBERG: And where is that?
MR. FUNG: If you look at the identification card 102 and you go down from it, it's that area there (Indicating) Before--oh, go ahead.
MR. GOLDBERG: Okay. Fine. Now, on this particular photograph, is the card that you were laying down in the video present?
MR. FUNG: No.
MR. GOLDBERG: So this was taken before you laid that card down?
MR. FUNG: Yes.
MR. GOLDBERG: And do you know when in reference to laying the card down the still photography was done of this area?
MR. FUNG: The photographer was taking the photographs as I was putting the cards down.
MR. GOLDBERG: And could you see that in one of the videos?
MR. FUNG: Yes.
MR. GOLDBERG: I just need one more photograph. Okay. Perhaps we could for the record just have him circle the area that he's referring to, the leafy area and print that out.
THE COURT: Yes.
(Brief pause.)
THE COURT: Are we having point maker problems here?
MR. FAIRTLOUGH: Yes, your Honor. We are able to achieve a black color, but no others. You notice the dark part of the screen.
THE COURT: Yes. Are you having maneuvering problems here?
MR. GOLDBERG: Can we put an arrow on it instead?
MR. FAIRTLOUGH: Yes. It's very dark.
MR. FUNG: Can you make an up arrow? That would be better. Okay. More to your left. Up, more, more, more, there (Indicating).
(Discussion held off the record between the Deputy District Attorneys.)
MR. FAIRTLOUGH: It's captured.
THE COURT: Proceed.
MR. GOLDBERG: Okay. Now, can we now see People's 180 for identification? Oh, hold on. I just want to ask one more question while 179 is on here. On 179, when would this be chronologically with respect to the video?
MR. FUNG: This would be before the segment of the video was.
MR. GOLDBERG: Okay. And you know that why?
MR. FUNG: I know that because the card for 103 is not placed down yet.
MR. GOLDBERG: And that's what you were doing in the video?
MR. FUNG: Yes.
MR. GOLDBERG: Now can we see People's 180 for identification?
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: We're going to have to use the elmo. The bar codes aren't working.
MR. GOLDBERG: Okay. Directing your attention, sir, to People's 180, do you see the card no. 10--well, you could see it a few seconds ago. Okay. Do you see the card for no. 103?
MR. FUNG: Yes.
MR. GOLDBERG: And where is that?
MR. FUNG: There's three cards present, and it's the one to the very right.
MR. GOLDBERG: And the leafy clump, is that still in the same location that it was in the previous photograph 179?
MR. FUNG: Yes.
MR. GOLDBERG: And the glove?
MR. FUNG: Yes.
MR. GOLDBERG: So this would represent a photo that was taken shortly after the videotape?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. GOLDBERG: When was this photograph taken, sir?
MR. FUNG: This would be after the videotape was taken.
MR. GOLDBERG: All right. So if we could just skip--can we skip back between 179 and 180 or is that too much?
(Brief pause.)
MR. GOLDBERG: Okay. So 179 is before, Mr. Fung?
MR. FUNG: Yes.
MR. GOLDBERG: And now let's skip back to 180. And 180 is after?
MR. FUNG: Yes.
MR. GOLDBERG: And the glove is in the same location in both photos?
MR. FUNG: Yes.
MR. GOLDBERG: And so is the leafy clump?
MR. FUNG: Yes.
MR. GOLDBERG: Thank you. Now, when you got to the location at Bundy, did you know exactly what had happened in terms of any alteration of the location before you arrived?
MR. FUNG: No.
MR. GOLDBERG: And when you filled out the crime scene identification checklist form that's Defense 1081--
MR. GOLDBERG: If I might approach the witness for just one moment and I can put it on--
THE COURT: You may.
MR. SCHECK: Your Honor, I'm going to object unless it's clear that--
THE COURT: Hold on. What's the ground?
MR. SCHECK: Ground is that he's asking--
THE COURT: Legal ground. There are two--
MR. SCHECK: Legal ground is that the question is vague. He said "You." Is he using that in the singular or the plural?
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Okay. May I approach the witness to just show him the crime scene identification checklist?
THE COURT: You may.
MR. GOLDBERG: Sir, showing you this item, do you recognize that?
MR. FUNG: Yes.
MR. GOLDBERG: And is that part of the crime scene identification checklist?
MR. FUNG: Yes.
MR. GOLDBERG: Now, on that document, there's a question mark in the area that says, "Has the crime scene been altered." Did you see that?
MR. FUNG: Yes.
MR. GOLDBERG: Now, did you put that question mark there or did Miss Mazzola?
MR. FUNG: Miss Mazzola did.
MR. GOLDBERG: Did you know whether the crime scene had been altered before you arrived?
MR. FUNG: I--I assumed it had because the body was--of Nicole Brown Simpson was on the plastic when I walked up to the scene.
MR. GOLDBERG: Okay. And you assumed that when she was murdered, it wasn't on that Coroner's plastic bag?
MR. FUNG: Yes.
MR. GOLDBERG: Now, was it your job as a criminalist to start interviewing witnesses for the purposes of determining what the crime scene was like when they arrived?
MR. FUNG: No.
MR. GOLDBERG: Whose job is that?
MR. FUNG: That is the investigating officer, officers' job, the detectives.
MR. GOLDBERG: All right. Now, when you--when the crime scene investigation checklist was being filled out, the portion that lists the--that's fine--the portion that lists the item numbers or the photograph numbers and the measurements--
MR. FUNG: Yes.
MR. GOLDBERG: --did you do that or did Miss Mazzola do it or was it a combination of both at this location?
MR. FUNG: It was a combination of both, but she did the majority of it.
MR. GOLDBERG: Of the handwriting?
MR. FUNG: Yes.
MR. GOLDBERG: When that was being done, when you were doing the measurements, were you working together?
MR. FUNG: Yes.
MR. GOLDBERG: And were those parts of the crime scene identification checklist relating to the measurements and the item numbers filled out as you were investigating the crime scene?
MR. FUNG: Yes.
MR. GOLDBERG: Now, I would like to ask you about the rear gate stain that you recovered on July the 3rd of 1994.
MR. FUNG: Yes.
MR. GOLDBERG: Sir, do you know--did you see that stain from your own independent recollection on the 13th?
MR. FUNG: I don't recall seeing it on the 13th.
MR. GOLDBERG: Okay. And is it your--do you--is it your understanding of the People's position that the stain was there on the 13th?
MR. SCHECK: Objection, your Honor.
THE COURT: Sustained.
MR. GOLDBERG: Can I be heard, your Honor, because it goes to state of mind?
THE COURT: At the sidebar.
MR. GOLDBERG: Thank you.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the sidebar.
MR. GOLDBERG: Well, he's asked and answered numerous questions of his understanding of the People's theory based on what other people have told him. The Defense is trying to show that he's trying to lie to conform his testimony to the Prosecution's theory. I would like to show the Prosecution's theory is, it was there on the 13th, he believes it to be there on the 13th, but he cannot testify that it was there on the 13th because he didn't see it, and it shows that he is not willing to bend and conform his testimony or even I think the terminology sometimes used is "Fudge" his testimony by testifying to something that he ultimately knows is true, that it was there on the 13th.
MR. SCHECK: I think he can get that--the form of the question is plainly argumentative. He can ask him other questions he's been asking before, you know.
THE COURT: I don't like the form of the question.
MR. SCHECK: I could give him some suggestions, but it's not my place.
MR. COCHRAN: Don't.
THE COURT: The topic is germaine, but I don't like the way that question is formulated.
MR. COCHRAN: On that subject, can we remember again--in the spirit of cooperation, I refrained from objecting and my colleague on the other side forgot again. I didn't say anything about it.
MR. SCHECK: I've been very cooperative.
THE COURT: He's referring to Miss Clark.
MR. COCHRAN: You objected to--
MR. DARDEN: His objection was a speaking objection. We are talking about courtroom rules and procedures which your colleague is not following.
MR. COCHRAN: No, no. But that's not--that's for Hank Goldberg to do. That's what I'm saying. He's in violation of doing that. I'm just clearing it up.
THE COURT: All right. Why don't you rephrase the question.
(The following proceedings were held in open Court:)
THE COURT: Thank you, counsel. Proceed.
MR. GOLDBERG: Sir, did you ever--did you ever at any time consider--even consider changing your testimony to say that you did see it on the 13th--
MR. FUNG: No.
MR. GOLDBERG: --to help the People?
MR. FUNG: No.
MR. GOLDBERG: All right. I'd just like to ask a couple more questions about the collection process of the blood at Bundy. When you were observing Miss Mazzola, was she changing gloves in-between samples that you could see?
MR. FUNG: I don't recall her changing gloves on purpose between every sample.
MR. GOLDBERG: Okay. Is that something that is required?
MR. FUNG: No, it's not.
MR. GOLDBERG: Now, sir, have you read a number of authors in the area of criminalistics on the subject of collection of blood?
MR. FUNG: I've read some, yes.
MR. GOLDBERG: And did you look at the materials that were written by Dr. Henry Lee, a leading advocate of using DNA technology in criminal cases?
MR. SCHECK: Objection.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Did you read the materials that Dr. Lee wrote for the Federal Bureau of Investigation?
MR. FUNG: Certain portions of it.
MR. GOLDBERG: Department of justice. And is he a leading advocate of using DNA technology to your knowledge?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. GOLDBERG: I didn't hear the grounds.
MR. SCHECK: Argumentative. Move to strike.
THE COURT: It's hearsay. Rephrase the question.
MR. GOLDBERG: Okay. Is he considered to be a leading forensic expert?
MR. FUNG: Yes.
MR. GOLDBERG: And does he say in his materials that you have to change gloves between samples?
MR. FUNG: He doesn't mention that.
MR. GOLDBERG: Did you also read Mr. Saferstein's or Dr. Saferstein's book, the portions of his book dealing with collection of biological evidence stains?
MR. FUNG: Portions of it, yes.
MR. GOLDBERG: And you said that your interpretation of Dr. Saferstein was that you could not use plastic as a final packaging material; is that correct?
MR. FUNG: Yes.
MR. GOLDBERG: But you could use it as an intermediate one to transport to the lab?
MR. FUNG: Yes.
MR. GOLDBERG: How do you know--why do you believe that that interpretation is correct?
MR. SCHECK: Objection.
THE COURT: Overruled.
MR. SCHECK: Well, your Honor, may we approach for a minute?
THE COURT: Overruled. Overruled.
MR. SCHECK: I think I--
THE COURT: Overruled. Proceed.
MR. FUNG: I recently saw an interview of--
MR. SCHECK: Objection.
THE COURT: All right.
MR. SCHECK: Move to strike.
THE COURT: Sustained.
MR. GOLDBERG: May we approach?
THE COURT: Yes, with the Court reporter.
(The following proceedings were held at the bench:)
MS. CLARK: Your Honor, I'm going to--just before you begin, Mr. Scheck--
THE COURT: Hold on. Hold on.
MS. CLARK: I am sorry.
THE COURT: Miss Clark.
MS. CLARK: I'm going to ask the Court to admonish Mr. Neufeld from making loud repeated comments concerning the objections and the questions being asked by Mr. Goldberg. He does it audibly so that the jury can hear every word in response to every ruling and every remark made by his cocounsel, Mr. Scheck, and in response to any questioning that may be objected to by Mr. Scheck, and I think it's highly inappropriate and obviously done for the purpose of influencing the jury. And they can hear it obviously, your Honor, because I can hear every word and it's said very loudly while he's facing them.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: On that issue, your Honor?
THE COURT: No.
MR. GOLDBERG: As to this witness' testimony, he is allowed to rely on opinions of other experts. He is allowed to rely on anything that is of the nature that would be relied on by experts in this field, and Dr. Saferstein has said you do not have to use paper, you can use plastic.
THE COURT: Where has Dr. Saferstein said that? Where is this recorded?
MR. GOLDBERG: Well, he said it in a number of recorded interviews that this witness has seen.
MR. SCHECK: Your Honor, apparently Dr. Saferstein was interviewed on I think Geraldo or something. I haven't seen the interview. I only heard of it. But it seems the key issue here is substance. If they want to call Dr. Saferstein to say it's okay to keep samples in a plastic bag for seven hours in a truck, let them call him. But I haven't heard him say that he specifically approves of that. The text of his books speak for itself. It seems to me improper to have this witness testifying to hearsay.
THE COURT: Okay. Hold on.
(Brief pause.)
THE COURT: All right. Mr. Goldberg.
MR. GOLDBERG: Yes, your Honor.
THE COURT: 721 allows somebody to be cross-examined and direct examined on published reports, which I don't think Geraldo qualifies as. Do you have any other exceptions that would allow hearsay by Dr. Saferstein seen on TV?
MR. GOLDBERG: How about the elmo exception to the hearsay? If we put it up on the elmo, it's not hearsay no more. Your Honor, what I would say is that an expert is allowed to rely on things that he learned in seminars or things that he learned while he was being trained at LAPD. He can talk about what his training was, how they taught him to do things. They attend seminars of the American Federation of Criminalists and the California Association of Criminalists all the time.
THE COURT: But the restriction is to publications. that's what 721 says.
MR. GOLDBERG: But he's not being cross-examined. it's direct examination.
THE COURT: I understand that.
MR. GOLDBERG: And it's not coming in for the truth of the matter asserted, but the basis for his opinion.
THE COURT: Well, certainly it's coming in for the truth of the matter.
MR. GOLDBERG: No. Well, no, because I don't think expert treatise necessarily does come in for the truth of the matter. It comes in either to impeach the expert or to support his opinions, and when the expert is testifying, what his opinion is based upon.
MR. SCHECK: You were offering it--if I may interrupt you just a minute--as to what the true interpretation of Saferstein's text is. So he's offering it for the truth.
THE COURT: All right. I am going to sustain the objection. Mr. Cochran, would you warn Mr. Neufeld to keep his voice down. I can hear him and I've already admonished him once. If I have to admonish him again, it will be in front of the jury.
MR. SCHECK: It's just that he has a deep loud voice. He's talking to me, and I'll tell him to whisper.
MR. COCHRAN: I'll tell him to write notes.
MS. CLARK: Mr. Scheck had already left counsel table.
(The following proceedings were held in open Court:)
THE COURT: Thank you, counsel. Proceed.
MR. GOLDBERG: Does Saferstein say anything, his book, about what you're supposed to use if you collect a wet stain on a wet cotton swatch, what you are supposed to use to get it from the location to the laboratory?
MR. FUNG: Not in that book, no.
MR. GOLDBERG: And does Dr. Lee in his handout talk about that?
MR. FUNG: No.
MR. GOLDBERG: Does--did you also read Lee, Gaensslen and de forest, their work and the sections pertaining to collection of biological stains?
MR. FUNG: Portions of it, yes.
MR. GOLDBERG: And did they advocate or did they specifically say how you get the wet stain from the scene to the laboratory?
MR. SCHECK: Object on the ground that if he's asking for--about a specific section of the text, he should refer to it.
MR. GOLDBERG: Well, it was already cross-examined--
MR. SCHECK: In cross-examination, he was referred to a specific section.
THE COURT: Yes. Do you want to tell us which portion of that book?
MR. GOLDBERG: It was the section already cross-examined on.
THE COURT: All right. We need the reference for the record, counsel. Mr. Scheck, do you happen to know what chapter?
MR. GOLDBERG: It starts on page 244. It's