Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted, Arthur Walsh, Deputy City Attorney, appearing on behalf of Ms. Kestler.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

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

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Uelmen, Mr. Blasier, Mr. Neufeld. The People are represented by Miss Clark, Mr. Goldberg, Mr. Darden. The jury is not present. And the jury is up in the holding lounge upstairs and I recollect that I saw Michele Kestler this morning come in with a city attorney.

MR. GOLDBERG: She is over here.

MR. COCHRAN: Your Honor, may I address the Court before you start?

THE COURT: All right. Mr. Cochran.

MR. COCHRAN: Yes, thank you. Good morning, Judge Ito.

THE COURT: Good morning, sir.

MR. COCHRAN: Your Honor, one matter I wanted to bring to the Court's attention and perhaps get some clarification. Yesterday the Court asked Miss Clark whether or not she could establish a foundation, as I recall it, for some alleged videos of our client with gloves which we had seen in the past and Miss Clark smiled at your Honor and said "Absolutely." We are informed that yesterday after court Susan Childs of the District Attorney's office called various members of the media and said Miss Clark had been misquoted or had been misunderstood regarding their ability to lay a foundation regarding these items. And as an Officer of the Court I'm just trying to get a clarification of what is true and what was meant by what Miss Clark said. If there is some misunderstanding, we have a right to know that and we want to know exactly, and you have a right obviously to know what was meant. If they are backing up--if you read the L.A. Times today you will see some mention of that I think--forgive me. I forgot who I was talking to.

THE COURT: It is not out of disrespect for the L.A. Times, but I found that it is not helpful for me to read news media reports of this case because I don't want to be influenced by anything.

MR. COCHRAN: I understand, your Honor. Certainly. We share that view on occasion ourselves. Your Honor, but at any rate, I rise to ask for a clarification of whether Miss Clark is saying she can lay a foundation that these gloves are similar? Are these the exact same gloves? The information we got, and much of the media well, these are going to be the same gloves and we know that is not true, so I think we should have some clarification of that and I wanted to do that early on.

THE COURT: Good morning, Miss Clark.

MS. CLARK: Good morning. I don't try my case in the press and I don't read the papers to see how I should respond to counsel in court. I think it was very clear to the Court what I said and that is all that matters. What the L.A. Times thinks I said, or any other reporter, makes no difference to me. The Court understood me and the Court questioned us at side bar and I don't think there is any misunderstanding between the Court and myself or counsel and I don't think any further clarification is required.

THE COURT: We did discuss this matter twice, once in open court and once at the side bar, and at the side bar my recollection was that we discussed the nature of the stitching and a few other--

MR. COCHRAN: If I may--

MS. CLARK: May I add one more thing?

THE COURT: Yes.

MS. CLARK: Just a minute.

THE COURT: Yes.

MS. CLARK: One more thing is that whether or not counsel puts in the glove drying experiment, the People's position that those gloves and those photographs--excuse me--of photographs of Mr. Simpson wearing those gloves will be relevant on rebuttal, regardless of what the Defense does with respect to experiments or not, because they are relevant to disprove the conspiracy theory. There are many reasons why those glove photographs will come in in rebuttal, we also believe, regardless of whether or not they come in during the Defense case. There was simply one chance to put them in during the Defense case. There may be others, but if there are not, on rebuttal to refute the conspiracy theme and to refute the planting theme that the Defense has throughout carried in this case, I think--

THE COURT: So I take it the bottom line, Miss Clark, is that you stand by your statements on the record of yesterday?

MS. CLARK: Yes, your Honor, I do.

THE COURT: All right.

MR. COCHRAN: That is fine then, because the only thing I wanted to point out, when Susan Childs who represents that office makes calls saying she was misquoted, I think we have a right to inquire upon that and that is all we have done, your Honor.

THE COURT: I understand that.

MR. COCHRAN: We vigorously dispute that. They will never be able to prove these gloves--that our client wore those gloves and you will see. And the last thing I would like to say is that we have opened no doors on this. If they had this information, Judge, they would have put it in in their case in chief and they didn't and we will vigorously oppose any attempt on rebuttal at that time.

THE COURT: All right. Just for counsel's information, late yesterday I received from the FBI a package of photographs and videotapes regarding shoes and gloves that my staff is cataloguing right now and will make available to you--

MR. COCHRAN: Thank you, your Honor.

THE COURT: --later this morning.

MR. COCHRAN: Thank you.

MS. CLARK: Thank you, your Honor.

THE COURT: All right. Let's proceed to the Michele Kestler issue. My understanding is the Defendant wishes to call Miss Kestler to testify first to the normal things, that she is the lab director, that she did participate in the inventorying of some of the--all of the evidence that was in possession of the LAPD at a certain point in time, did other things with regards to the physical evidence itself, and then there are the other issues regarding leaks of information. All right. So those two general areas I understand is what we are going to inquire into; is that correct? Mr. Neufeld, are you going to handle this?

MR. NEUFELD: Yes, your Honor. I don't even intend to spend that much time on her inventorying, things like that. I'm going to focus much more on access to information, where the security system was at LAPD for handling the information in this case, and what her role was in that and how that relates to the leaks. I'm going to make it I think even more focused.

THE COURT: All right. Well, this is a 402 hearing.

MR. NEUFELD: Right.

THE COURT: All right. And I understand we have counsel from the city attorney's office.

MR. WALSH: Arthur Walsh, Assistant City Attorney, here on behalf of Miss Kestler.

THE COURT: All right. Mr. Walsh, have you had the opportunity to consult with Defense counsel regarding their reasons for asking for this 402 hearing this morning?

MR. WALSH: No, your Honor, I have not.

THE COURT: All right. Do you have any comment or have you discussed this with the District Attorney's office?

MR. WALSH: I understand both from talking to the District Attorney and from general press reports what the scope of this is intended to be, and I at the present have no objection to questions directed to the witness regarding her own personal knowledge of these matters. However, should questions intrude into her knowledge of any internal affairs investigation or any matter relating to personnel records of the police department employees, I will make appropriate objections at that time.

THE COURT: All right. Then the Court will note your presence for the record and you may rise to assert any objections at a time you feel appropriate.

MR. WALSH: Thank you, your Honor.

THE COURT: And Miss Kestler, what are your time constraints this morning?

MS. KESTLER: I need to leave by 10:00.

THE COURT: Let's get started.

MR. GOLDBERG: Your Honor, for the record, as the Court knows, we did object to this procedure, given that there is no offer of proof and in a 402 hearing you do not necessarily have to call live witnesses since it is merely a pretrial ruling of how the Court would later rule at the trial itself.

THE COURT: All right. Your objection is noted for the record. Thank you.

MR. NEUFELD: Did Miss Kestler say she had to leave by--what time did she say?

THE COURT: Ten o'clock.

MR. NEUFELD: Ten o'clock. Thank you.

THE COURT: All right. Mrs. Robertson.

Michele Kestler, (402) called as a witness by the Defendant, pursuant to evidence code section 402, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

MS. KESTLER: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

MS. KESTLER: Michele Kestler, M-I-C-H-E-L-E K-E-S-T-L-E-R.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you.

DIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Good morning, Miss Kestler.

MS. KESTLER: Good morning.

MR. NEUFELD: Miss Kestler, what is your current title?

MS. KESTLER: Currently I am the laboratory director, chief forensic chemist for the Los Angeles Police Department.

MR. NEUFELD: And as of June 12th, 1994, what was your title?

MS. KESTLER: I was the assistant lab director or one of the assistant lab directors for the Los Angeles Police Department crime laboratory.

MR. NEUFELD: And when did your title change?

MS. KESTLER: Sometime in July. I don't recall the date.

MR. NEUFELD: Sometime July of 1994?

MS. KESTLER: Uh-huh, that's correct.

MR. NEUFELD: Now, as the laboratory director do you have--and before that as the assistant laboratory director, do you have some day-to-day management responsibilities for the various units within SID?

MS. KESTLER: Yes, I do.

MR. NEUFELD: And during that time period from June of 1994 to the present, was it also your practice to on occasion take responsibility for managing some of the larger cases?

MS. KESTLER: Umm, manager--more oversee, not necessarily manage. Oversee and stay involved and help--cause them to proceed at a somewhat normal pace, as opposed to helter skelter.

MR. NEUFELD: Okay. In this particular case did you play a role in overseeing the processing and handling of this case?

MS. KESTLER: I was attempting to assist in that process because at that time Mr. Matheson--there was no other assistant lab director, so I played a little larger role than I normally would.

MR. NEUFELD: Well, for instance, you were contacted by the police as early as June 13th at your home to be informed about what was going on; isn't that right?

MS. KESTLER: Just to tell me that a large case had taken place.

MR. NEUFELD: And you had meetings shortly after that on June 15th with Marcia Clark and other people about the processing and handling of evidence, didn't you?

MR. GOLDBERG: This is not relevant to the 402 issues, your Honor.

THE COURT: It is not real relevant, counsel. We are talking about September issues.

MR. NEUFELD: All right.

MR. NEUFELD: Well, Miss Kestler, this case was given a special designation of a confidential case, was it not?

MS. KESTLER: Yes.

MR. NEUFELD: Okay. And as a confidential case are certain different procedures set up to maintain security of the testing of evidence and for the results of the testing of evidence?

MS. KESTLER: The testing of evidence and--I'm not sure I understand your question. I can answer half and I'm not sure that is answering all of it.

MR. NEUFELD: All right.

MS. KESTLER: As for the testing of evidence, no, the testing is still done under the same process.

MR. NEUFELD: What about the dissemination of test results and information? Is it shared differently in a case once it has been designated "Confidential"?

MS. KESTLER: Well, normally the laboratory only shares the results with the investigating officers and with the prosecutorial agency. That doesn't change either, other than the results are held in a separate secured area, usually a supervisor's office, file cabinet some place until such time as it is over.

MR. NEUFELD: And in this case, is that the procedure that was utilized?

MS. KESTLER: Yes.

MR. NEUFELD: Now, when you say that the test results are shared only with certain select people, in this particular case who were those people, first of all, at SID with whom the test results would be shared with?

THE COURT: Why don't we rephrase that question because it is vague.

MR. NEUFELD: Okay.

THE COURT: We are talking about a certain set of test results.

MR. NEUFELD: Let me back up one step.

THE COURT: All right.

MR. NEUFELD: Were you also designated as the laboratory director to be the point person at SID to be the recipient of reports governing test results in this case that were mailed to SID from outside agencies?

MS. KESTLER: That is--I'm always the point person for all test results, only because they are addressed to me so that they don't go to the bomb squad or some other portion of SID who would not know what to do with them.

MR. NEUFELD: For instance you received--you had test results mailed to you in this case from the Federal Bureau of Investigation; is that right?

MR. GOLDBERG: It is vague as to whether she physically received or were these just addressed to her.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Were the results that came from the FBI addressed to you, Michele Kestler, at SID laboratory?

MS. KESTLER: It is unclear to me. I don't recall whether we actually received them directly in the laboratory or whether they went to the court at that time. I have forgotten.

MR. NEUFELD: Let me just see if this refreshes your recollection.

THE COURT: Counsel, I'm going to sustain the Court's own objection. I'm not interested in this.

MR. NEUFELD: I think, your Honor, it is going to become very, very relevant in about five minutes.

THE COURT: No. We are talking Cellmark here; we are not talking FBI.

MR. NEUFELD: All right. I can even explain it in front of--there is no problem, your Honor. The issue is that at the same time that the report was received from Cellmark they also received a report from the FBI regarding the hair and fiber analysis.

THE COURT: It is irrelevant.

MR. NEUFELD: Which was also leaked to the press the same day.

THE COURT: It is irrelevant. The only thing I'm interested in is whether or not the Cellmark results--

MR. NEUFELD: All right. Fine.

MR. NEUFELD: Have you seen a report from Cellmark laboratory dated September 8th, 1994, that was faxed to Michele Kestler at the SID laboratory on September 12th, 1994?

MR. WALSH: Objection, vague as to time.

THE COURT: Overruled.

MS. KESTLER: I saw a report dated September 8th, a hard copy of that report, that at some time was faxed, but it was not faxed to me, it is addressed to me. I do not know what the cover fax--who the fax was sent to or when.

THE COURT: You don't know to whom this was faxed?

MS. KESTLER: No. Again, my name is on the header but I don't know what the fax cover sheet would have said, nor did I ever see it.

MR. NEUFELD: Your Honor, at this time I would like to introduce for the record for the Court's consideration of these issues a one, two, three, four, five-page report to Cellmark which is a report dated September 8th supplying results of DNA testing on the Bundy drops with a fax from Cellmark of September 12th, 1994--

THE COURT: And what is the--excuse me. Does this document have the imprints of the number that it was faxed to?

MR. NEUFELD: No, it has the imprint--

THE COURT: Which is the more important point.

MR. COCHRAN: The number that it was faxed from, that I see on this particular sheet--

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: The copy that we were provided by the Prosecution in discovery says where it was faxed from on September 12th, 1994. It is addressed to Michele Kestler at the Los Angeles Police Department.

THE COURT: All right.

MR. NEUFELD: But we also have, in conjunction with this, which we received in discovery and I would like to introduce it at the same time, because it came at the same time as part of the same discovery, was a cover sheet from the Los Angeles Police Department Scientific Investigation Division of a fax from Michele Kestler to Marcia Clark at the Los Angeles County District Attorney's office dated September 16th, 1994. In other words, we only received--

THE COURT: I understand. Okay.

MR. NEUFELD: --a copy that the District Attorney--

THE COURT: Mrs. Robertson, what is the next in order for Defense exhibits?

THE CLERK: 1281, your Honor.

THE COURT: All right. The Cellmark report of--dated September 8th addressed to Miss Kestler will be 1281 and 1282 will be the fax of Miss Kestler to Miss Clark.

(Deft's 1281 for id = Cellmark report)

(Deft's 1282 for id = fax)

MR. WALSH: Your Honor, I wonder if I might have the opportunity to review these? I haven't seen them.

THE COURT: All right. Mrs. Robertson, would you have the staff make copies for everybody, please. It would speed things up in the future, if you are going to use documents, that we have multiple copies available.

MR. NEUFELD: I apologize, your Honor.

THE COURT: All right.

(Brief pause.)

THE COURT: All right. Proceed, counsel.

MR. NEUFELD: I wanted to show her a copy of that document to see if it refreshes her recollection as to a report that she did in fact receive from Cellmark diagnostics, but--

THE COURT: She has testified she saw it.

MR. NEUFELD: Okay. All right.

THE COURT: She is familiar with what the report is. The issue is when did she get it and when did she see it.

MR. NEUFELD: Michele Kestler, you were at the office at certain points in time on September 12th, 1994; isn't that correct?

MS. KESTLER: That's correct.

MR. NEUFELD: And you said that given the fact that this was a confidential case, only certain people at SID were given access to reports or to this report, if you will; is that correct?

MR. WALSH: Objection. That misstates the testimony, your Honor.

THE COURT: Overruled. Counsel, Mr. Walsh, I'm going to allow you to make objections concerning the scope; however, the Prosecution is the real party in interest and if they choose not to make evidentiary objections, that is their choice.

MR. WALSH: Thank you, your Honor.

MS. KESTLER: Could you repeat the question?

MR. NEUFELD: Sure.

MR. NEUFELD: Given the fact that this was a confidential case, who at SID did you authorize to have access to the Cellmark report dated September 8th that was faxed to your office on September the 12th?

MR. GOLDBERG: Assumes facts not in evidence, that she made such authorization.

THE COURT: Overruled.

MS. KESTLER: I didn't know the report was coming, so I would have given no such authorization.

MR. NEUFELD: Well, prior to this report coming, since you said this case had already been classified as--I'm sorry, had already been characterized as a classified case--

MR. GOLDBERG: Objection.

THE COURT: Sustained. Rephrase the question. Confidential case.

MR. NEUFELD: I'm sorry, what?

THE COURT: Confidential case.

MR. NEUFELD: I'm sorry. Thank you. Confidential.

MR. NEUFELD: Since this case had already been characterized as a confidential case, what policy was in effect as to who at SID would have access to the reports that came from Cellmark?

MS. KESTLER: Anyone that was involved with the serology aspects of the case, which at that time would have been off the top of my head, and there could have been more, because I don't remember who was doing what at what moment, Mr. Matheson, Mr. Yamauchi and those are the only two that I can recall at the time.

MR. NEUFELD: And of course yourself?

MS. KESTLER: And myself.

MR. NEUFELD: And it was your practice to read the reports from Cellmark at some point after they were received; isn't that correct?

MS. KESTLER: Not necessarily. Sometimes Greg Matheson would just fill me in on what it was.

MR. NEUFELD: Miss Kestler, do you recall having a discussion with me and Barry Scheck at the office of the city attorney on July 13th of 1995?

MS. KESTLER: Yes.

MR. NEUFELD: And at that time, during that meeting, didn't you say that you personally read every single Cellmark and DOJ report that came to the office?

MS. KESTLER: No, I didn't say that.

MR. NEUFELD: Okay.

MS. KESTLER: I said I looked at them if we got them, but never got any DOJ reports.

MR. NEUFELD: Okay. So you said--in other words, that you did look at those reports that did come to the SID laboratory; is that right?

MS. KESTLER: Yeah, but I didn't read every single one word for word, no.

MR. NEUFELD: Okay. So would it be a fair statement that you did look at this report which is dated September 8th and that was faxed to the SID laboratory to Michele Kestler at some point?

MS. KESTLER: At some point I saw a copy of the fax.

MR. NEUFELD: Okay. So you are saying that the only three people at SID who would have access to this report would be Collin Yamauchi, Gregory Matheson and yourself; is that right?

MR. GOLDBERG: Misstates the testimony; asked and answered.

THE COURT: Overruled.

MS. KESTLER: Those are the only people; however, this report was faxed to someone. It was not faxed to me. I don't know who that individual is, so that individual would have to tell you who had access to that report.

MR. NEUFELD: Didn't you tell us on July 13th, Miss Kestler, that the person who actually received the fax at the fax machine was Gregory Matheson?

MS. KESTLER: I'm assuming that, but I don't know that personally. I don't have personal knowledge of that.

MR. NEUFELD: Did Gregory Matheson tell you at any time between September 12th, 1994, and today, that he was the person who stood by the machine and personally received it?

MR. GOLDBERG: Calls for hearsay.

THE COURT: Sustained.

MR. NEUFELD: It is a 402 hearing, your Honor. I believe the Court can consider hearsay.

THE COURT: Sustained. The rules of evidence still apply, counsel.

MR. NEUFELD: As the head of this laboratory do you know who it was who received a fax on September 12th, 1994, at the SID laboratory?

MR. GOLDBERG: No foundation for personal knowledge. Objection, calls for hearsay.

THE COURT: Overruled. Do you know?

MS. KESTLER: I have no personal knowledge of who received it.

THE COURT: All right. Hold on. Hold on. Where is the fax machine located in the laboratory?

MS. KESTLER: It is in the internal offices outside my office. It would be like back in your chambers.

THE COURT: So it is part of your office complex?

MS. KESTLER: That's correct.

THE COURT: All right. And who is the SID person whose job it is to maintain the fax machine to keep it full of paper?

MS. KESTLER: Well, at that point we had no one because I didn't have a secretary, so it was just the people within that office.

THE COURT: Proceed.

MR. NEUFELD: Did you at any time, as the head of the laboratory, undertake to find out through an investigation who it was who personally received the fax on September 12th, 1994, from Cellmark diagnostics?

MR. GOLDBERG: Not relevant and calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: I can say that I was told by someone that they received it.

MR. NEUFELD: And who was that person?

MR. GOLDBERG: Calls for hearsay, your Honor.

THE COURT: Overruled.

MS. KESTLER: Greg Matheson.

MR. GOLDBERG: Motion to strike.

THE COURT: Overruled.

MR. NEUFELD: Now, you said that you named the people at SID who were given access to that report. You also said a little bit earlier that people in the investigating agency were also entitled to have access to that report. Did I misunderstand you?

MS. KESTLER: I didn't say they had access to the report. I said that we would have told them what was in the report if they had asked.

MR. NEUFELD: All right. And who were the people at the investigating agency who would be entitled to be told what the substance of the report was, had they asked?

MR. GOLDBERG: No foundation.

THE COURT: Overruled.

MS. KESTLER: Umm, the lead investigators, Tom Lange, Phil Vannatter, and I suppose if Captain Gartland had asked for it, he would have gotten it, for example.

MR. NEUFELD: Where were these reports kept once they arrived? "These reports" I'm referring now to Cellmark reports?

MS. KESTLER: In Greg Matheson's office.

MR. NEUFELD: And where is Greg Matheson's office in relation to your office?

MS. KESTLER: It is in the serology unit.

MR. NEUFELD: Well, is Greg Matheson's office still in the serology unit or has it moved?

MS. KESTLER: It has moved now.

MR. NEUFELD: Okay. He is in the same suite as you?

MS. KESTLER: Yes.

MR. NEUFELD: And would they be locked up in Mr. Matheson's office?

MS. KESTLER: Yes.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Goldberg, does the Prosecution have a copy of this particular report dated September the 8th that has the telephone number to which it was faxed?

MR. GOLDBERG: No. My copy doesn't have a telephone number to which it was faxed, but it does have the number from which it was faxed.

THE COURT: All right.

MR. GOLDBERG: So it appears to be similar to the--I showed it to counsel.

THE COURT: Miss Kestler, do you know where the original September 8th report from--faxed report from Cellmark is?

MS. KESTLER: No, I do not.

MR. NEUFELD: Actually, your Honor, this--the People's copy is better than ours, for one important reason. What it has on top of the line that shows the fax from Cellmark, it has a line dated September 16th showing that this same copy was faxed from SID Piper Tech to the District Attorney's office, so I think you probably would want a copy of their copy.

MR. GOLDBERG: Although we already know that because it is on the facsimile transmission sheet.

MR. NEUFELD: I understand, but I'm just saying that every single page has an additional line which was not visible on our copies.

THE COURT: All right. Proceed.

MR. NEUFELD: Can I just give this to Deirdra?

MR. GOLDBERG: That is my only copy.

MR. NEUFELD: I'm going to ask her to make copies.

THE COURT: Let's not waste the Court's time at this point to do that.

MR. NEUFELD: Fine.

MR. NEUFELD: Now, Miss Kestler, you learned, did you not, that some of the results reflected in that Cellmark report, which was faxed to SID on September 12th, appeared in newspaper articles on September 14th and September 15th of 1994? Do you know that?

MR. GOLDBERG: Calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: I know that at some time they appeared in newspaper articles. I don't know what date.

MR. NEUFELD: Well, not the exact day, but Miss Kestler, you are aware of the fact that it appeared in newspaper articles during that same week of September 12th, 1994; isn't that correct?

MR. GOLDBERG: It also calls for a conclusion as to what was the source of the newspaper articles.

THE COURT: Sustained. "Results" is vague, counsel.

MR. NEUFELD: All right.

(Brief pause.)

MR. NEUFELD: Did you learn, Michele Kestler, that on September 15th, 1994, the Los Angeles Times published an article in which it said that: "Final DNA tests in the OJ Simpson murder case point to Simpson as the source of at least some of the blood drops found near the bodies of Nicole Brown Simpson and Ronald Lyle Goldman, sources close to the case said Wednesday."

MR. GOLDBERG: Calls for hearsay. No foundation for personal knowledge.

THE COURT: Overruled.

MS. KESTLER: I am not aware of that particular article. I just know there was some.

MR. NEUFELD: Miss Kestler, when you were interviewed by Mr. Scheck and myself on July 13th, 1995, didn't you tell us that Mr. Matheson showed you this report after it was faxed to him and that you were aware at about the same time that portions of the report had been leaked to the press? Didn't you tell us that on July 13th?

MR. GOLDBERG: That is unintelligible.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Didn't you tell us on July 13th, 1995, Miss Kestler, that you learned that weeks--within a couple of days after--after September 12th, that portions of that report had been leaked and appeared in the press?

MR. GOLDBERG: Calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: I heard that some of the Cellmark results or some of the Cellmark work, which were also in that report, had been leaked to the press. I don't know if they came from that report or what their source was.

MR. NEUFELD: Okay.

MR. GOLDBERG: Motion to strike the witness' answer as calling for speculation.

THE COURT: Overruled.

MR. NEUFELD: Now, you also--your Honor, do you have the copy that was--okay. This is the copy that is actually in evidence? All right. I will show you--what number is it, your Honor, that was marked.

THE COURT: The Cellmark report?

MR. NEUFELD: With the cover fax sheet to Marcia Clark.

THE COURT: The cover fax sheet is 1282.

MR. NEUFELD: Okay.

THE COURT: It has DNA discovery no 01728.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: I'm going to show you, Miss Kestler, Defendant's 1281 and 1282 and ask you to take a look at it.

MS. KESTLER: (witness complies.)

MR. NEUFELD: On the fax sheet from LAPD SID of the Cellmark report to Marcia Clark at the D.A.'s office on September 16th, does it indicate on the cover sheet that you are the sender of this report?

MS. KESTLER: My name is down there at the bottom, but that is normally where I would put my name. This is not in my handwriting, so I don't recall directing someone to send it.

MR. NEUFELD: But it is your name that appears at the bottom of that cover sheet in its printed--

MS. KESTLER: No, it is handwritten.

MR. NEUFELD: That is what I mean.

MS. KESTLER: It is script.

MR. NEUFELD: It is not part of the typed form?

MS. KESTLER: Right?

MS. KESTLER: It was something that was written in?

MS. KESTLER: Right.

MR. NEUFELD: Thank you. And Miss Kestler, when you learned that--

THE COURT: Excuse me, counsel. Do you know whose handwriting this is?

MS. KESTLER: No, I don't recognize it.

THE COURT: Thank you. Proceed.

MR. NEUFELD: Miss Kestler, when you learned that some of the results from Cellmark that are contained in the report that you received on September 12th and had not been sent out to the District Attorney until September 16th appeared in newspaper accounts prior to the date that they were sent to Marcia Clark of the District Attorney's office, did you, as the head of that laboratory, undertake any efforts to find out whether someone at SID was the source of that information?

MR. GOLDBERG: Calls for a conclusion as to the source of the newspaper accounts.

THE COURT: Overruled.

MS. KESTLER: Well, I didn't--I didn't feel we were the source, so I did no investigation. I presumed the leak had come from Cellmark. That was my assumption.

MR. GOLDBERG: Motion to strike. Calls for speculation.

THE COURT: Overruled.

MR. NEUFELD: You said you didn't feel that you were the source of the leak. You mean SID, I take it; is that right?

MS. KESTLER: That's correct.

MR. NEUFELD: Okay. What was your basis for making that conclusion.

MR. GOLDBERG: It is not relevant, your Honor. Calls for speculation.

THE COURT: Overruled.

MS. KESTLER: I just feel that our employees have too much integrity and honesty and have been involved in many, many cases before and we have never been a source of any leaks.

MR. NEUFELD: Did you make any inquiry of the other two people who you said had the limited access to the Cellmark report as to whether or not they were the source of the leak?

MR. GOLDBERG: That misstates the testimony that they were the only ones that had access.

THE COURT: Sustained. Rephrase the question. Just use the specifics, counsel.

MR. NEUFELD: Did you ask Collin Yamauchi whether he knew anything about how this information was leaked to the press?

MR. GOLDBERG: Not relevant.

THE COURT: Overruled.

MS. KESTLER: I don't believe I asked him specifically. I believe my question was in general to the individuals involved had they disseminated this report already somehow.

MR. NEUFELD: When you say you made this inquiry to the individuals involved, first of all, which individuals are you referring to?

MS. KESTLER: I am assuming, because I don't recall, that it would be Greg and Collin primarily. Probably Greg and then Greg would have gone forth and asked the rest of the individuals.

MR. GOLDBERG: Motion to strike as speculation.

THE COURT: Overruled.

MR. NEUFELD: And when did you have this inquiry of Greg Matheson?

MS. KESTLER: I don't recall. Right around the time of the leak.

MR. NEUFELD: Did you make any notes at all about--about your conversation with Mr. Matheson that you had with him around the time of this leak?

MR. GOLDBERG: Your Honor, this whole subject is not relevant to the 402 hearing.

THE COURT: Overruled. Overruled.

MS. KESTLER: No, it wasn't important to me to do that.

MR. NEUFELD: Did you have more than one conversation with Greg Matheson about leak or leaks of DNA results in this case?

MS. KESTLER: No.

MR. NEUFELD: Just this one conversation and you don't recall when and where it was?

MS. KESTLER: No.

MR. NEUFELD: Other than a conversation with Gregory Matheson, did you conduct any investigation or inquiry or speak to any other individuals to try and ascertain the source of the leak?

MS. KESTLER: No. I was convinced that it is not in the laboratory, so I wasn't concerned.

MR. NEUFELD: And other than based on a conversation with Greg Matheson and your own feelings, I guess you would have to characterize it, about the people who work for you, is there anything else which was the basis for your conclusion that SID was not involved in this leak?

MR. GOLDBERG: Your Honor, this is not relevant.

THE COURT: Overruled.

MS. KESTLER: No.

MR. NEUFELD: Now, on September 20th of 1994 Gregory Matheson obtained PGM results on the socks in this case. Are you aware of that?

MR. GOLDBERG: That misstates the testimony in evidence in the trial. I think it was the 18th.

MR. NEUFELD: Excuse me, your Honor. At page 254--

THE COURT: Overruled. Overruled.

MR. NEUFELD: Okay.

THE COURT: Are you aware of that?

MS. KESTLER: I am not aware on what date he got the results.

MR. NEUFELD: Now--

MS. KESTLER: It is around that time.

MR. NEUFELD: --Greg Matheson would report directly to you; is that correct?

MS. KESTLER: He reports directly to me. Are you--in what context are you referring?

MR. NEUFELD: Well, generally speaking, first of all, in terms of the hierarchy of personnel at SID, would he report directly to you or would there be anyone between Gregory Matheson and you?

MS. KESTLER: He reports directly to me.

MR. NEUFELD: You said in this particular case, and correct me if I am mistaken, that you would be kept informed by Greg Matheson as results came in dealing with analysis of evidence in this case; is that correct?

MR. GOLDBERG: Asked and answered.

THE COURT: Overruled.

MS. KESTLER: Of anything significant, yes.

MR. NEUFELD: Okay. Well, would you agree that a PGM result on the socks conducted by Gregory Matheson in the serology laboratory suggesting that the bloodstain was consistent with Nicole Simpson Brown would be deemed--I'm sorry, with Nicole Brown Simpson, would be deemed significant in the case?

MS. KESTLER: Yes.

MR. GOLDBERG: Irrelevant.

THE COURT: Overruled.

MR. NEUFELD: And would it be the practice in this case for Mr. Matheson to immediately report to you the results of this PGM testing on the socks shortly after he achieved those results?

MS. KESTLER: Not necessarily immediately, but within a reasonable amount of time, depending on his schedule--

MR. NEUFELD: Well--

MS. KESTLER: --and mine.

MR. NEUFELD: Greg Matheson's office is in the same laboratory as yours, is it not?

THE COURT: This is not particularly interesting, counsel.

MR. NEUFELD: Umm, had Mr. Matheson achieved the PGM results on the socks on September 20th, 1994, would he have presented those results to you shortly thereafter, without putting a specific hour on it?

MR. GOLDBERG: Calls for speculation and conclusion.

THE COURT: Sustained.

MR. NEUFELD: Did you become aware of the PGM results that Mr. Matheson achieved on the socks from Mr. Matheson?

MS. KESTLER: Yes.

MR. NEUFELD: Are you aware that on September 21st, one day after Gregory math achieved the PGM results on the socks, it was reported on KNBC that DNA typing on the socks had reached the conclusion that the blood on the socks was consistent with having come from Nicole Brown Simpson?

MR. GOLDBERG: Assumes facts not in evidence.

THE COURT: Overruled.

MR. GOLDBERG: Also calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: I believe it was the day after. I did hear it. I think it was the day after.

MR. NEUFELD: The day after it was actually aired?

MS. KESTLER: I believe it was the day after I found out, so that would have been the 21st.

MR. NEUFELD: Okay. The day after you found out about the PGM results you mean?

MS. KESTLER: Correct.

MR. NEUFELD: Okay. And so if you found out about the PGM results on September 20th and you learned or you heard on the news this report by Tracie Savage on September 21st that there had been a DNA match on the socks between Nicole Brown Simpson and the blood found on the socks, did you at that point conduct any investigation to see whether or not somebody at SID had been the source of that leak?

MR. GOLDBERG: Not relevant.

THE COURT: Overruled.

MS. KESTLER: I personally did not conduct an investigation. I asked the same two individuals who knew did anyone say anything, but I did not personally conduct an investigation.

MR. NEUFELD: So with regard to the sock leak, it is your testimony that you actually spoke to both Collin Yamauchi and Greg Matheson?

MS. KESTLER: That's correct.

MR. NEUFELD: Did you speak to them together or separately?

MS. KESTLER: I don't recall.

MR. NEUFELD: And when you spoke to Greg Matheson did he tell you who, if anyone, did know about the PGM results?

MR. GOLDBERG: Calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: Umm, he told me one other person in the laboratory knew about it, and as far as everyone else, I made the phone calls, so--

MR. GOLDBERG: Motion to strike; no personal knowledge.

THE COURT: Overruled.

MR. NEUFELD: Who was the one person in the laboratory that Greg Matheson said had knowledge about the PGM results?

MR. GOLDBERG: Calls for hearsay.

THE COURT: Overruled.

MS. KESTLER: He felt that Erin Riley knew about it.

MR. NEUFELD: So other than Greg Matheson and yourself, the only other person who had been told the PGM results at SID was Erin Riley?

MS. KESTLER: No, and Collin.

MR. NEUFELD: Okay. When you spoke to Collin Yamauchi, did you ask Collin Yamauchi any questions about who had access to the PGM results?

MS. KESTLER: Well, no. The results--Mr. Matheson had the results. Collin didn't have the results.

MR. NEUFELD: Okay. Well--I'm sorry, and I apologize if I sound a little bit confused. Did Collin Yamauchi know the PGM results on the socks at any time during September 20th and September 21st?

THE COURT: Sustained. Calls for speculation, counsel.

MR. NEUFELD: After Greg Matheson told you that Erin Riley had also been told about the PGM results, did you have any inquiry of Erin Riley?

MS. KESTLER: Just that she knew about them.

MR. NEUFELD: Did you then talk to or meet with Erin Riley to find out if she shared access to that data with any third party?

MS. KESTLER: She indicated she had not.

MR. NEUFELD: Well, are you saying that you actually spoke with her?

MS. KESTLER: Yes.

MR. NEUFELD: And when did that occur?

MS. KESTLER: I don't know.

MR. NEUFELD: Did you make any notes of that meeting?

MS. KESTLER: No.

MR. NEUFELD: Any notes of your discussions with Gregory Matheson about this leak?

MS. KESTLER: No.

MR. NEUFELD: Based on your investigation, after you learned of the leak and the Tracie Savage--

THE COURT: Counsel, I don't think it is appropriate to refer to it as a leak because it is misinformation. It is not a leak. A leak is something that is in fact correct.

MR. NEUFELD: Your Honor, in all due respect, I think there can be leaks of disinformation as well as leaks of information. Umm, this is something that this would not be the first time something like that happened in other situations.

THE COURT: Well, counsel, I'm the one listening to this.

MR. NEUFELD: I appreciate that.

THE COURT: Proceed. Proceed accordingly.

MR. NEUFELD: Based on your investigation had the results of the--

MR. GOLDBERG: Assumes facts not in evidence, that she conducted any investigation.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Based on whatever inquiries you made after learning the PGM results of September 20th and learning of Tracie Savage's report on KNBC on September 21st, had those results been given to anyone outside SID prior to the time that Tracie Savage aired her story on the news?

MS. KESTLER: Yes.

MR. NEUFELD: All right. And who had that information been given to?

MS. KESTLER: The investigating officer, Tom Lange, and members of the District Attorney's office, Marcia Clark, and I believe Lisa Kahn was in her office with her.

MR. NEUFELD: Were you the person who personally called the District Attorney's office and gave them that information?

MS. KESTLER: Yes, and Mr. Matheson was on another phone in the same room with me; not a speaker phone. We were just on two separate phones.

MR. NEUFELD: Was that information given to Marcia Clark or Lisa Kahn on September 21st or September 20th?

MS. KESTLER: I believe the afternoon of the 20th.

MR. NEUFELD: And you said that the information was also given to certain officers in the police department?

MS. KESTLER: One officer.

MR. NEUFELD: And you a say that was Detective Lange?

MS. KESTLER: That's correct.

MR. NEUFELD: And when was that information given to Detective Lange?

MS. KESTLER: Afternoon of the 20th.

MR. NEUFELD: After the--after your conversation with Miss Clark?

MS. KESTLER: I believe it was before.

MR. NEUFELD: And were you the person who also--was that done by telephone?

MS. KESTLER: Yes.

MR. NEUFELD: You are the person who actually communicated to Detective Lange the results of the PGM test?

MS. KESTLER: Yes.

MR. NEUFELD: After learning of the--of the Tracie Savage story did you make any effort to find out whether individuals who you had given access to that information to, such as Detective Lange, provided access to that data to any third parties?

MR. GOLDBERG: Not relevant.

THE COURT: Overruled.

MS. KESTLER: No. I would have no reason to inquire of them.

MR. NEUFELD: Umm, did you share the PGM results that you obtained from Gregory Matheson with your husband, who is a detective at LAPD?

MS. KESTLER: No.

MR. NEUFELD: Did you share the results of the September 8th report that was faxed to you on September 12th with your husband?

MS. KESTLER: Well, no. 1, it wasn't faxed to me even though I'm on the letterhead. It had to have a cover sheet, transmittal sheet. I never saw that fax until later. And secondly, no, I did not share it with my husband.

MR. NEUFELD: Well, when you say you never saw that fax until later, what do you mean? Later that day or perhaps the next day?

MS. KESTLER: Several days later I think.

MR. NEUFELD: Well, what is the basis for your belief that it was several days later?

MS. KESTLER: Because at some point someone asked me about the Cellmark results, weren't they in, and I went and asked Greg whether we had gotten the Cellmark results and he said yes, just a fax, and he showed me the fax.

MR. NEUFELD: Miss Kestler, at the meeting you had with Mr. Scheck and myself on July 13th, 1995, didn't you tell us that you learned of the September 8th report shortly before you saw the results published in the newspaper?

MS. KESTLER: Well, that could have been shortly before. I don't--I don't think that is when I saw it. I didn't see the results in the newspaper anyway, because I'm sorry, I don't read the L.A. Times, I listen to KFWB so--

MR. NEUFELD: All right. You said that it was shortly before you had learned that some of the results had been published in the newspaper; is that correct?

MR. GOLDBERG: Misstates the testimony.

THE COURT: Overruled.

MS. KESTLER: Around that time.

MR. NEUFELD: Okay. So had the results been published in the newspaper as early as September 15th, then you may have learned about those results as early as September 14th? Would that be fair to say?

MS. KESTLER: That would be fair.

MR. NEUFELD: Do you know who Commander David Gascon is?

MS. KESTLER: Yes.

MR. NEUFELD: And who is he?

MS. KESTLER: He is a commander with the Los Angeles Police Department.

MR. NEUFELD: And do you know what his particular role is at the Los Angeles Police Department?

MR. GOLDBERG: Not relevant.

THE COURT: Is he still a commander?

MS. KESTLER: I believe he has moved up in life.

MR. NEUFELD: Deputy Chief now?

MS. KESTLER: I believe he is a deputy chief.

MR. NEUFELD: Okay. At the time of this--in September of 1994, he was a commander then?

MS. KESTLER: I believe he was still a commander at that time and I believe he was in charge of press relations.

MR. NEUFELD: Okay. And had you had a professional relationship with David Gascon involving other cases in the past?

MS. KESTLER: Very rarely I had spoken to him regarding other cases.

MR. NEUFELD: But you had spoken to him regarding other cases?

MS. KESTLER: Not so much regarding cases. Oftentimes press relations gives us the go ahead to allow tours or allow press personnel to be interviewing us regarding other cases.

MR. NEUFELD: To your knowledge is Commander Gascon, friend of the reporter Tracie Savage, to your knowledge?

THE COURT: Sustained.

MR. WALSH: Objection.

THE COURT: Sustained. Counsel, isn't the issue whether or not she shared any of this information with then Commander Gascon? Isn't that the issue?

MR. NEUFELD: Now, just so we can have a very good clearer sense of this chronology, Miss Kestler, if the PGM result came in on September 20th and Tracie Savage ran a story on September 21st, isn't it true that the socks had not even been sent out yet for DNA testing as of September 21st, 1994?

MR. GOLDBERG: Your Honor, it is argumentative as phrased.

THE COURT: Overruled.

MR. GOLDBERG: It is also compound.

THE COURT: Overruled.

MS. KESTLER: I don't believe they had been sent out as of the 21st.

MR. NEUFELD: In fact, wasn't there a meeting held on September 23rd at SID at which time a decision was made to send the socks out for testing, for DNA testing?

MS. KESTLER: My understanding was that--or my feeling was, when speaking to Mr. Matheson on the 20th, that we were going to send them out for DNA; it was just a question of where and to--and what testing specifically--specifically what DNA testing would be done, and I don't recall the meeting you are referring to.

MR. NEUFELD: But you recall that there was some meeting held--

MR. GOLDBERG: Your Honor, this isn't relevant.

THE COURT: Overruled.

MR. NEUFELD: Let me just show you a page.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: May I approach the witness?

THE COURT: Mr. Neufeld, you have two more minutes, so use your time accordingly.

MR. NEUFELD: Well--

MR. NEUFELD: Miss Kestler, other than any inquiries that you made, are you aware that there was an internal affairs investigation into the source of leaks of DNA reports in this case?

MS. KESTLER: I am aware only because I was interviewed.

MR. NEUFELD: And who interviewed you?

MR. GOLDBERG: Calls for privileged information, your Honor.

THE COURT: Who interviewed you?

MR. GOLDBERG: Yes.

THE COURT: Overruled.

MS. KESTLER: I believe his name--oh, I hate to even suggest because I'm not sure I remember who it was. I could make a guess.

MR. NEUFELD: Okay. Don't guess. Approximately when did this interview take place?

MS. KESTLER: That is another one I can't remember. It seems to me it was in the fall some time.

MR. NEUFELD: And, to your knowledge did Internal Affairs Division conclude the investigation into this matter?

MR. WALSH: Objection, calls for confidential information.

THE COURT: Sustained.

MR. NEUFELD: Was your interview by internal affairs into the leak issue transcribed, either with a tape--either by a reporter or by a tape recorder?

MS. KESTLER: It was tape-recorded.

MR. NEUFELD: One moment, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Miss Kestler, do you know Tracie Savage?

MS. KESTLER: No.

MR. NEUFELD: You never met her?

MS. KESTLER: No.

MR. NEUFELD: Have you ever spoken to her on the phone?

MS. KESTLER: No.

MR. NEUFELD: Have you been the source of any information that have appeared in the newspapers or the press or television or radio about this case?

MS. KESTLER: Absolutely not.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Did you give the information to David Gascon?

MS. KESTLER: No.

MR. NEUFELD: Based on your own investigation as the head of the SID laboratory, have you learned whether anyone else gave this information to David Gascon?

MR. GOLDBERG: Assumes facts not in evidence, that she conducted an investigation.

THE COURT: Sustained.

MR. NEUFELD: One moment, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Your Honor, there is just--I would ask that the witness provide at her earliest convenience, and I will finish my examination now, with the name of the individual at SID who did examiner her. And secondly, your Honor, once we obtain the SID report I would ask that she be allowed to be recalled--I'm sorry--I'm sorry, internal affairs report, that we be permitted to recall her to continue the examination.

THE COURT: You are not finished?

MR. NEUFELD: I'm finished. That one condition, that's all.

THE COURT: All right. All right. Miss Kestler, if you would, would you make inquiry as to who the detective or sergeant was from IAD who interviewed you and provide that information to Mr. Walsh. Mr. Walsh, will you provide that information to us, please?

MR. WALSH: Yes, I will.

THE COURT: All right. Miss Kestler, you are excused subject to recall.

MR. GOLDBERG: Your Honor, I just ask one question if I may?

THE COURT: One question.

CROSS-EXAMINATION BY MR. GOLDBERG

MR. GOLDBERG: With respect to the September 8th, 1994, report that you have been questioned about, do you have a specific recollection today whether you first saw this before the news report, the day of the news report or after the news report?

MS. KESTLER: No, I don't have an absolute recollection.

MR. GOLDBERG: Thank you. Nothing further.

THE COURT: All right. Thank you, Miss Kestler.

MS. KESTLER: Thank you.

THE COURT: All right. We will take a ten-minute recess, bring the jury down and we will conclude Professor MacDonell testimony.

(Recess.)

THE COURT: Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, anything we need to take up before we invite the jury to rejoin us?

MR. NEUFELD: Just one scheduling matter, your Honor. I was contacted by Mr. Scheck and they filed a motion regarding the contamination studies being done by Dr. Gerdes. Could that be heard at five o'clock this afternoon? I think Dr. Gerdes is scheduled to testify tomorrow.

THE COURT: Are the lawyers available who are going to be arguing that issue? We may be able to get to it earlier than five o'clock.

MR. NEUFELD: All right, fine, three o'clock or four o'clock or whatever, but I would only ask that we do it after the Bosco matter only because Mr. Scheck needs the time, so I would just ask that it be the last order of business.

THE COURT: I think we can accommodate that this afternoon.

MR. NEUFELD: Because Mr. Scheck isn't here.

THE COURT: He is not here?

MR. NEUFELD: He is in Los Angeles; he is not in the building, and I'm saying I would like it to be the end of the day.

THE COURT: Miss Clark.

MS. CLARK: I believe Mr. Clarke is here. I would just like to make sure before I commit.

THE COURT: All right. Well, don't go away. I need to finish one other matter: There were two matters that had not been resolved at the end of court yesterday. There was a request for sanctions by the Defense and an instruction to the jury regarding the dispute over Mr. MacDonell's notes regarding the examination that was conducted on April the 2nd. I'm going to instruct the jury as follows when they return: "During the course of yesterday's cross-examination of Mr. MacDonell it was suggested that Mr. MacDonell's notes concerning the examination he conducted an April the 2nd, 1995, had not been turned over to the Prosecution. These notes were in fact turned over to the Prosecution on July the 17th, 1995. You shall therefore disregard any negative inference implied by the suggestion." All right. As to the request for sanctions regarding violation of the Court's direction that any use of transcripts--that a side bar be requested before transcripts are used, the court reporters have not provided me with the transcript, and I lost it on my computer yesterday, so I will take that under advisement because I have not reviewed the transcript. All right. Deputy Magnera, let's have the jurors, please.

MS. CLARK: Your Honor, Mr. Goldberg, when we have our next break, would like to address the Court concerning the letter forwarded to the Court. There were discovery violations by counsel that we had raised with the Court that had not been resolved, and Mr. Goldberg forwarded the letter to the Court concerning those violations. I don't know when the Court--I think that perhaps before the jury is instructed, as the Court proposes, that the Court would need to hear from Mr. Goldberg about this, because it does bear directly on the Defense right.

THE COURT: No. The issue was whether or not the notes had been provided to you previously. The issue of sanctions for discovery is something completely different. It is a different subject. All right. Let's have the jurors, please.

(Brief pause.)

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

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: Ladies and gentlemen, during the course of yesterday's cross-examination of Mr. MacDonell it was suggested that Mr. MacDonell's notes concerning the examining he conducted on April the 2nd, 1995, it was suggested that those notes had not been turned over to the Prosecution. These notes had in fact been turned over to the Prosecution on July the 17th, 1995. You shall therefore ignore the negative inference implied by that suggestion. All right. Mr. MacDonell, would you resume the witness stand, please.

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

THE COURT: Mrs. Robertson, are we--

THE CLERK: Yes.

THE COURT: Thank you. Good morning again, Mr. MacDonell.

PROF. MACDONELL: Good morning.

THE COURT: Sir, you are reminded that you are still under oath. And Miss Clark, you may conclude your cross-examination.

MS. CLARK: Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION (RESUMED) BY MS. CLARK

MS. CLARK: Good morning, Mr. MacDonell.

PROF. MACDONELL: Good morning, Mrs. Clark.

MS. CLARK: Now, you stated, sir, that you were the director of a crime lab, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And you still are?

PROF. MACDONELL: Yes.

MS. CLARK: And that is the crime lab that you own and operate; is that correct, sir?

PROF. MACDONELL: That's correct.

MS. CLARK: How is your commute?

PROF. MACDONELL: I commute by going from the upper level to the lower level. We either have the laboratory in the lower level and the--live in the upper level of the laboratory or the laboratory is in the lower level of the home, either way.

MS. CLARK: So your laboratory is in the lower level of your home; is that correct, sir?

PROF. MACDONELL: That's correct.

MS. CLARK: And that is a profit-making business, isn't it?

PROF. MACDONELL: It is supposed to.

MS. CLARK: Hopefully.

PROF. MACDONELL: Sometimes it isn't.

MS. CLARK: But isn't that where you derive most of your income, sir, from the laboratory?

PROF. MACDONELL: Yes. Directly or indirectly, yes.

MS. CLARK: And you have had how many employees working for you, sir?

PROF. MACDONELL: At the current time I have one full-time and other people come in from time to time as needed. I have had as many as nine part-time people at one time.

MS. CLARK: But as far as regularly employed people that work for on a full-time basis, it is one; is that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: So on a full-time basis, the lab consists of yourself and one other person?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, sir, in your lab do you have a dark room?

PROF. MACDONELL: We have two dark rooms, yes.

MS. CLARK: Two dark rooms. You are an accomplished photographer, are you not, sir?

PROF. MACDONELL: I would say yes. I taught forensic photography and had two photo studios, yes.

MS. CLARK: And would you consider photography to be a key aspect of your job?

PROF. MACDONELL: Absolutely.

MS. CLARK: And do you feel that that is a very important aspect of the talents that you have, sir, your ability to photograph forensically?

PROF. MACDONELL: Well, it is extremely important to document certain things. Sometimes photographs are not needed, but it is certainly a very important asset to be able to take good photographs.

MS. CLARK: As a matter of fact, sir, when you don't take notes contemporaneously with an observation, if you do take photographs, that will document what you see; isn't that correct?

PROF. MACDONELL: Mostly it will, yes.

MS. CLARK: Now, in this particular case, sir, on April the 2nd, 1995, who was directing the photography of the sock?

PROF. MACDONELL: Basically Dr. Lee was, but we alternated, we looked at different areas in the microscope, and I believe he actually took the photographs, but we both saw what it was prior to it being photographed.

MS. CLARK: Now, in this case you have told us about six or seven of those little balls, only one of which was brought into court in the form of a photograph, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You did not direct that any other photographs be taken of the other little balls; is that correct?

PROF. MACDONELL: No. Actually I didn't know how many photographs Dr. Lee took. This is the one that I have seen most often and I think it is an excellent photograph to show what we saw.

MS. CLARK: But you did not direct that the other little balls that you are now describing verbally to the jury be depicted in a photograph so that they could see it as well?

PROF. MACDONELL: That is correct.

MS. CLARK: And in your judgment, sir, in your opinion wouldn't it have been appropriate or a good idea to take pictures of all of those little balls so the jury could see them all?

PROF. MACDONELL: I don't believe so. We described them. They were there and one that was representative and perhaps showed the bonding of the--not only the red material that dried to a fiber, but the fiber being bonded to a thread, I think that was the best one this we could use as an example.

MS. CLARK: Nevertheless, sir, the six or seven little balls that you have described is a key aspect of your testimony, wouldn't you agree?

PROF. MACDONELL: No. I think that is just making the same point six or seven times over.

MS. CLARK: You don't think that it would be important to let the jury see everything that you saw on April the 2nd, 1995?

MR. NEUFELD: Objection, argumentative.

THE COURT: Sustained.

MS. CLARK: Let me ask you this, sir: It was Dr. Lee that directed the photograph be taken that was brought into court of that little ball on the fiber?

PROF. MACDONELL: Yes. Collectively we both looked at it and he said "This is one we should photograph" and he did.

MS. CLARK: In your judgment, sir, you are an expert in blood spatter analysis, are you not?

PROF. MACDONELL: Interpretation.

MS. CLARK: Interpretation, excuse me. And in your judgment, sir, who is the more qualified expert in blood spatter analysis, yourself or Dr. Lee?

PROF. MACDONELL: I think that is an unfair question. I would not rate Dr. Lee in any way. We have worked on many cases together and been on many seminars teaching the subject of bloodstain pattern interpretation. I have never given him any examination and he has never given me one. I would say he is imminently qualified and I would like to believe I am.

MS. CLARK: Would you say, sir, that you are both equally qualified?

PROF. MACDONELL: I think that is a fair statement, yes.

MS. CLARK: Wouldn't you say you also had equal say in which photographs were to be taken to document the observations that you made on April 2nd?

PROF. MACDONELL: That is true.

MS. CLARK: And you did not direct that any additional photographs be taken of the one that was presented in court today of that one little ball?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, you did not write, when you said notes the other day that you had taken, those notes contain no description of the little balls that you have come here to testify to; is that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: Nor does the report you wrote on July 11th contain any description of the little balls that you have testified to here in court; isn't that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, if as a scientist, sir, you are supposed to document everything that you see contemporaneous with the observation, and photography is one way of doing that. Wouldn't it have been very important, in view of the fact that you made no notes at the time of your observation, to take photographs of all of it, if only to refresh your own memory as to what you saw?

PROF. MACDONELL: In this case it wasn't necessary. I can remember those spots that I saw very distinctly and I knew that photographs were being taken and I could see no point in writing down a note that says I'm looking at little red balls. I remember them very well.

MS. CLARK: Well, sir, isn't it true that in your report you wrote that the outer stain was a swipe, correct?

PROF. MACDONELL: Correct.

MR. NEUFELD: Objection, asked and answered. Excuse me. Asked and answered several times.

THE COURT: Overruled.

MS. CLARK: And then you testified, I believe yesterday, that you looked at photographs and based on your reexamination of the photographs determined that in fact it was a compression and so testified? Do you recall that, sir?

PROF. MACDONELL: Yes, I do.

MS. CLARK: In that regard then, sir, having had the photographs to review, you actually changed your opinion as to the appearance of a stain from swipe to compression; isn't that true?

MR. NEUFELD: Objection. We have been over this several times yesterday.

THE COURT: Overruled. It is a new point, counsel.

PROF. MACDONELL: I did not change my opinion. I changed my characterization. If you want to use swipe or compression, they are basically the same thing. The difference is a slight marginal variation and that is all.

MS. CLARK: If the difference is a slight marginal variation, sir, why did you not say that during direct examination when you were making the point to the jury that in your opinion this was a compression and not a--

THE COURT: Sustained. Sustained.

MS. CLARK: Nevertheless, sir, your documentation of the appearance of the outer stain was what led you to make a different characterization of the appearance of that stain; is that correct?

PROF. MACDONELL: It is not a different characterization. It is simply an adjective adding swipe makes it a little bit more on one side than another. Depending upon which photograph I look at, I could use either term. There is really no difference between them as far as that particular stain is concerned.

MS. CLARK: Did you know--

PROF. MACDONELL: Any term you like I will agree with.

MS. CLARK: Would you agree at this point, sir, it could be a swipe, it could be a compression and it really makes no difference? Is that your testimony?

PROF. MACDONELL: That is correct.

MS. CLARK: Nevertheless, it was the presence and the use of the photographs that you took to document your observations at the time of the examination that caused you to take a step farther away from swipe and testify that it was compression, was it not?

PROF. MACDONELL: No.

MS. CLARK: Then what was it, sir, that changed your mind from the time you wrote your report indicating it was a swipe to the time you testified and indicated on direct examination it was a compression?

PROF. MACDONELL: It was a photograph Dr. Lee took.

MS. CLARK: The photograph Dr. Lee took. And there are no other photographs than the one to document your observation of the little balls than the one little ball you brought into court today--yesterday; is that correct?

MR. NEUFELD: Objection. Asked and answered now many times.

THE COURT: Overruled. Last question on this line.

PROF. MACDONELL: That is correct.

MS. CLARK: Now, sir, if you and Dr. Lee are of equal stature in the field of blood spatter interpretation, what was your role there? Why do we need two? Why did you need to have two people present to examine the sock?

THE COURT: Sustained. Sustained.

MS. CLARK: Can you tell us what your role was--strike that. Dr. Lee, in your opinion, is as qualified as you are in blood spatter interpretation, correct?

PROF. MACDONELL: Yes, I would say that.

MS. CLARK: And he was examining that sock under the microscope along with you, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And he was directing what photographs should be taken; is that correct?

PROF. MACDONELL: We were deciding between ourselves which photographs should be taken; he merely took them.

MS. CLARK: Okay. Then can you tell us, sir, for what--what was your role in the examination on April 2nd if the two of you were owe equally qualified looking at that same pair of socks?

MR. NEUFELD: Objection, argumentative and irrelevant.

THE COURT: Overruled.

PROF. MACDONELL: I was there at the request of attorneys to conduct an examination with Dr. Lee. I have no idea why they asked for two. They might have asked for three, but that is not something that I am privy to. I don't know why they asked for two.

MS. CLARK: All right. Your lab--your work is not monitored by any independent agency; is that correct?

PROF. MACDONELL: Not that I am aware of, no.

MS. CLARK: And I think that you agree, sir, that the only check or balance for quality assurance on your work is that an opposing side may read your report of your conclusions and disagree?

MR. NEUFELD: Objection, your Honor, argumentative.

THE COURT: Overruled.

PROF. MACDONELL: Well, they may read my report and they may disagree or they may agree with me. They don't disagree by reading the report. It depends upon what they feel.

MS. CLARK: I'm sorry.

(Brief pause.)

MS. CLARK: Right, but the only check or balance for quality assurance that you have, sir, is when the other side reads your report? They may agree or disagree, but that is your check or balance, correct?

PROF. MACDONELL: You could call it that, yes.

MS. CLARK: There are no validation studies administered to you by outside agencies; is that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: No blind studies are administered to your laboratory by another agency or organization; is that correct?

PROF. MACDONELL: Not by other agencies, correct.

MS. CLARK: And unlike Cellmark where they have in-house blind studies to test their quality control or the accuracy of their testing methods and results, you have no such blind?

MR. NEUFELD: Objection, assuming facts not in evidence.

THE COURT: Overruled.

MR. NEUFELD: And argumentative.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Sir, have you heard testimony from a representative of Cellmark that they do conduct blind studies of their own testing procedures and methods to make sure that their quality control is kept up?

MR. NEUFELD: Objection, irrelevant and also--

THE COURT: Sustained.

MR. NEUFELD: Okay.

MS. CLARK: Do you have any blind studies that you conduct, sir, within your laboratory, for purposes of quality control?

PROF. MACDONELL: Yes.

MS. CLARK: And what is that blind study that you conduct?

PROF. MACDONELL: I prepare samples or we receive evidence, actual evidence, and Mr. Kish and I review it independently and that would be, in my opinion, a blind test. If we agree, then we have conducted a verification of each other's ability to arrive at the same conclusion.

MS. CLARK: And if you disagree do you publish the results, sir?

PROF. MACDONELL: I can't remember when we have disagreed.

MS. CLARK: So you have always agreed with each other?

PROF. MACDONELL: On evidence matter, interpreting bloodstain matters, we discuss it and we agree, yes.

MS. CLARK: So if you always agree with each other, sir, it is only between the two of you working together; is that correct?

PROF. MACDONELL: Yes.

MS. CLARK: So if you always agree, do you consider that to a blind study that is a check on your quality control?

PROF. MACDONELL: I sure do. I don't know what he is going to say and he doesn't know what I am going to say. That is blind.

MS. CLARK: I'm sorry?

PROF. MACDONELL: That is a blind study.

MS. CLARK: If you should disagree, there is no record kept of that so anyone would know?

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: You keep no records of the time you agree or disagree; is that correct?

MR. NEUFELD: Objection. It assumes facts not in evidence. He already testified that he disagreed.

THE COURT: Counsel, you are getting close there. Sustained. Proceed.

MS. CLARK: How many years have you been working with Mr. Kish, sir?

PROF. MACDONELL: Well, actually he works with me. I would say I think six or seven, something like that. He has assisted me with many bloodstain institutes, so I could go back and see the first one he helped me with. I think it was about six or seven years ago.

MS. CLARK: Is he on your payroll, sir?

PROF. MACDONELL: Yes, he is.

MS. CLARK: And you pay his--is it a regular salary that you pay him or is it case by case?

PROF. MACDONELL: It varies. It is a regular salary, but because I'm letting him do more and more cases independent of myself and somewhat semi-retirement, you might say, I really do not have any financial control over some of his cases. Some of them I do. If they come to me and I assign them to him and he works on them, then he receives a substantial amount of the fee.

MS. CLARK: Okay. So he is dependent on you for his livelihood; is that correct, sir?

PROF. MACDONELL: Yes.

MS. CLARK: And he is the one who is your check or balance as to whether or not you have made a correct interpretation or not; is that right?

PROF. MACDONELL: Yes, you could say that.

MS. CLARK: Is there any licensing required for your lab, sir?

PROF. MACDONELL: No.

MS. CLARK: Or monitoring of your lab by an independent agency?

PROF. MACDONELL: Not monitoring as such, but I was a member of the be New York state crime laboratory advisory committee for many years and there are fourteen laboratories in New York state of which my laboratory was one and that was a discussion group more than certification or anything of that nature.

MS. CLARK: Right. Your lab is not certified by any agency; is that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: And the group that you just spoke of does not monitor your lab for appropriate operating methods or procedures, does it?

PROF. MACDONELL: No, it does not.

MS. CLARK: And there are no requirements that you personally be tested at any time to prove that you are using a approved method in your analysis of cases; isn't that correct, sir?

PROF. MACDONELL: Nothing other than cross-examination such as this.

MS. CLARK: And that would depend on how closely you were cross-examined; is that correct?

PROF. MACDONELL: How detailed.

MR. NEUFELD: Objection, assumes a fact that is not in evidence.

THE COURT: Overruled.

PROF. MACDONELL: How detailed; not closeness.

MS. CLARK: Okay. I will agree with you. How detailed the cross-examination is; is that correct, sir?

PROF. MACDONELL: Yes.

MS. CLARK: And if the cross-examiner knows virtually nothing about bloodstain pattern interpretation, then the cross-examination would not be very detailed at all, wouldn't you agree?

MR. NEUFELD: Your Honor, speculation. It is irrelevant.

THE COURT: Overruled.

PROF. MACDONELL: Well, it is difficult to say how much an attorney knows about bloodstain pattern interpretation. I have had several attorneys attend the institute and I would like to think that those attorneys could do a very good job. As yet I have never been cross-examined by one of my former students, so I really don't know, but the more they know, the better job they can do and it helps me a great deal because they don't ask questions which might seem logical but are scientifically incorrect.

MS. CLARK: Nevertheless, sir, the degree to which you are tested by cross-examination, since that is the only means of your being tested for your current knowledge of the state of the art--

MR. NEUFELD: Objection, your Honor. That is not his testimony.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: You indicated that the only way by which you are tested to prove--to show that you are using approved methods or sound methods of analysis is by the nature of the cross-examination; is that correct?

PROF. MACDONELL: Well, I would use the word "Challenged" rather than "Tested," but yes, that is correct.

MS. CLARK: In which case you are only as challenged as the cross-examiner is effective; isn't that correct?

PROF. MACDONELL: Or as they wish to be. They may decide not to ask many questions if they feel it will not be to their advantage. I can't read their minds.

THE COURT: All right. Let's move on.

MS. CLARK: All right. Now, if the other side, whatever side that may be, disagrees with your opinion or your conclusion, does that give you some indication, sir, that your view may be in error?

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained.

MS. CLARK: Sir, do you believe that you can make mistakes?

PROF. MACDONELL: Certainly.

MS. CLARK: And do you think that--have you ever drawn the conclusion that you have made a mistake based on the opposing side disagreement with your conclusion?

PROF. MACDONELL: No, that is not the kind of mistake I'm referring to.

MS. CLARK: Well, what kind of mistake are you referring to, sir?

PROF. MACDONELL: Well, I made a mistake yesterday when I had the redeye last night. That is a mistake.

MS. CLARK: I'm sorry?

PROF. MACDONELL: I couldn't get my airline reservation last night because I'm here today and it was a mistake telling me wife I would be home this morning at ten o'clock. That was a mistake.

MS. CLARK: Well, sir, I'm talking about your work. Has it ever occurred that another--the other side has disagreed with your conclusion and that that disagreement has caused you to reexamine your position and determine that you have made a mistake?

PROF. MACDONELL: No.

MS. CLARK: And yet you have testified that the only check or balance quality control, if you will, on your work is when the opposing side disagrees with you?

PROF. MACDONELL: That is correct.

MS. CLARK: And yet when they do disagree with you that does not cause you to reexamine your work and possibly conclude you made a mistake?

PROF. MACDONELL: I reexamine the things that they may have brought up and confirm that in my opinion I was correct. I agree that anyone can disagree with me. That is their prerogative.

MS. CLARK: May we approach, your Honor?

THE COURT: Yes. With the court reporter.

(The following proceedings were held at the bench:)

MR. DARDEN: Before we do that, your Honor, Mr. Clarke will be available after the lunch hour.

THE COURT: Okay.

MR. DARDEN: He will be available this afternoon on the Gerdes motion.

THE COURT: All right.

MS. CLARK: Life magazine article, your Honor. I have a copy of it coming to counsel now.

(Brief pause.)

MR. NEUFELD: Why don't you cut to the chase and tell us what you are going to use it on?

MS. CLARK: Sure, sure. Right here, (indicating). "I'm in the business of giving hope to the hopeless. No one can contradict me. I have to be very, very careful."

(Brief pause.)

THE COURT: I'm trying to read it, counsel.

MR. NEUFELD: I'm sorry.

MS. CLARK: And then, your Honor, it goes on to the bottom paragraph as well, (indicating).

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

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Miss Clark, which quotes did you want to use?

MS. CLARK: "I'm in the business of giving hope to the hopeless and since nobody in the world can contradict me, I have to be very, very careful," and then down here, (indicating), "I don't want to say I'm anti-jury, I'm just anti that jury. I have no faith in the jury system left. I only want a judgment. I do my naughty things and I'm thinking of doing twelve of them right now," and that is in response to the jury verdict in the Jean Harris case where the Defendant was, that she accidentally shot, Dr. Scarpetta--not Scarpetta.

THE COURT: Shoenhower?

MR. NEUFELD: Hitanower, T-A-N-O-W-E-R.

THE COURT: T-A-R-N-O-W-E-R.

MS. CLARK: Tarnower, that is it, and the jury rejected his opinion and voted guilty of murder and his response to their rejection of his theory on his testimony to support their theory that it was an accident, because the crime scene reconstruction was important to that theory, was, you know, the heck with juries.

MR. NEUFELD: All right. His opinion about jury systems and about a particular jury trial he was involved in has absolutely no relevance to his impeachment in this case at all, your Honor. His reaction--and the fact a jury disagreed with him and obtained a verdict has no relevance to how a jury in this case should treat his expert testimony. We would never--we had a situation, your Honor, where you could impeach an expert witness by showing that in the another case where he offered expert testimony the jury returned a contrary verdict, it is irrelevant. It is irrelevant, it is immaterial and certainly under 352 its prejudicial impact would certainly outweigh any probative value. His anger or resentment and what a jury did in another case is simply being offered here to try and poison this jury toward him to show that he disliked any particular jury. It has no relevance to the cross-examination here. As to the other quote--

MR. DARDEN: The volume is too loud.

MR. NEUFELD: Sorry. As to another quote, your Honor, where it says, "I'm in the business of giving hope to the hopeless," I actually know that he is not the author of that quote, that even though it appears in quotation marks, it is actually a quote that was taken from a Prosecutor who had retained him. And I have discussed this quote with him in the past and he has proof, which we can--I can produce to the Court, in fact, that will show that he is not the source of this quote, that the quote was actually made by a Prosecutor who had retained him.

THE COURT: How do you know that?

MR. NEUFELD: Because we have a quote by the Prosecutor at a date prior in time to this article where he talks about, you know, that "I'm in the business of"--not MacDonell--Prosecutor talks about giving hope to the hopeless, and that is what MacDonell can do for me.

MS. CLARK: What about the part "No one can contradict me"? That doesn't sound like a Prosecutor said that.

MR. NEUFELD: I didn't ask him about that. I can't make a representation about that, your Honor. I think this other thing at the bottom is just clearly prejudicial and absolutely no probative value.

MS. CLARK: May I be heard?

THE COURT: Yes.

MS. CLARK: With respect to the bottom paragraph, your Honor, this goes to the witness' attitude, bias and credibility directly. He has asserted that there is no check or balance on him.

THE COURT: All right. Counsel, here is the problem with that, though. Then we have to go in the facts and circumstances as to why he disagrees with the Jean Harris jury.

MS. CLARK: I really disagree, your Honor, and he has been cross-examined on this before and it certainly didn't take more than two minutes. It is a very simple thing. The jury came back with murder. He testified in support of an accidental shooting. That is it. And he thinks the jury is wrong period. I mean, this doesn't go very far. That is about two questions.

THE COURT: All right. That is--

MS. CLARK: That is all it takes. I don't see a 352 issue there. But certainly when a man says that the only thing that is a check or balance is a disagreement from the opposing side, especially from the jury, the fact that he ultimately rejects everything, I think it is very had probative for this jury to assess his credibility.

MR. NEUFELD: Under 352 we will take up a lot of time. We will relitigate the Jean Harris case. He will come forward and bring out all the evidence that supports his position. It is absurdity and is really not relevant here.

THE COURT: All right.

MS. CLARK: Your Honor, I would like to show the Court the transcript in the Briggs case where he was confronted with this article before and the question and the answer couldn't have taken more than three minutes.

MR. NEUFELD: The lawyer who called him didn't do a proper job.

MS. CLARK: There is no 352 issue with respect to this. He has his view. And if counsel wants to bring out on redirect that his view is different than the jury's, this is not going to require relitigation. This goes to his attitude; not the proof of the matter asserted.

MR. NEUFELD: Just--

THE COURT: Hold on. I agree with you, it does go to his attitude and it says a lot. The problem is I'm not going to relitigate the Jean Harris case. The 352 to the "Twelve naughty things" is sustained. The objection is overruled to the "Hopeless" business.

MR. NEUFELD: Okay.

(The following proceedings were held in open court:)

MS. CLARK: May I have a moment, your Honor?

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

MS. CLARK: All right. Mr. MacDonell, you indicated, did you not, that you have been paid 10,500 for your work thus far?

PROF. MACDONELL: That is correct.

MS. CLARK: And how much are you paid per day to testify?

PROF. MACDONELL: Ordinarily if I am out of the laboratory for a day overnight I charge $3,000, but in a case of this type where I have traveled so many times and been away from the laboratory so many hours, I cannot charge a rate like that. I really don't know how much time I will charge for. I do not charge on a hourly rate when I've spent this much time. I will charge a fair rate for the amount of time and effort I have put into case.

MS. CLARK: All right. You, as of April 2nd, 1995, had been paid $10,500; is that correct?

PROF. MACDONELL: That includes some travel expenses and my associate and other things. That is not just a basic profit so to speak.

MS. CLARK: And that was up to the point of your examination of April 2nd, 1995, that you had been paid 10,500; is that correct, sir?

PROF. MACDONELL: I believe so, yes.

MS. CLARK: And since that time have you submitted any further bills?

PROF. MACDONELL: No. I haven't had time.

MS. CLARK: And you have done further work, though, nevertheless, have you not?

PROF. MACDONELL: Yes, I have.

MS. CLARK: You have done several day's worth of work, would that be fair to state?

PROF. MACDONELL: Yes, and I have been here three times I think since then.

MS. CLARK: And you have been here for the purpose of your testimony how many days now?

PROF. MACDONELL: I would say maybe ten days, eight or ten days, very close to that. I can look it up. I was here from the 7th to the 12th, the 16th to the 20th, the 25th to the 28th and I'm here again, so that would be--

MS. CLARK: I'm sorry, sir. 7th to the 12th of July?

PROF. MACDONELL: Excuse me. That is--that was another meeting. That was in Philadelphia. I came the 16th to the 20th. That would be five days, and the 25th to the 28th, four days, and I've been here two days, so that would be eleven days.

MS. CLARK: All right. And ordinarily in the average case you charge 3000 a day?

PROF. MACDONELL: That is correct.

MS. CLARK: So if you were to charge--

PROF. MACDONELL: That is to stay overnight. That would be two days.

MS. CLARK: All right. And in this case you have eleven days down, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: So if this were your average case, you would have charged 33--this is terrible. This is terrible. Roughly $18,000 for your work thus far if it had been the average case, correct?

PROF. MACDONELL: No.

MR. NEUFELD: Objection.

PROF. MACDONELL: It would have been several--

THE COURT: Wait, wait, wait. Mr. Fairtlough, keep your voice down. If I can hear you, it is way too loud.

MR. FAIRTLOUGH: Yes, your Honor.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: If you were charging your average fee in the average case at $3,000 per day after eleven days being present, how much would that be?

MR. NEUFELD: Objection.

THE COURT: Sustained. He said he is not going to bill on his normal schedule.

MS. CLARK: How do you intend to bill, sir?

PROF. MACDONELL: I'm not really sure. I must confess I have never had a case that has been of this type. I will be fair and not do anything that will cost more money. I've saved the Defense considerable money by using golden opportunities, air flights booked at $300.00 a trip instead of the first two were $1409 a ticket. I think I've saved them $3300 on that alone. I'm not trying to make a profit, just a reasonable wage.

MS. CLARK: Your Honor, there would be an objection, motion to strike as nonresponsive.

THE COURT: Overruled.

MS. CLARK: Mr. MacDonell, I'm attempting to ask you now what you intend to bill the Defense. Can you answer that question, sir?

PROF. MACDONELL: Not at this point.

MS. CLARK: Do you intend to bill them at fifty percent of your normal rate?

MR. NEUFELD: Objection. Asked and answered, your Honor.

THE COURT: Overruled.

PROF. MACDONELL: I really don't know. I have never had a case like his. I will be fair and charge them what I think the amount of time I put in would have been had I been in my laboratory. I do not charge a rate everyday because I don't spend eight hours a day.

MS. CLARK: Mr. MacDonell are you attempting to convey to this jury that you are not in this for the money?

THE COURT: Sustained.

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained.

MS. CLARK: You do intend to make a profit on your work in this case, do you not?

PROF. MACDONELL: I hope so yes.

MS. CLARK: Since you have spent at least eleven days since April 2nd of 1995, you do intend to make more money than the 10,500 you have already been paid; isn't that correct?

PROF. MACDONELL: I really don't know until I have sat down and assessed the time I have spent. I would say that is an approximation that might be accurate, but I do not wish to limit my bill by stating in court what I'm going to charge. I have done that before and that is all the attorney would pay me because under oath I said I'm going to charge $400.00 more and it turned out to be 550 or something and they wouldn't pay me the extra 150, so that is why I say I will be fair, but I don't want to commit myself to something and then find out I have to live with it and feel I didn't get a fair price.

MS. CLARK: All right. Do you feel that you will bill at least 10,000 more for the services you have rendered?

MR. NEUFELD: Objection, asked and answered. He said he--

THE COURT: Overruled.

PROF. MACDONELL: As far as the amount of expenses go on top of what I have done, I would say that is approximately close.

MS. CLARK: To the minimum that you will bill?

PROF. MACDONELL: It might exceed it. I don't know.

THE COURT: All right. Let's move on.

MS. CLARK: Sir, you indicated that you are a New York state crime lab board member?

PROF. MACDONELL: I was.

MS. CLARK: For the advisory committee?

PROF. MACDONELL: I was, yes.

MS. CLARK: Isn't it true, sir, that you last attended a meeting of that advisory committee in 1982?

PROF. MACDONELL: That is probably right. They quit sending me the notices of the meeting and so I couldn't go.

MS. CLARK: And you were not involved in quality control; isn't that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, at this point, sir, with the one photograph of the one ball that you have shown us, at this point all we have is your memory and your testimony to rely upon for the appearance of all the other little balls, the six or seven that you have seen; is that correct?

MR. NEUFELD: Objection, argumentative and asked and answered this subject six times.

THE COURT: Sustained.

MS. CLARK: May we approach, your Honor?

THE COURT: Proceed.

MS. CLARK: No, not on the question. May we approach?

THE COURT: Yes.

(The following proceedings were held at the bench:)

MS. CLARK: Counsel's repeated speaking objections which have been very loud and very vociferous have gone unchecked by the Court thus far, although the Court has warned counsel.

THE COURT: I warned him in front of the jury. This is a pretty severe sanction, I think.

MS. CLARK: And the People are asking that counsel be admonished to refrain from these speaking objections. I think it is very unfair. I think it is deliberately disruptive. It has required us to step back and regroup a number of times and that is why the "Asked and answered" objections are particularly unfair when we are being precluded from getting the answer because of counsel's repeated speaking objections which are lengthy and loud.

THE COURT: All right. Your request is considered. I have already admonished Mr. Neufeld to--regarding his objections.

MR. NEUFELD: Your Honor, guidance on one thing because she is raising an issue in point. Am I not allowed to say, "Objection, hearsay" or "Objection, asked and answered"? Am I only allowed to say "Objection"?

THE COURT: You are allowed to state the legal grounds.

MR. NEUFELD: Is "Asked and answered" a legal ground? That is all I'm asking. I won't do it again.

THE COURT: It is in the common parlance here, although it is not technically asked.

MS. CLARK: It is "Asked and answered six times now" and "How many times do we have to go over this?"

THE COURT: I know. I've already admonished him once in front of the jury, Miss Clark. That is a pretty severe sanction.

MR. NEUFELD: Okay.

MS. CLARK: It is one the People have suffered a number of times.

THE COURT: Yes, it is.

(The following proceedings were held in open court:)

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

MS. CLARK: At this point, in view of the fact that we have no photograph of the six or seven other little balls, we have only your testimony to rely on; is that correct, sir?

MR. NEUFELD: Objection, argumentative, asked and answered.

THE COURT: Overruled. Sustained.

MS. CLARK: I didn't get an answer last time.

THE COURT: I have sustained the objection, counsel.

MS. CLARK: Sir, is it your testimony that we rely on right now with respect to the appearance of how those other little balls looked, your verbal description?

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled. That is a different question. You can answer the question.

PROF. MACDONELL: Apparently so.

MS. CLARK: And sir, you cannot say when those little balls got onto the--that inner surface before your examination on April 2nd, 1995; isn't that true?

MR. NEUFELD: Objection, asked and answered yesterday.

THE COURT: Overruled.

PROF. MACDONELL: That's true.

MS. CLARK: And you cannot say that the compression stain that occurred on the outer surface of the sock was made at the same time that the little balls got onto the inner surface on the other opposite inner side?

PROF. MACDONELL: I can put a limit on it, yes.

MS. CLARK: But you cannot say that they occurred at the same time, can you, sir?

PROF. MACDONELL: No, they couldn't have occurred at the same time. One had to precede the other. If--maybe by just a second or a fraction of a second, but the inside did not occur--on surface 3 did not occur before 1 and 2.

MS. CLARK: And you cannot say exactly when it occurred after the outer compression stain was made; isn't that correct, sir?

PROF. MACDONELL: That's correct.

MS. CLARK: And you cannot even tell this jury that those little balls on the inner surface are associated with the outer compression stain; isn't that correct?

PROF. MACDONELL: I conclude that they were.

MS. CLARK: But you cannot tell this jury that they were absolutely associated with the same outer stain; isn't that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, sir, just with respect to the outer compression stain or swipe, either one that you say it now can be, you cannot exclude the possibility, can you, that the stain was made during the commission of the murder at Bundy; isn't that correct?

MR. NEUFELD: Objection. Asked and answered yesterday.

THE COURT: Sustained. That question was asked yesterday.

MS. CLARK: Sir, you cannot exclude the possibility then that that outer compression or swipe stain was made by making contact with the step covered with the blood of Nicole Brown; isn't that correct?

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled.

PROF. MACDONELL: That is correct.

MS. CLARK: You cannot exclude the possibility that that outer compression or swipe stain on the sock was made at the time of the murder as the murderer stepped near the neck of Nicole Brown; isn't that correct?

PROF. MACDONELL: Well, the neck--it is possible, yes, but I would sooner think your example yesterday of a thumb or something that sticks out would be more likely. The neck would be too wide an area of blood staining to limit the transfer to that size stain. I mean it might be possible, but I would agree more with a thumb or something that sticks out.

MS. CLARK: Then you would agree, sir, that it would be more probable that it would be the thumb or bloody hand of Nicole Brown that could have come in contact with the sock to create that compression stain; is that correct?

THE COURT: Sustained. Sustained. Speculation, counsel.

MS. CLARK: You cannot exclude that possibility can you, sir?

MR. NEUFELD: Objection. Asked and answered yesterday, and argumentative.

THE COURT: Overruled. Sustained.

PROF. MACDONELL: I cannot exclude.

MR. NEUFELD: I'm sorry.

THE COURT: Sustain the objection. It is speculation. Proceed.

MS. CLARK: Sir, can you exclude the possibility that the stain on the outer--that the outer stain that you call a compression or a swipe could have been made by brushing up against the bloody hand of Nicole Brown?

MR. NEUFELD: Speculative and asked and answered.

THE COURT: That was asked yesterday. Sustained.

MS. CLARK: All right. Sir, you were not present--we showed photographs yesterday of the pheno tests done with that swab in this picture. Do you recall that?

PROF. MACDONELL: Yes.

MS. CLARK: And we discussed the performance of that pheno test that uses distilled water to perform the test, correct?

PROF. MACDONELL: You can use distilled water, yes.

MS. CLARK: It was apparent to you, from looking at the photograph of the sampling step that was being shown in that photograph, that that was the method that was being used in that--with the sock, correct?

MR. NEUFELD: Your Honor--

PROF. MACDONELL: Correct.

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled.

PROF. MACDONELL: That's correct.

MS. CLARK: All right. Now, that test you were not present when it was conducted; isn't that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You do not know how much pressure was applied by the person swabbing the sock with that Q-tip, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You do not know how much water was used in swabbing the sock with that q-tip, correct?

PROF. MACDONELL: I don't know how much they used. I know how much they should have use.

MS. CLARK: Okay. But you don't know how much they did use, do you?

PROF. MACDONELL: That's correct.

MS. CLARK: You don't know how large an area was swabbed, do you?

PROF. MACDONELL: No, I don't.

MS. CLARK: And if the blood was difficult to see and this test was being conducted under normal lighting in an effort to do a blood search with that swab, it could have been a very large area, could it not, sir?

MR. NEUFELD: Objection, speculation.

THE COURT: Sustained.

MS. CLARK: Nevertheless, you do not know how large an area it was?

THE COURT: Excuse me, counsel. If I hear the bases and I hear urgings for objections and if I can hear it, the jury can hear it. Proceed.

MS. CLARK: Since you were not present then, sir, you cannot tell us what large--how large an area was swabbed with that swab, correct?

PROF. MACDONELL: I can state that it did not go to the edge of the stain itself, because the blood is very clear, crisp and sharp at the edge of the stain. Gad a swab that was wetted, gone into that area, it would have diluted and diffused it and it would not look as it does, so it would be confined more to the center than the periphery. That is the only limit I can put on it.

MS. CLARK: With that limitation, sir--but you cannot tell us what portion of the stain contributed the little balls on surface 3, whether it was the periphery or the center of the stain, can you?

PROF. MACDONELL: Yes. I can eliminate the periphery because it did not soak through the fabric, only the center area soaked through, so that is the only area that could have caused the staining on the third side.

MS. CLARK: And that is the only area where the pheno test was conducted, in your opinion, sir?

PROF. MACDONELL: That's where they should have conducted it, where it is the most concentrated, yeah.

MS. CLARK: Well, didn't you just testify, sir, that based on your observation of the periphery of the stain that the way it appeared there was not water swabbed around that periphery that you saw?

MR. NEUFELD: Objection as to the term "Water swabbed."

THE COURT: Sustained. Misstates the evidence is what the correct objection is, counsel.

MR. NEUFELD: Thank you, your Honor.

MS. CLARK: Sir, we discussed the performance of that pheno test using distilled water, correct?

PROF. MACDONELL: Yes.

MS. CLARK: And in the sampling process you would use a wet q-tip to swab the area to see if there was something that appeared to be worth testing, correct?

PROF. MACDONELL: Yes.

MS. CLARK: And you were not present when that test was performed, we've already established that, correct?

PROF. MACDONELL: Correct.

MS. CLARK: So in the--in the swabbing process with a wet q-tip using an amount of pressure you are not aware of, it is your opinion, based on what you saw, that the periphery was not sampled in that manner, that the center of the scene was sampled in that manner, correct?

MR. NEUFELD: Objection as to the form of that question.

THE COURT: Overruled.

PROF. MACDONELL: Yes, that's correct, if it was very wet, the q-tip.

MS. CLARK: And it is your opinion, sir, that the little balls on surface 3 came from that center part of the stain where you opine the swabbing was done?

PROF. MACDONELL: It was done through the cut-out, which is basically the center.

MS. CLARK: Which is where you opine the swabbing was done?

PROF. MACDONELL: That's correct.

MS. CLARK: Did you test the little balls in any manner to determine whether or not if they were blood they were diluted in some manner?

MR. NEUFELD: Objection, asked and answered yesterday.

THE COURT: Sustained.

MS. CLARK: No, I didn't ask about dilution.

THE COURT: That's correct. Reask the question.

MS. CLARK: Did you test the little balls in some fashion to determine whether if they were blood they were diluted?

PROF. MACDONELL: I didn't do any testing. I did an observation and they were deep red and did not appear to be diluted at all.

MS. CLARK: Nevertheless, sir, did you not test; is that correct?

PROF. MACDONELL: I don't know what test you could apply on something that small. I did not; I don't think anyone could.

MS. CLARK: So then you cannot tell this jury that that--whatever it was was not diluted in some fashion, can you, sir?

MR. NEUFELD: Objection. Misstates his testimony.

THE COURT: Overruled.

PROF. MACDONELL: I conclude it wasn't, but I cannot say absolutely one, that it is transferred from the outside and if it were it would be blood, and two, that it is not a concentration in some fashion, but I cannot conceive of how that could occur. It appears to be a fresh sample of a red fluid that is dried and bonded to a fiber.

MS. CLARK: Sir, isn't the basic tenant of science, the cornerstone of it, testing, sir?

PROF. MACDONELL: I think it is observation.

MS. CLARK: And testing, is it not, sir?

MR. NEUFELD: Objection. I think he should be allowed to finish his answer.

THE COURT: Sustained. Let him finish.

PROF. MACDONELL: Observation and then testing. You have to observe something to determine what you might test for. I think it goes in that order.

MS. CLARK: Right, and based upon your observation you form a hypothesis, do you not, or a theory, do you not?

PROF. MACDONELL: I form the conclusion.

MS. CLARK: But then you go to test that conclusion to determine whether it is correct or not; isn't that true, sir?

PROF. MACDONELL: If it is possible to do so you should, yes.

MS. CLARK: And is it not true, sir, that on occasion it will help that you have a theory based on your observation that is disproven by testing? Doesn't that happen, sir.

MR. NEUFELD: Vague. Objection.

THE COURT: Overruled.

PROF. MACDONELL: It could, yes.

MS. CLARK: And in this case, sir, you formed a conclusion based on your observation which you could not test; isn't that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: And so you cannot rule out the possibility that whatever you observed that substance was in those little balls was diluted or not? You cannot rule out the possibility that they were diluted, can you, sir?

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled.

PROF. MACDONELL: I can't absolutely rule out anything in any instance and in this case I could not absolutely rule it out as a scientist.

MS. CLARK: Nevertheless, if you had tested those little balls in some fashion you might have been able to; isn't that correct?

THE COURT: Sustained. Sustained.

MS. CLARK: And sir, you cannot rule out the possibility that those little balls were created at the time that the pheno test was conducted on August 4th; isn't that true?

PROF. MACDONELL: Only--it could only be ruled out if the testing was done in the normal procedure, not using a saturated q-tip. That is not what you use when you have a stain of that size. So if it was done properly, there would not be enough liquid to dissolve any blood and transfer it to the inner surface, surface 3, and if it was, it would not appear that red. That is my conclusion.

MS. CLARK: And what test did you do to support that conclusion, sir?

PROF. MACDONELL: There is no test you can do except observation with good optical equipment.

MS. CLARK: Sir, what experiments did you perform on the material of this sock to show that a pheno test using distilled water on a swab would not produce those little balls on the opposite inner side?

PROF. MACDONELL: I didn't have the socks to experiment with. I didn't do that.

MS. CLARK: Did you make any attempt to experiment, as I have suggested, performing a pheno test on a bloodstain to see if that would cause some seepage of microscopic quantities onto the opposite inner side?

MR. NEUFELD: Objection, no foundation.

THE COURT: Overruled.

PROF. MACDONELL: Not on that sock.

MS. CLARK: Did you attempt to do it on any substance or material that was identical to or very similar to that sock?

PROF. MACDONELL: Yes.

MS. CLARK: You did a pheno test and attempted to observe whether there were microscopic particles on the opposite inner side after you performed the test?

PROF. MACDONELL: I didn't do a pheno test or a phenolphthalein test because I knew it was blood. I put it on the material myself.

MS. CLARK: And can you show us the documentation from the pheno test that you conducted with distilled water and a swab on material just like those socks?

MR. NEUFELD: Misstates the evidence.

THE COURT: Sustained. Sustained.

MS. CLARK: Sir, what experiment did you perform on material just like these socks to show that a pheno test on a bloodstain on an outer surface that is just like this bloodstain would leave the microbes or not leave those little balls on the opposite inner side?

PROF. MACDONELL: I applied blood to a similar material, a stocking that was of the lightweight polyester composition, and brushed it on lightly, enough to soak through, and after that I cut out a portion and observed the side opposite corresponding to side 3.

MS. CLARK: Objection. Objection, your Honor. This is not my question. This is nonresponsive.

THE COURT: Sustained.

MS. CLARK: Motion to strike.

THE COURT: The answer is stricken.

MS. CLARK: Mr. MacDonell, please listen to my question. I am asking you now whether you took material just like these socks with blood on it, performed a sampling with a wet q-tip, pressing down with that wet q-tip to sample the blood and then observed the opposite inner side after it had dried to see if there were little balls like those observed on this sock? Did you do that, sir?

PROF. MACDONELL: Not that specific experiment, no.

MS. CLARK: Thank you, sir.

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

MS. CLARK: And lastly, sir, you cannot rule out the possibility that those little balls that you observed are the result of someone with a bloody hand pulling off their socks, can you?

MR. NEUFELD: Objection. Asked and answered yesterday.

THE COURT: Sustained.

MS. CLARK: Did I? I have nothing further.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you. Good morning, ladies and gentlemen.

THE JURY: Good morning.

MR. NEUFELD: One moment

(Discussion held off the record between Defense counsel.)

REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Miss Clark asked you a series of questions this morning about your several trips you made out here during the last month. Do you recall those questions?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Did you make several trips out here during the last month because you had been told you were going to testify and then because of scheduling problems you then had to go home and return again and go home and return again?

PROF. MACDONELL: That's correct.

MR. NEUFELD: Okay. One moment. Your Honor, before I continue this--this redirect, can I have a brief side bar?

THE COURT: With the court reporter, please.

MR. NEUFELD: Thank you.

(The following proceedings were held at the bench:)

THE COURT: All right.

MS. CLARK: I want one, too.

THE COURT: We are over at the side bar. You guys both ask entirely too many questions. All right.

MR. COCHRAN: Sorry, Judge.

MR. NEUFELD: I have only asked one question about travel so far.

THE COURT: Do you think the jury is really interested in that?

MR. COCHRAN: Judge, only one lawyer.

MS. CLARK: Yeah.

MR. NEUFELD: Your Honor, I believe yesterday through Miss Clark's questioning she opened the door for me to bring out the fact that they did do presumptive testing on the sock for two reasons: Okay. No. 1, she brought out the fact that he both examined the socks microscopically and then certain chemical tests were done, and the suggestion was that Mr. Matheson was outside the room. So I'm going to have to describe what those chemical tests were.

More importantly, late in the day during her cross-examination she asked, "Well, you didn't do any typing on those red balls," suggesting in fact that that we confirmed that is blood other than the visual inspection. I would call the Court's attention to the manner of the drains in Mr. Simpson's house where the People were precluded from bringing out that they did presumptive testing on the drain. The Court ruled at that time that if we made any suggestion that it wasn't blood in the drainpipes, okay, that that would then open the door to bring out the presumptive tests. Miss Clark's question about the failure to do typing tests on those red balls I believe is the same thing. In fact, she said in the very next question, "Well, let's even assume for the moment that they are blood balls." I think she caught herself and realized what she had just done. But I think that for both those reasons, your Honor, I am entitled to ask this witness about the presumptive tests part because, as I said, there is already testimony about the chemical tests that they did on April 2nd and the second reason being for a suggestion that we haven't done anything to indicate the proof of those red balls are blood.

MS. CLARK: No, your Honor. That--the--counsel is now trying to use his witness' own nonresponsive answer. I never intended to elicit from him that he performed such a test. He volunteered that in an effort, as he has frequently done, to interject into the record matters that he knows he is not allowed to get into which he knows I'm not asking for. But counsel really has all that he wants in my requesting of him whether or not it was typed, because the issue of that was not to dispute that was blood, and I've pretty much--although there have been times that I said, well, we assume it is blood--I have pretty much conceded that--certainly not fought the assertion that it might be. All I was saying was we don't know whose it is, if it is blood. That is not fighting the assertion that it is blood. That is--counsel is using the camel's nose argument, but it is his nose that is in the tent and not mine.

THE COURT: All right. Can you show me the question and answer you are referring to?

MR. NEUFELD: I don't have the transcript. It is based on my recollection.

MS. CLARK: I don't see how that would possibly let it in, your Honor. All I'm saying, it is blood; you don't know whose it is.

MR. COCHRAN: I will ask Blasier.

THE COURT: At this point I'm going to sustain the objection. The Court's previous ruling regarding phenolphtalein will stand. Ask Blasier to--

(Brief pause.)

MS. CLARK: Your Honor, there was a second issue that I wanted to raise while we are here so we don't waste time.

THE COURT: All right.

MS. CLARK: I don't want to jump back up here.

THE COURT: What is the second issue?

MS. CLARK: The second issue is that the witness attempted to get in the sock drying experiment. He knew what I was asking him, deliberately interjected a matter that was totally irrelevant to my question. My question had nothing to do with the phenolphthalein test or the application of distilled water. He knew it very well.

THE COURT: And we stopped it real quick.

MR. NEUFELD: It also wasn't the sock drying experiment he was referring to.

THE COURT: Let's proceed.

MS. CLARK: If counsel intends to use that answer to open up the door that has been closed by the Court--

MR. NEUFELD: I'm not going to.

THE COURT: All right.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Mr. Neufeld.

MR. NEUFELD: Thank you.

MR. NEUFELD: What I would like to you do, Professor MacDonell, for most of these questions, is use the same terminology that the Prosecutor used; namely, we have side 1, side 2, side 3 and side 4 of the socks. And could you just quickly show, perhaps using your own sock again, what we mean by that with side 1, side 2, side 3 and side 4?

PROF. MACDONELL: Can I use my sleeve instead?

MR. NEUFELD: Fine.

PROF. MACDONELL: If the stain is on the top, that is considered side 1. Side 2 would be inside where liquid could soak through. Side 3 would be opposite, if the garment were lying flat, and side 4 would be the outside, which would be opposite the side 3.

MR. NEUFELD: Thank you. Now, on cross-examination the Prosecutor asked you a series of questions concerning the manner in which the sock had been handled prior to your examination on April 2nd. Do you recall her asking you those questions?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: And do you recall her in those series of questions asking you whether, for instance, if the socks were twisted in a certain way could that produce the red balls that you observed on surface 3? Do you recall her asking you that question?

PROF. MACDONELL: Yes.

MS. CLARK: Objection. Objection. That misstates the question.

THE COURT: Overruled.

MR. NEUFELD: All right. Professor MacDonell, in your opinion could twisting the socks result in producing the red balls that looked like blood bonded to the fiber on surface 3?

PROF. MACDONELL: No, it could not.

MR. NEUFELD: Why not?

PROF. MACDONELL: You can't create little round balls of fluid that dry on a fiber by simply twisting a garment. You can't do it.

MR. NEUFELD: Professor MacDonell, could freezing and thawing the sock in the laboratory's freezer after the stains had already dried produce the red balls that looked like blood bonded to the fiber of surface 3?

PROF. MACDONELL: No, they could not.

MR. NEUFELD: Why not?

PROF. MACDONELL: There would have to be a substantial amount of moisture and that would show up by diluting and diffusing the clear sharp stains around the periphery of the major cut-out area.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

THE COURT: Mrs. Robertson, do you have the small photograph from yesterday?

(Brief pause.)

MR. NEUFELD: Thank you.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Professor MacDonell, I'm going to be showing you the Prosecution's exhibit 554. Do you see that picture of Dr. Henry Lee?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Stretching the socks?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: In your opinion could Dr. Henry lee's stretch the socks as shown in that photograph result in producing the red balls that look like blood bonded to the fiber on surface 3?

PROF. MACDONELL: No, that could not produce it.

MR. NEUFELD: Why not?

PROF. MACDONELL: Again there is no moisture, there is nothing that would cause a transfer. They would have to have been there prior to this photograph.

MR. NEUFELD: I show you Prosecution's exhibit no. 555. Here again you see a photograph that was shown to you by the Prosecutor yesterday of Dr. Lee apparently turning a portion of the socks inside out. Sir, in your opinion could Dr. Lee's turning these socks inside out result in producing the red balls that look like blood bonded to the fiber on surface 3 of the sock?

PROF. MACDONELL: No, it could not.

MR. NEUFELD: Why not?

PROF. MACDONELL: Again, it requires moisture. The creation of those red balls was due to a liquid drying, and merely manipulating the socks cannot produce that. It would have to be there.

MR. NEUFELD: Professor MacDonell, could using a scissors or a scalpel to cut pieces of the sock out for additional testing result in producing the red balls that looked like blood bonded to the fiber on surface 3 of the sock?

PROF. MACDONELL: No.

MR. NEUFELD: The Prosecutor also showed you a photograph of somebody, prior to the time that you examined the socks on April 2nd, conducting a presumptive test on the sock before any area of it was cut out. In your opinion, sir, could conducting a phenolphthalein test on the outside surface of that stain, prior to the time that any of it was cut out, result in producing the red balls that looked like blood bonded to the fiber of surface 3?

PROF. MACDONELL: It could only do that if there was an abundance of liquid to dissolve blood from the surface. And I don't--I'm not being disrespectful. I'm saying it would be a sloppy technique in that there would be a lot of liquid on the q-tip.

MR. NEUFELD: To your--

PROF. MACDONELL: Ordinarily you use just a dampening, not a volume of water.

MR. NEUFELD: And when you looked at that picture did you see what appeared to be a--you said a yellow oval on the piece of paper?

PROF. MACDONELL: Yes.

MR. NEUFELD: And would that be consistent with your understanding that when it is done properly someone simply takes the swab and dabs that preexisting wet stain on the paper and then applies it to the material on the sock?

PROF. MACDONELL: That is one way it is done.

MS. CLARK: Objection as speculation.

THE COURT: Overruled.

PROF. MACDONELL: That is one way it is done because it requires a minimal amount of liquid to dissolve the surface of the bloodstain or the stain being tested to determine if presumptively it could be blood. The amount that is removed that is necessary for a test is very, very small. The phenolphtalein test is a very sensitive test.

MR. NEUFELD: And sir, is it your opinion if the test was conducted in a normal fashion, and simply dab that yellowish oval, would that produce or could that produce the red balls that looked like blood bonded to the fiber of surface 3 of the sock?

PROF. MACDONELL: No, it would not.

MR. NEUFELD: Now, the Prosecutor asked you whether since you saw the evidence of a wet transfer stain on surface 3 on April 2nd that you can't say for sure when the stain on surface 3 got there; isn't that correct?

PROF. MACDONELL: That's correct.

MR. NEUFELD: Well, sir, in this case there has already been testimony that the first time anyone observed a bloodstain on the sock was August 4th. The question I have for you, sir, is can anyone tell when before August 4th any of the stains on that sock got there?

PROF. MACDONELL: No.

MR. NEUFELD: You recall when Miss Clark asked you questions about when the transfer stain appeared on surface 3 and she gave you a series of different dates and you said you couldn't rule out those dates. Do you recall that?

PROF. MACDONELL: Yes.

MR. NEUFELD: Likewise, sir, can you rule out or can any scientist rule out that the initial bloodstains found on that sock were not put on that sock on August 3rd?

PROF. MACDONELL: No.

MR. NEUFELD: Or August 1st?

MS. CLARK: Objection, that calls for speculation.

THE COURT: Sustained.

MS. CLARK: Motion to strike.

THE COURT: Overruled.

MR. NEUFELD: One second.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Do you recall--do you remember the Prosecutor asking you some questions about differences between the term "Swipe" and the term "Compression"? Do you recall that?

PROF. MACDONELL: Yes, I certainly do.

MR. NEUFELD: And I believe you just said to her on cross-examination that they were quite similar and that in fact a swipe was a subcategory of a compression stain. Do you recall that?

PROF. MACDONELL: Yes.

MR. NEUFELD: But are both those stains, that is a swipe or a compression, significantly different than the stain that results from blood spatter?

PROF. MACDONELL: Oh, yes.

MS. CLARK: Objection, vague.

THE COURT: Overruled.

MR. NEUFELD: And what is the difference?

THE COURT: Wait a minute.

MR. NEUFELD: I'm sorry.

THE COURT: You need to let your witness finish his answer.

MR. NEUFELD: Okay.

PROF. MACDONELL: They are significantly different.

MR. NEUFELD: How are they different, sir?

PROF. MACDONELL: A spatter is projected blood just like a drop would fall on to a surface and again it will be indiscriminately between fibers as well as on the surface. A swipe pattern or wiping of the surface with blood, a transfer pattern, will only be on the surface of the fibers unless there is sufficient blood to penetrate the central area. And that is why I characterize this as a transfer pattern with indications of lateral motion which could make it then a swipe pattern.

MR. NEUFELD: Sir, you stated that you observed a wet transfer stain on side 1 and side 2 and side 3 of the sock; is that correct?

PROF. MACDONELL: Yes.

MR. NEUFELD: Did you observe any evidence of a stain on what you've now described as side 4?

PROF. MACDONELL: No.

MR. NEUFELD: The outside surface opposite side 3?

PROF. MACDONELL: No. There was very little on surface 3; not sufficient to penetrate the fibers and come outside 4.

MR. NEUFELD: Does the absence of any blood on side 4 indicate that the--that these red balls seen on side 3 did not soak through from side 4?

PROF. MACDONELL: Certainly.

MR. NEUFELD: Is that additional evidence that these red balls--

MS. CLARK: Objection, leading.

THE COURT: Sustained.

MR. NEUFELD: Now, the Prosecutor asked you some other questions about the April 2nd examination that you attended with Dr. Henry Lee. Do you recall that?

PROF. MACDONELL: Yes.

MR. NEUFELD: And she asked you questions about the presence of Gregory Matheson from the LAPD SID laboratory. Do you recall that?

PROF. MACDONELL: Yes.

MR. NEUFELD: Was Gregory Matheson present in the room during the entire time that photographs were taken of the socks through the microscope?

PROF. MACDONELL: During the photography, yes.

MR. NEUFELD: And the Prosecutor asked you why in your own notes you didn't personally describe seeing the red balls bonded to the fabric on surface 3. Who was the primary note taker on April 2nd?

PROF. MACDONELL: Dr. Lee.

MR. NEUFELD: Sir, have you ever heard the expression that a picture is worth a thousand words?

PROF. MACDONELL: Certainly.

MR. NEUFELD: In your professional opinion, sir, is a photograph an adequate way of documenting what you observed in the microscope instead of simply writing it down in your notes?

PROF. MACDONELL: Yes.

MR. NEUFELD: Why is that?

PROF. MACDONELL: Well, as you've just stated, a picture is worth a thousand words and, I could not sketch it or describe it as accurately as it can be recorded on film.

MR. NEUFELD: Earlier yesterday the Prosecutor asked you some questions about your academic career. Before you started teaching at Milton College, what was the extent of your education?

PROF. MACDONELL: I had a four-year degree with a major in chemistry and a minor in mathematics from Alfred University and one year of graduate study in chemistry from Alfred University.

MR. NEUFELD: Were you proud of the fact that you were asked to teach college students without receiving an advanced degree first?

PROF. MACDONELL: I was both proud and surprised. The recommendation from Dr. Saunders must have been quite good. I haven't seen it.

MR. NEUFELD: Sir, remember I asked you about the John Dondero award which you and J. Edgar Hoover had been recipients of?

PROF. MACDONELL: Yes.

MR. NEUFELD: When you were selected, did the size of the college you attended or taught play a role in the selection process?

PROF. MACDONELL: I doubt it very much. I don't know whether they even know which college I taught at or attended.

MR. NEUFELD: The Prosecutor asked you questions about perspiration. Is there any evidence in the sock stains that you observed of the presence of significant perspiration, sir?

PROF. MACDONELL: No. There is--

MS. CLARK: Objection. Speculation, your Honor.

THE COURT: Overruled.

MS. CLARK: Objection, no foundation.

THE COURT: Sustained.

MR. NEUFELD: Sir, is there a basis for you to conclude whether or not those socks had significant amounts of perspiration at the time that the blood was put there?

MS. CLARK: Objection, no foundation. Calls for speculation.

THE COURT: Overruled.

PROF. MACDONELL: Yes, there is.

MR. NEUFELD: And what is that basis, sir?

MS. CLARK: Objection, no foundation.

THE COURT: Overruled.

MS. CLARK: Objection. Outside the scope of his expertise. Speculation, your Honor.

THE COURT: Overruled.

PROF. MACDONELL: The appearance of the blood on the surface of the fibers around the periphery is very clear and sharp. If any significant amount of moisture, such as perspiration, had penetrated those fibers, they would have been diluted and diffused.

MR. NEUFELD: At the end of her cross-examination yesterday the Prosecutor asked you whether the stain observed on the outside of the ankle portion of the sock could have been had--I'm sorry--could have been made when the wearer of the sock brushed against Nicole Brown Simpson's hand or another bloody surface at the Bundy crime scene. And I believe you answered that it could. Do you recall that, sir?

PROF. MACDONELL: Yes.

MR. NEUFELD: But let me ask you this, sir: Given all your observations on sides 1, 2 and 3 and 4 of the ankle area, are the transfer stains that you observed consistent with the wearer of the sock brushing against Mrs. Brown Simpson or some other bloody surface at the Bundy crime scene?

PROF. MACDONELL: Not as I understand the evidence in the case.

MR. NEUFELD: And why not, sir?

PROF. MACDONELL: The crime scene, as I understand it, is at least six minutes from the residence of Mr. Simpson.

MS. CLARK: Objection, your Honor. Ask to approach.

THE COURT: Sustained. Sustained.

MS. CLARK: Ask the jury be admonished.

THE COURT: The answer is stricken. The jury is to disregard it. Proceed.

MR. NEUFELD: The Prosecutor also asked you whether or not the stain is consistent with Mr. Simpson with bloody hands taking off the socks. Do you recall that?

PROF. MACDONELL: Yes.

MR. NEUFELD: Well, if Mr. Simpson--I'm sorry. Again, sir, based on your observations and your expertise, is the evidence you have seen--I'm sorry. Withdrawn. I will rephrase the question.

MR. NEUFELD: Let me ask you a hypothetical, Professor MacDonell. If Mr. Simpson had come home with blood on his hands from Nicole Simpson Brown and went upstairs to his bedroom to take his socks off, would you expect to see a trace of his blood on the light switches in the house.

MS. CLARK: Objection, speculation, assumes facts not in evidence.

THE COURT: Sustained.

MR. NEUFELD: Would you expect to see blood on the banister going upstairs?

MS. CLARK: Same objection.

THE COURT: Sustained.

MR. NEUFELD: May we have a side bar, your Honor?

THE COURT: No.

MR. NEUFELD: Are you aware of the fact, Professor MacDonell, that the criminalists in this case have evidence that there were absolutely no bloodstains consistent with Nicole Brown Simpson recovered anywhere inside Mr. Simpson's home?

PROF. MACDONELL: Yes.

MR. NEUFELD: Have you seen the pictures of the beige carpet in his bedroom?

PROF. MACDONELL: Yes.

MR. NEUFELD: Have you seen the pictures of the white bedspread on his bed?

PROF. MACDONELL: Yes.

MR. NEUFELD: Are you familiar with the speed at which blood clots, sir?

PROF. MACDONELL: Yes, there is a range.

MR. NEUFELD: And sir, what is that range?

MS. CLARK: Objection, your Honor. Beyond the scope of his expertise; no foundation.

THE COURT: Sustained.

MR. NEUFELD: Sir, in your expertise on blood spatter patterns and bloodstain interpretation, have you studied the rate at which blood clots and what role that plays in providing features of particular bloodstains?

PROF. MACDONELL: Yes.

MR. NEUFELD: And for how long have you studied that fact, sir?

PROF. MACDONELL: Since we began drawing blood in 1954. If we didn't have an anticoagulant, it would always clot, of course.

MR. NEUFELD: And what is the significance--I'm sorry. And what is that range for clotting.

MS. CLARK: Same objection, your Honor. There is no foundation, no expertise.

THE COURT: Overruled.

PROF. MACDONELL: Normal range, not only in our experiments and observations, but in the published literature, is between--generally between three and six minutes. If someone is hemophiliac then of course it will be much, much longer, if at all.

MR. NEUFELD: And what is the significance of your knowledge of the clothing factor in giving an opinion on whether or not the bloodstains seen on those socks would have been made had Mr. Simpson come home with Nicole Brown Simpson's blood on his hand when he took off those socks?

MS. CLARK: Objection, your Honor. Objection. No foundation, calls for speculation and assumes facts not in evidence.

THE COURT: Overruled.

PROF. MACDONELL: I would expect to see traces of clot material on the surface, because it would not penetrate into the fabric, but the amount of clot material on a dark surface like that could be the first thing removed if a testing was made. It would not necessarily bond as quickly as the blood that saturated and soaked into the fabric.

MR. NEUFELD: And in the notes that you have reviewed by Greg Matheson and Mr. Sims of their observations of the stain on the outside surface of the sock, do any of them mention seeing any clot-like material?

PROF. MACDONELL: Not that I am aware of.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Yesterday Miss Clark asked you whether or not the surface of the stains that you saw on the ankle could have happened--I'm sorry. Withdrawn. I will rephrase the question. Yesterday Miss Clark asked you whether or not the surface stain you saw, surface 1 of the sock, could have been made by contact at the Bundy crime scene. Is there anything about not just the stain you saw on surface 1, but the stain you saw on surface 2 and surface 3 which would indicate to you that it couldn't have happened that way?

PROF. MACDONELL: Yes.

MR. NEUFELD: And what is that, sir?

PROF. MACDONELL: The red balls on--

MS. CLARK: Objection. Speculation, your Honor.

THE COURT: Overruled.

PROF. MACDONELL: The red balls that were on the inside on surface 3, if blood and had transferred from surface 2, could have to be transferred by a moist or wet stain and that wet, moist stain could not persist for a period of time, six minutes, seven minutes, eight minutes would be far beyond the drying time.

MS. CLARK: Objection, objection, objection.

THE COURT: Sustained. The answer is completely stricken.

MR. NEUFELD: Professor MacDonell--

THE COURT: Excuse me. Over at side bar with the court reporter. Ladies and gentlemen would you step into the jury room. In fact, stay there.

(The jury was excused and the following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Thank you, counsel. Be seated. What was that about?

MR. NEUFELD: I'm sorry. Your Honor, when Professor MacDonell has a second reason, aside from drying, as to when you look not just at the surface stain on surface 1, but the surface stains on 2 and 3, why it is inconsistent with Bundy, and the answer would simply be that the stain that you see on surface 3 had to have occurred at a time when there was no ankle in the sock and that is the answer that I was looking for and that is the answer that he told me this morning. I knew full well what the Court's ruling was with respect to the other and I was very careful about it, and as you may have noticed, I was basically done and I realized there was one other way that could I still deal with the same hypothetical without even going into drying, but just to have him say that there would be no ankle there and that is the answer that I was looking for.

THE COURT: That is not the answer we got.

MR. NEUFELD: That is understood, your Honor, and I'm sorry about that, but that was not my intention at that time. I heard the Court's ruling very clearly and I fully expected this witness to give the other answer. You can inquire of the witness, your Honor. I have no problem with it. There were two separate grounds for the opinion and I at that time expected him to simply articulate the second ground based on the Court's ruling.

THE COURT: All right. I have stricken the answer. I take it this is going to be your last question?

MR. NEUFELD: Yes.

MS. CLARK: May I be heard, your Honor?

THE COURT: Yes.

MR. NEUFELD: Also, your Honor, before we have the jury, can I instruct the witness to so limit his answers so we don't have any additional problem?

THE COURT: He has been present for our discussion. I assume he has understood what we just discussed.

MR. NEUFELD: Thank you, your Honor.

THE COURT: Miss Clark.

MS. CLARK: But that is the very problem. I'm sure that Mr. Neufeld informed this witness that he was not to go into the sock drying experiment. This is the fourth time. Counsel has elicited that response from the witness. I'm not saying counsel is doing it intentionally, but it is happening none the less. The witness should be charged. This is a professional witness. This is not some kid off the street who is testifying for the first time. This is 150 times worse. This man has testified. He knows better. And yet four times I've had to object to prevent him from testifying to what he knows and counsel knows is inadmissible and now it has happened again. And I don't know, you know--I don't know when some admonition should be given to the jury. If not now, how many times does this man get to bring into the record or attempt to bring into the record material that the Court has determined inappropriate and inadmissible? How many times before the jury is told that this is inadmissible?

THE COURT: Well, I think the jury has divined enough that I've stopped the proceedings, asked them to step out and stricken the answer. I think they got the feeling that it has been inappropriate and since it has happened four times with this witness already, I think they have gotten the message. All right. Let's proceed.

MS. CLARK: The other problem is discovery we need.

PROF. MACDONELL: May I make a comment?

THE COURT: No, you may not.

MS. CLARK: We were never informed of the second reason, your Honor. This is a new one to me. And as a matter of fact, the witness conceded on cross-examination that he could not say that surface 1 and surface 3 stains were made at the same time, and now for the first time I'm hearing there is a new theory that I was not informed of.

THE COURT: Are you speaking of the clotting business?

MR. NEUFELD: No.

MS. CLARK: I am.

MR. NEUFELD: It is not a new theory, your Honor.

THE COURT: Wait, counsel. I'm sorry--

MR. NEUFELD: I'm sorry.

THE COURT: --I was speaking with Miss Clark.

MR. NEUFELD: Sorry.

MS. CLARK: I have not heard this new theory that counsel admitted just now which was told to him by this witness this morning for the first time, there was an additional reason other than the sock drying experiment. That is the point of discovery, isn't it?

THE COURT: It is.

MS. CLARK: That is why the People asked for the 402 on this witness to begin with. He is testifying to things that no one has heard before, even counsel has heard before this morning. How can we effectively cross-examine someone like this?

THE COURT: All right. As to which point, Miss Clark?

MS. CLARK: Well, as to the new theory now about the timing of when stain 3 had to have occurred. This is something new. Initially--

THE COURT: A new theory that it occurred when?

MS. CLARK: It appears that the witness is now going to attempt to testify that he can say definitively that stains 1 and stains 3 occurred at the same time because stain 2 came from--stain 3 came from stain 2. That was something that he was not willing to go that far on cross. Apparently he has something new to which counsel just said was explained to him this morning by this witness.

THE COURT: No, but he has already opined that in his opinion stain 3 came from stain 2 and that obviously because of the way men wear socks, or women, for that matter, that obviously if there was a foot in there it wouldn't happen this way. That is what I think the answer is going to be.

MS. CLARK: May I have one moment, your Honor? My worthy colleague has--

(Brief pause.)

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

MS. CLARK: If that were the case, your Honor, then that would be consistent with what he had said before.

THE COURT: Since that is a concluding question, I assume it is a wrap-up question.

MS. CLARK: But this is a new theory, if what I understand is correct.

THE COURT: No, no, no, it is not a new theory.

MS. CLARK: Can we hear from counsel then?

THE COURT: It is not a new theory.

MS. CLARK: That is what counsel said.

THE COURT: 3 came from 2 and the only way that can happen is if there isn't a foot in it. Even I understand that.

MS. CLARK: Right. And I understood that, too, your Honor, but here is what counsel said. He said there were two separate grounds for the opinion, one, the sock drying experiment and one--

THE COURT: This is a different theory.

MS. CLARK: Yes.

THE COURT: All right. Let's have the jurors, please.

MR. COCHRAN: Thank you, your Honor.

(Brief pause.)

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

THE COURT: Thank you, ladies and gentlemen. Please be seated. The record should reflect that we have been rejoined by all the members of our jury. Mr. Neufeld, do you have any further questions?

MR. NEUFELD: Yes.

MR. NEUFELD: Professor MacDonell, based on your observations of surface 1, surface 2 and surface 3 of the sock in question, is it your opinion that the staining of that sock could have happened at the Bundy crime scene?

PROF. MACDONELL: No.

MR. NEUFELD: Why not?

PROF. MACDONELL: If there was a foot or an ankle in the sock it could not transfer from surface 2 to 3.

MS. CLARK: Objection, that was vague, staining as to 1, 2 or 3.

THE COURT: Overruled. Overruled.

MR. NEUFELD: Would you please start again, sir.

PROF. MACDONELL: The staining that transferred, in my opinion, from surface 2 to surface 3 could not occur if a foot was in the sock.

MR. NEUFELD: Thank you very much. No further questions.

THE COURT: Miss Clark.

RECROSS-EXAMINATION BY MS. CLARK

MS. CLARK: But you cannot--you cannot tell this jury that the stain from surface 2 and the stain to surface 3 occurred at the same time, correct?

PROF. MACDONELL: That is correct.

MR. NEUFELD: Vague as to time.

THE COURT: Overruled.

MR. NEUFELD: Same time.

MS. CLARK: And if there are little round balls already formed on surface 2, sir, you cannot rule out the possibility of transfer to surface 3, correct?

MR. NEUFELD: Objection as to "Transfer."

THE COURT: Overruled.

PROF. MACDONELL: I do not understand the question, I'm sorry.

MS. CLARK: Okay.

MS. CLARK: Let me ask you more simply. Assume the following hypothetical, sir: That someone is wearing a very thin pair of nylon socks and that they are very--they are wet with perspiration.

MR. NEUFELD: Objection, there is no--assumes facts not in evidence.

THE COURT: Overruled.

MS. CLARK: That a bloodstain is applied to the outer surface around the ankle, that while the blood is still in a wet condition the socks are left flat on the floor.

MR. NEUFELD: Objection, assumes facts not in evidence, speculation.

THE COURT: Overruled. Overruled.

MS. CLARK: The socks are left flat on the floor while that bloodstain is still wet, could that cause--could such a set of facts, sir, cause the little balls to appear on the surface 3 that you--such as you observed in this case?

PROF. MACDONELL: Yes, under those conditions.

MS. CLARK: You indicated, sir, that the little balls that you saw on surface 3 would have to have been there before the February 16th examination by Dr. Henry Lee? Isn't that what you said?

PROF. MACDONELL: Yes, they would have to be.

MS. CLARK: But to the best of your knowledge there are no photographs that depict any of those little balls taken on February 16, 1995, during Dr. Henry lee's examination, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And Dr. Lee did--did instruct the--or direct the photographs that were taken on April 2nd, 1995, did he not?

PROF. MACDONELL: Yes.

MS. CLARK: You indicated that the performance of a pheno test could only have caused those little balls to appear on surface 3 if there was abundance of liquid. Do you recall that testimony, sir?

PROF. MACDONELL: Yes.

MS. CLARK: Nevertheless, the volume of the little balls that you saw is so--is so microscopic that they could not be seen with the naked eye; isn't that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: And yet the drop of blood on the outer surface of surface 1 you estimated at 50 to 60 microliters; isn't that right?

PROF. MACDONELL: That is correct.

MS. CLARK: And easily observed volume of blood, would it not be?

PROF. MACDONELL: Yes.

MS. CLARK: Under high-intensity light on those dark socks anyway?

PROF. MACDONELL: Certainly.

MS. CLARK: Nevertheless, a drop of blood of that quantity, 50 to 60 microliters, would be easy for us to see with the naked eye; isn't that correct?

PROF. MACDONELL: Not under this illumination, but if you had high-intensity illumination, an average person could see it without anything more than a magnifying glass.

MS. CLARK: Okay. But on those black socks, sir, if someone under normal lighting conditions was not looking for blood, then that amount of blood, 50 to 60 microliters, can be easily missed, could it not?

MR. NEUFELD: Objection. Beyond the scope of cross--of redirect, I'm sorry.

THE COURT: Sustained.

MS. CLARK: Okay. Now, the dot on the paper where we saw the sampling phase of the phenolphthalein testing on the socks could be water dripping, could it not, sir?

MR. NEUFELD: Objection, calls for speculation.

THE COURT: Sustained.

MS. CLARK: Well, sir, you don't know--you don't know how that drop got to be there isn't that correct?

MR. NEUFELD: Objection, your Honor. Speculation.

THE COURT: Overruled. Overruled.

PROF. MACDONELL: It didn't get there by dripping. At least if it did, the paper was at an angle, because it is an oval or an ellipse and not a round spot, which is what happens when a liquid strikes a flat surface.

MS. CLARK: Nevertheless, you do not know how that water came to be there; isn't that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You don't know if it is because they were dabbing off excess water or if water was just dripping from a very wet swab; isn't that right?

MR. NEUFELD: Objection, speculation.

THE COURT: Sustained.

MS. CLARK: Now, you examined these socks for the first time ten months after their collection on April 2nd, 1995?

PROF. MACDONELL: I examined them on that date, yes.

MS. CLARK: Did you perform any test on the material of those socks to determine whether you could examine them ten months after they were perspired into and detect the perspiration on them?

PROF. MACDONELL: No.

MS. CLARK: Did you perform any experiments on those socks to determine whether perspiration would absorb all the way through for the purpose of being able to detect that perspiration later on?

PROF. MACDONELL: Well--

MS. CLARK: Yes or no, Mr. MacDonell?

PROF. MACDONELL: I didn't do any tests, no.

MR. NEUFELD: Your Honor--

MS. CLARK: Now, sir, you are aware of Dr. Huizenga's testimony, are you not, that someone that cuts themselves, the blood can clot, unclot and reclot again?

PROF. MACDONELL: I am not aware of that, no.

MS. CLARK: Would that surprise you, sir?

PROF. MACDONELL: It would surprise me greatly if blood unclotted. There might be additional blood added to an existing clot, but that would be fresh blood. I have never heard of blood unclotting as such.

MS. CLARK: Let me be more specific. Someone has a cut on their finger which is bleeding and then clots, can movement of the finger, in your opinion, cause that blood to unclot and bleed fresh?

PROF. MACDONELL: No. You can move--

MR. NEUFELD: Objection, your Honor, to the form of the question.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Yes. Are you aware of Dr. Huizenga's testimony to the effect, sir, that blood--that a cut can bleed and then clot and through movement and activity unclot and bleed again?

THE COURT: Counsel, you are using a term "Unclot."

MS. CLARK: Unclot.

THE COURT: You are talking perhaps the clot breaks, perhaps the clot is wiped away?

MS. CLARK: Right.

THE COURT: The wound starts to bleed again with fresh blood?

PROF. MACDONELL: You can have fresh blood coming from a wound that has previously clotted if you remove the obstruction which would be the clot or scab.

MS. CLARK: In which way someone would bleed, stop bleeding and bleed again, correct?

PROF. MACDONELL: They could, yes. Under that mechanism they would.

MS. CLARK: Now, sir, you testified concerning the fact that you saw the photographs of the Rockingham address and saw no blood on the light switch and no blood on the bedspread and no blood--

THE COURT: Excuse me, counsel. I sustained the objection to that.

MS. CLARK: No, not to those.

THE COURT: Yes, I did.

MS. CLARK: Okay.

THE COURT: To part of that I sustained the objection.

MS. CLARK: Which part was it? I can't remember.

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

THE COURT: I allowed carpeting and the bedspread.

MS. CLARK: Okay. But not the light switch? Was that it? All right.

MS. CLARK: You testified that you saw no blood on the carpet and no blood on the bedspread; is that correct?

MR. NEUFELD: Objection, misstates the testimony.

THE COURT: Overruled.

PROF. MACDONELL: I didn't observe those--the carpet until much later. The photographs of the carpet I observed and the bedspread, but I didn't observe the bedspread itself.

MS. CLARK: So you observed photographs of those items, correct?

PROF. MACDONELL: That is correct.

MS. CLARK: You have testified, sir, previously, that the absence of blood does not necessarily mean that there is non-participation in the crime; isn't that correct?

PROF. MACDONELL: Absence of blood on a person, yes.

MS. CLARK: Well, how would that blood, sir, in your opinion, have gotten to the bedspread or the carpet if not from the person of the murderer?

MR. NEUFELD: Objection, argumentative.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Yes.

MS. CLARK: Sir, if you were to see blood on the bedspread or on a carpet in the room of the murderer, you would expect that that would come from the clothing or the body of the murderer itself, would you not?

MR. NEUFELD: Objection as to her characterization using the word "Murderer."

THE COURT: Overruled.

PROF. MACDONELL: Again I would expect to see transfers if you have blood on something and you touch something else, but I can't do more than speculate that if a person has blood on them and they get into a room, they may transfer it when it isn't there.

MS. CLARK: Sir, the question I asked you was a very simple one. If you see--if a murderer commits a murder, gets blood on him, then goes back to his room, the mechanism of transfer, if you find blood in the room, would be himself, his clothing, his body, correct?

PROF. MACDONELL: Yes.

MS. CLARK: You have previously testified, sir, that the absence of blood on a perpetrator does not indicate non-participation in a violent act, correct?

PROF. MACDONELL: That is correct.

MS. CLARK: And when we discussed this before, you indicated as well that although attorneys may want to argue that the absence of blood on a--on their client indicates that he did not commit the bloody act, you have advised them that that is not the case, that that is a misconception, have you not?

MR. NEUFELD: Objection, argumentative and irrelevant as to what he advised other lawyers.

THE COURT: Overruled.

PROF. MACDONELL: I have said that there are exceptions to every rule. It is possible to commit a crime and not get blood on you. Most often you will see clothing that has no blood on it and assume that the person did not participate, but we would rather explain seeing the blood and trying to establish the mechanism it got there and speculate why it did, not but that is the basis of that article.

MS. CLARK: Which is that you must interpret what you see and not what you do not see?

PROF. MACDONELL: Correct.

MS. CLARK: And in that article, sir, do you not say--

MR. NEUFELD: Your Honor, I'm going to object as beyond the scope.

THE COURT: Sustained.

MS. CLARK: Sir, isn't it true that people will wear, in your experience, protective clothing, such as gloves, to prevent getting blood on them?

MR. NEUFELD: Objection, beyond the scope of the direct and--

THE COURT: Sustained.

MR. NEUFELD: Redirect examination.

THE COURT: Sustained.

MS. CLARK: Isn't that--

THE COURT: Sustained.

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

MS. CLARK: Nothing further--I have nothing further.

MR. NEUFELD: Your Honor, I have two questions but I would like a side bar first before I ask the questions, and I want to finish the witness this morning, if we may.

THE COURT: As would I.

MR. NEUFELD: Thank you.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the side bar. Mr. Neufeld.

MR. NEUFELD: Yes, your Honor. It is our position that--that Miss Clark's hypothetical on recross about the blood being wet while the socks were lying on the floor in Mr. Simpson's room opens the door to MacDonell's testifying about the drying time of blood, because she is putting out the suggestion that it would still be wet. It is this witness' opinion that it wouldn't be wet. As a matter of due process we have the right to rebut her argument, and if we can't rebut it, our hands are tied and Mr. Simpson is unable to, under the confrontation clause, under the due process clause, put on a defense to this suggestion put forth by the Prosecution.

THE COURT: Miss Clark.

MS. CLARK: No, your Honor. A hypothetical that does not implicate the sock drying experiment does not allow them to get into that sock drying experiment which is properly ruled to be irrelevant because of such--of such lack of similarity. The reason that sock drying experiment was inadmissible is because of its lack of substantial similarity and that reason still applies. We don't have similar conditions that are required for its relevance. It is not relevant and that is why I posed a hypothetical. Counsel is entitled to counter that with his own hypothetical. That is fine. And the hypothetical that counsel obviously counters with and has gone into at length already is that if the stains are already dried, then it could not have occurred in that fashion, and that is the appropriate method. But to go into an experiment that was properly ruled irrelevant because no effort was even made, admittedly not made, to replicate the conditions, has no basis in fact at all and no basis in law.

MR. NEUFELD: I'm not going to ask him about the sock drying experiment. He is going to base his opinion based on his forty years' of expertise in drying times.

MS. CLARK: That is again the same problem, even worse.

THE COURT: All right. The Court's previous rulings stands.

MR. NEUFELD: Okay.

(The following proceedings were held in open court:)

MR. NEUFELD: May I?

THE COURT: Thank you, counsel.

FURTHER REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Professor MacDonell, the Prosecutor asked you about whether or not you had done any experiments on the socks to test for the perspiration at any earlier time. Are any such experiments possible?

MS. CLARK: Objection. That calls for speculation, your Honor.

THE COURT: Overruled.

PROF. MACDONELL: Certainly they are possible.

MR. NEUFELD: What would the experiment be?

PROF. MACDONELL: You would have to get someone exerting themselves to the point where they perspired profusely to soak through from the inside to the outside of the sock.

MR. NEUFELD: In addition to experiments, sir, can somebody who is trained make an assessment on whether or not those socks were soaked in perspiration at about the time that the blood was put on them?

MS. CLARK: Objection. That calls for speculation.

THE COURT: Overruled.

MS. CLARK: Beyond the scope of his expertise, your Honor.

PROF. MACDONELL: Yes.

THE COURT: Overruled.

MR. NEUFELD: And did you do that, sir?

PROF. MACDONELL: I examined the photograph again which showed very clear staining and no evidence of dilution or diffusion.

MS. CLARK: Objection. That is speculation again, beyond his expertise.

THE COURT: Overruled. Overruled.

MR. NEUFELD: And had there been extensive perspiration, would there be evidence of diffusion?

MS. CLARK: Objection. Speculation, your Honor.

THE COURT: Overruled.

MS. CLARK: No foundation.

THE COURT: Overruled.

PROF. MACDONELL: I would expect to see it, yes.

MR. NEUFELD: Miss Clark just asked you another question about socks being taken off when they are wet in the bedroom. From what you know about the case and your observations of the socks, sir, do you have any reason to believe that the socks were wet at the time they were removed in that bedroom?

MS. CLARK: Objection, objection.

THE COURT: Sustained.

MR. NEUFELD: Nothing further, your Honor.

THE COURT: Anything further?

MS. CLARK: Nothing further.

THE COURT: All right. Mr. MacDonell, thank you very much. You are excused. Ladies and gentlemen, we will take our recess for the afternoon session. Please remember all of my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until 1:00 P.M. and counsel, if you recollect, we have an early recess today at 3:45 for a juror appointment, but we do have some legal issues to take up.

MR. COCHRAN: May we approach on one matter, your Honor?

THE COURT: Sure. All right. Let's clear.

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

(The following proceedings were held in open court:)

(At 12:05 P.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 1, 1995 1:40 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. All right. Are we ready to proceed with the next witness?

MR. NEUFELD: Your Honor, as I mentioned to you yesterday, because of the matter involving Tracie Savage and Michele Kestler, the only other testimony we have this afternoon will be the reading of the Grand Jury testimony of Mr. Peratis and then playing the videotape of the preliminary hearing testimony of Mr. Peratis, and then we will resume with live testimony tomorrow morning with Dr. John Gerdes. I need to know from you though, because I have to get Mr. Scheck here, when do you want to hear argument on that contamination motion? I'll have someone call where he is. He's over on the west side of town. He can be here in 30 minutes. But I asked you before to make that the last order of business as opposed to the first.

THE COURT: I would suggest that we do it after we've concluded all the other matters today, this afternoon.

MR. NEUFELD: Okay. All right.

THE COURT: And from my recollection of the tape recording or the Grand Jury testimony, that probably will only take what, eight or 10 minutes?

MR. NEUFELD: I think there are two gentlemen who will read the Grand Jury testimony, which should take I would say less than three or four minutes, and then the playing of the tape, which will take less than 10 minutes, and then I believe you have the Bosco matter and then we would have Mr. Scheck and Mr. Clarke on the contamination.

THE COURT: On the Gerdes matter. All right. Sounds like a plan.

MR. NEUFELD: Is that consistent with--okay.

THE COURT: How do you propose to proceed at this point then?

MR. COCHRAN: Well, your Honor, I would propose that we need someone to play Marcia Clark, your Honor, and I searched all around and I came up with Mr. Douglas who will do that I believe, and Mr. Scheck will be Mr. Peratis, the nurse. Well, Mr.--strike that. Mr. Blasier, Bob Blasier will be Mr. Peratis.

THE COURT: All right.

MR. COCHRAN: We're ready to proceed if you are, your Honor.

THE COURT: All right. Mr. Goldberg.

MR. COCHRAN: From the witness stand? Why don't we take the--that's fine.

MR. GOLDBERG: Your Honor, I don't know whether they were planning on breaking before supposedly playing this tape of the preliminary hearing, but obviously that would be something that would have to be screened. We don't know whether there are television commentators interrupting it. And of course, the People would object to the using of the videotape at all since that is not the official court record. The official court record is the written transcript, and there is no exception that I am aware of that would allow a videotape that was created by a third party who is not an Officer of the Court, that kind of evidence to be allowed in without any foundation.

THE COURT: All right. Who wants to address the use of a videotape for the purpose of prior recorded testimony? Mr. Goldberg, are you indicating to the Court that you have not seen this tape recording before?

MR. GOLDBERG: I haven't seen what they propose to play to the jury.

MR. SHAPIRO: Your Honor, since this is--

THE COURT: I'm sorry. How many lawyers are we going to have talk about this?

MR. SHAPIRO: I am.

MR. COCHRAN: He's on this issue, your Honor. He was there.

THE COURT: All right.

MR. SHAPIRO: Your Honor, Miss Clark called as a witness at the preliminary hearing Mr.--Doc--Mr. Nurse Peratis, and I cross-examined him. It was in the courtroom setting. It was under oath. It was done under the same settings that you have here, and I don't think there is any question whatsoever of the accuracy of the--I'm sorry. Miss Clark is trying to say something?

MS. CLARK: I'm listening to Mr. Goldberg.

MR. SHAPIRO: I'm sorry. I thought you were whispering to me. Excuse me. That I don't think there is any objection unless Miss Clark wants to represent to your Honor that those questions that she asked or the answers that were given by Mr. Peratis are not accurate. Clearly, this is the best way for the jury to see exactly what has happened in the testimony. This is live testimony under oath and it is much better than the transcript because the words are not coming from people who are reading the words. The words are coming from the witness just as if you did a videotaped deposition. So I think this is an--an issue that--

THE COURT: You're trying to say it's the form over substance objection is what you're trying to say.

MR. SHAPIRO: Exactly. Exactly. Thank you, your Honor.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Well, it isn't a form over substance issue. I mean, we may arrive at the time where we commonly use videotapes maybe--hopefully in addition to court reporters for the purposes of recording what happens in the court, but we have not arrived at that point yet.

And in instances where videotape has been authorized by the Court, if it had been authorized by the Court, what your Honor would have undoubtedly directed the videographer to do would be to exclusively photograph the witness. But since the only photography we have of these proceedings is done by people who are not within the Court's direct control, they sometimes show the witness, they sometimes show the attorney, they sometimes pan over to the Defendant to capture his reaction or the reactions of other people that are sitting at counsel table and occasionally pan over to your Honor to capture the Court's reaction. All of those kinds of things would be things that the Court would not permit if the videographer were under the Court's direct control, their editorializations of what is happening in court that are not proper. And I think that this whole issue is more significant than simply relating to the question of Thano Peratis' testimony because I would assume, as perhaps has already been brought to the Court's attention, that one or both of the parties might want to use videotaped portions of the trial in closing argument.

I think we get into some of the same problems there as well, given that we do not have an official record and we have a situation where we don't know exactly who the camera was focusing on unless we have previewed that particular video snippet. And we also have times I believe, although I'm not positive, where not everything has been captured on tape with respect to a single witness, where the organization, news organization may have interrupted for television commercials. I'm not a hundred percent positive that every single witness, a hundred percent of that witness' testimony is on tape. So there are some problems that this presents further down the road when we get to closing argument as well, your Honor.

THE COURT: All right. Let's look at the--I had not contemplated the various editorial issues, what the videotape actually shows and how much is actually Mr. Peratis and how much is extraneous matters. So this tape is only about eight or 10 minutes. Let's see the tape.

MR. NEUFELD: The tape you are going to see, your Honor, has the one redaction as ordered by the Court; that there was one objection made by Marcia Clark which was sustained by the Court. Otherwise, it is the verbatim tape.

THE COURT: All right. Let's see it.

(At 1:45 P.M., a videotape was played.)

(At 1:55 P.M., the playing of the videotape was concluded.)

THE COURT: All right. Mr. Bancroft, were you the videographer on that?

MR. BANCROFT: Yes, your Honor.

THE COURT: All right. All right. The Court has observed the videotape, which I think we should mark Defendant's next in order if we have not already.

THE CLERK: 1283.

THE COURT: 1283.

(Deft's 1283 for id = videotape)

THE COURT: And, Mr. Goldberg, do you have any further argument in opposition to the use of the videotape?

MR. GOLDBERG: Your Honor, the problem with the videotape, as the Court may have noticed in particular, is that a couple times, it pans over to the Defendant. Of course, it also pans over to the attorneys, although I'm not certain that that particular feature is prejudicial to us per se in this particular instance. Showing the Defendant may be--similarly, showing the victim's family may be somewhat prejudicial or at least unnecessary as far as the Defense is concerned. So if the Court were inclined, and we think that the Court should if this videotape is going to be used, cut out the pans to the Defendant, that it would also be fair to cut out the pans to the audience as well. I don't think that the People as a tactical matter are particularly prejudiced if the Court were to make those deletions in showing this videotape. But the concern that we do have is that if the Court allows this videotape, the Court will allow other videotapes and we will always be confronted with the same kinds of problems that the Court saw here. For example, if in the closing argument they were to be used and the Defense were to say, "Well, look at how this witness reacted when they were asked such and such and look at his demeanor," and then the People wanted to put that into context by showing some other snippet, but that snippet was either not captured at all or during that part of the testimony, they were panning to the Defendant or to one of the attorneys, that would be simply be fundamentally unfair and it would not give us the opportunity, or if we were to do it, would not give the Defense the opportunity necessarily to try to use the remaining portions of the videotape to place into context.

THE COURT: Well, that's a different issue, counsel. Let's concentrate on this.

MR. GOLDBERG: Well, because I'm concerned, I'm very concerned that this is going to set a precedent and that if the Court is going to allow this videotape, and not notwithstanding--

THE COURT: Well, there's a huge difference between allowing something as substantive evidence and allowing its use in argument; don't you think?

MR. GOLDBERG: I think that there's a difference, but the principal is the same. And that is, what can we use when we are quoting the Court record and the Court transcript, what is the appropriate medium that we are using. Is it a videotape or is it what has always historically been, that is what the court reporter has generated. So the underlying principal is the same.

And, therefore, we are concerned that if the Court rules today that for evidentiary purposes, we can use the videotape, that the Court is going to rule the same at the time of the closing arguments and suggest that for argument, we could also use the videotape. So my point is, your Honor, although I don't think that the Prosecution is necessarily prejudiced in this instance through the use of this tape, even though legally it probably isn't authorized, we are not prejudiced if the deletions that I referred to are made. We still are very concerned that this precedent might allow the Court to then allow either party or both parties to use videotaped segments in the closing argument that could be prejudicial to both sides.

THE COURT: All right. Well, Mr. Goldberg, you should rest assured that I see those as separate and distinct issues. All right. Mr. Shapiro, any further comment?

MR. SHAPIRO: Your Honor, I think the videographer captured the demeanor of the witness that you would not get if the testimony was read by parties portraying their testimony. The jury when they sit in the courtroom not only sees Mr. Simpson and the lawyers, but sees the audience. I saw no reactions that are unusual either from Mr. Simpson or from the Goldman family, and we have no objection and think the best way for the jury to Judge this witness, this witness' credibility and what this witness is called to testify for on behalf of the Defense is fairly and accurately best depicted by this video. Thank you.

THE COURT: All right. Thank you, counsel. I agree. I think one of the most important things is for a jury to see as well as hear a witness testify, and this is one of the advances in technology that has beneficial to the truth finding process. So I'll allow the use of the videotape. If the Prosecution has any discrepancies from the official court transcript that they want to challenge with during their presentation of their case in rebuttal, they're entitled to do so. All right. Let's have the jury, please.

MR. GOLDBERG: Is the Court not going to edit either?

THE COURT: No.

MR. NEUFELD: Can I call Mr. Scheck and tell him to get--

MR. COCHRAN: Does your Honor have a copy of the Grand Jury transcript?

THE COURT: I should have.

MS. CLARK: Your Honor, does the Court have the instruction to read to the jury concerning admissibility of the testimony?

THE COURT: No, I don't.

MS. CLARK: May I get it for you, your Honor?

THE COURT: Which Caljic is that? I'm sorry. I forgot about that.

MR. COCHRAN: Talking about a witness being unavailable. We'll get that.

MS. CLARK: I think it ought to be given to the jury now if I can pull it.

MR. COCHRAN: May I go back in your chambers and get a copy of it?

MS. CLARK: May I assist Mr. Cochran?

THE COURT: You may.

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

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

(Brief pause.)

THE COURT: Thank you. All right. Ladies and gentlemen, good afternoon. Sorry for that short delay. We are now going to present to you testimony from a witness who is presently unavailable, but who has presented testimony in other proceedings. (Reading)

You are instructed that testimony given by a witness at a prior proceeding who is unavailable at this trial will be presented to you both in the form of a videotape of that witness' testimony at the preliminary hearing and from the reporter's transcript of that proceeding. You must consider such testimony as if it had been given before you in this trial. All right. Let's proceed. All right. Which matter do you wish to present first?

MR. COCHRAN: Grand Jury.

THE COURT: All right. This will be the Grand Jury testimony from June the 22nd, 1994; is that correct?

MR. DOUGLAS: Yes, your Honor.

THE COURT: And, counsel, Mr. Blasier, you are going to read the part of the witness; is that correct?

MR. BLASIER: I am, your Honor.

THE COURT: And, Mr. Carl Douglas, you are going to play the part of the examiner, Miss Clark; is that right?

MR. DOUGLAS: I'll try, your Honor. Yes.

THE COURT: All right. You may proceed.

MR. DOUGLAS: First, the oath, your Honor from the Foreperson?

THE COURT: Yes.

MR. DOUGLAS: (Reading) Thano Peratis, please raise your right hand.

THE COURT: Excuse me. Let's start--no. We start with--you don't need to do that. Let's start with, "Miss Clark: People call Thano Peratis."

MR. DOUGLAS: Thank you, your Honor. (Reading) The People call Thano Peratis. We have to add him to the list. T-H-A-N-O P-E-R-A-T-I-S. The Foreperson then says: (Reading) Thano Peratis, please raise your right hand. You do solemnly swear the testimony you are about to give in the matter now pending before the Grand Jury of the County of Los Angeles shall be the truth, the whole truth and nothing but the truth, so help you God?

MR. PERATIS: I do.

THE FOREPERSON: Please be seated. Mr. Peratis, please state and spell your full name, speaking directly into the microphone.

MR. PERATIS: Thano M. Peratis, T-H-A-N-O M. P-E-R-A-T-I-S.

FOREPERSON: (Reading) Thank you. You may proceed.

MISS CLARK: Thank you. Tell us what you do for a living, Mr. Peratis.

MR. PERATIS: I'm a registered nurse.

MISS CLARK: Where do you work?

MR. PERATIS: Parker Center jail.

THE COURT: Excuse me, counsel. Will you gentlemen slow down, please.

MR. DOUGLAS: Surely.

THE COURT: Thank you.

MR. DOUGLAS: (Reading)

MISS CLARK: As a registered nurse, do you have some training?

MR. PERATIS: Sorry?

MISS CLARK: Do you have a hard time hearing me, sir? Can you hear me now?

MR. PERATIS: Yeah. That's better.

MISS CLARK: What is your training to become a nurse?

MR. PERATIS: I went to nursing school.

MISS CLARK: Did you receive a degree as a registered nurse?

MR. PERATIS: Yes, ma'am.

MISS CLARK: As such, are you qualified to remove blood from people in a medically-approved manner?

MR. PERATIS: Yes.

MISS CLARK: And that part of the duties you perform--

THE COURT: Excuse me, counsel. Reread that, please.

MR. DOUGLAS: (Reading) question: Is that part of the duties you perform as the nurse at the jail dispensary at Parker Center here in Los Angeles County?

MR. PERATIS: Yes, it is.

MISS CLARK: And on June 13th, 1994, were you working that day, sir?

MR. PERATIS: Yes, ma'am.

MISS CLARK: At Parker Center in your usual capacity as a registered nurse?

MR. PERATIS: Yes.

MISS CLARK: Were you requested to remove blood from the arm of a person by the name of Mr. Orenthal James Simpson?

MR. PERATIS: Not quite with that. The initials were OJ Simpson. Yes.

MISS CLARK: Did you remove a blood sample from that person?

MR. PERATIS: Yes, I did.

MISS CLARK: On June 13?

MR. PERATIS: Yes.

MISS CLARK: I will show you People's 23, and you tell me if that's the person you removed blood from.

MR. PERATIS: Yes, it is.

MISS CLARK: Can you describe for us what is the method by which you removed blood from Mr. Simpson?

MR. PERATIS: I put a tourniquet on his arm, cleaned the sight with aqueous zephiran and put a 10-cc syringe with about a no. 20 needle in the vein in his arm and I withdrew about 8 cc's of blood. And I then put the blood into a test tube that had a preservative called EDTA and then handed it to the officer, to the detective and then put a dressing on him.

MISS CLARK: On the arm?

MR. PERATIS: Yes.

MISS CLARK: Approximately how much blood did you remove?

MR. PERATIS: Approximately 8 cc's.

MISS CLARK: And the manner in which you removed that blood, did it avoid any contamination of the blood?

MR. PERATIS: Oh, definitely.

MISS CLARK: And the manner in which you packaged it, was it also sealed to prevent any contamination?

MR. PERATIS: Yes, ma'am.

MISS CLARK: Did you then put it in some kind of a package?

MR. PERATIS: I handed it to one of the detectives who put it into a large gray envelope.

MISS CLARK: Did you hand it to Detective Phillip Vannatter?

MR. PERATIS: Vannatter, yes.

MS. CLARK: I have nothing further.

THE COURT: All right. Thank you, gentlemen. All right. Ladies and gentlemen, we are next going to exhibit to you a videotape of Mr. Peratis' testimony during the preliminary hearing. You will notice that there is one blip in the tape. It is an edit of some material that I ordered removed from the tape before it was played to you. So if you see that blip, that's what that is. All right. And Mr.--who's presenting this? Mr. Shapiro?

MR. SHAPIRO: Yes.

THE COURT: We need a statement regarding date and time of the proffered evidence.

MR. SHAPIRO: Yes, your Honor. We called as a witness July 7th, 1994 at the preliminary hearing in this matter witness Thano Peratis.

THE COURT: July 7 as a Prosecution witness.

MR. SHAPIRO: I'm sorry. The Prosecution called as a witness at the preliminary hearing.

THE COURT: All right. July 7.

MR. SHAPIRO: And called by Miss Clark, was cross-examined by myself.

THE COURT: All right. Let's proceed.

MR. SHAPIRO: Thank you, your Honor.

(At 2:12 P.M., Defendant's exhibit 1283, a videotape, was played.)

(At 2:22 P.M., the playing of the videotape was concluded.)

THE COURT: All right. Let me see counsel without the reporter, please.

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

(The following proceedings were held in open court:)

THE COURT: All right. Ladies and gentlemen, I have a matter that I need to take up out of your presence with the attorneys. Let me ask you to step back in the jury room, and we'll summon you out shortly.

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

THE COURT: All right. Let the record reflect that the jury has withdrawn from the courtroom. Mr. Harris, would you tender the videotape to Mrs. Robertson.

MR. HARRIS: Yes, your Honor.

THE COURT: We'll mark the transcript of the Grand Jury testimony of June 22nd, 1994 as Defense exhibit next in order, 1284, and the videotape will be marked Defense 1285.

THE CLERK: It's marked 1283.

THE COURT: I'm sorry. 1283? Thank you.

(Deft's 1284 for id = GJ transcript)

THE COURT: All right. Mr. Shapiro.

MR. SHAPIRO: Thank you very much, your Honor. Your Honor, the next witness we would like to call is Mr. Joseph Bosco. We would like to call him for a very, very specific and limited purpose only. I talked to Mr. Bosco last week before he was subpoenaed. He agreed to accept service of subpoena and agreed that the article that he had published--that he had written that was published in penthouse magazine in the July issue truly and accurately reflected a discussion he had, and the relevant part of that article that we wish to present to the jury is as follows: That, "There has been enough leaking out there to sink camp OJ if it were on a barge by the Defense and the Prosecution alike. But both are pikers compared to the Los Angeles Police Department.

"It began last summer with the LAPD passing out 911 tapes to journalists as if they were courtesy trinkets welcoming them to town and reached its nadir with the, quote, DNA sock match story. "Of the latter, I know this. Within two hours of Judge Ito admonishing the police for, quote, reckless disregard of the truth, LAPD's worse moment to that date, a certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration started calling journalists with the story that blood on the socks found in OJ's bedroom was a DNA match with Nicole's. This time, however, the officer offered no corroboration and became angry and defensive when asked. "A number of journalists turned him down. Apparently KNBC did not and the rest is ugly history for both the press and the LAPD." We will call him only for the limited purpose of presenting to this jury the relevant testimony that the disinformation that was given was from a badged member of the Los Angeles Police Department who was acting in official capacity and for no other purpose.

THE COURT: He was acting in an official capacity?

MR. SHAPIRO: Well, he was acting as a--was an active member of the police department.

THE COURT: All right.

MR. SHAPIRO: I don't think he can say that he was acting in an official capacity, but he was acting as a police officer, and that would be the limited purpose only of calling him.

THE COURT: All right. Have you consulted with his counsel?

MR. SHAPIRO: Yes, I have, and they have no objection with that limitation.

THE COURT: All right. And do we have Miss Osinski now present?

MR. SHAPIRO: Yes, she is.

MS. OSINSKI: Good afternoon, your Honor.

THE COURT: All right.

MS. OSINSKI: I'm sorry. I was not privy to the conversation that just took place.

THE COURT: All right. Mr. Shapiro has just made an offer to the Court of his purposes for calling Mr. Bosco. And, Mr. Shapiro, would you repeat that for Miss Osinski's benefit, please?

MR. SHAPIRO: Yes. As I discussed with Miss Osinski and Mr. Bosco, the limited purpose of calling Mr. Bosco is to authenticate an article that was published in penthouse magazine that was offered by him that concerns information or disinformation if you will that was given to him by a member of the Los Angeles Police Department regarding a match of DNA. For that purpose and for no other purpose.

THE COURT: All right. Miss Osinski, what is the position of your client?

MS. OSINSKI: Your Honor, our position is, and it's in our papers, that Mr. Bosco is covered by the shield law. He would testify only as to published information. Basically that would be that he's the author of the article, he's familiar with the article and that it's a true and fair representation or account of what was said to him. Other than that, he was--he will not testify as to any other information that is not published information as found in that article. And it's my understanding that Mr. Shapiro has indicated that they are willing to limit their questioning to that area. However, I have had no representation from the Prosecution that they are also willing to limit their--any questions that they may have to that area. And, therefore, I think that--unless we have a stipulation to that effect, I think we need to have a discussion of the issues of the shield law and/or actually make a decision on Mr. Bosco's testimony, if it will be restricted or not because we will be asserting the shield law as to any questions other than those about published information.

THE COURT: All right. What's the People's position?

MR. GOLDBERG: Your Honor, first of all, counsel is sort of--seems to be trying to ambush the People again because they know that this whole issue of leaks was subject to two motions that the People wrote, one for Michele Kestler and one on the issue of the leaks themselves. The Defense has written a formal points and authorities which has been argued by Mr. Uelmen, it's been argued by myself, and they had previously represented that this testimony was going to be presented in a 402 type hearing as part of the considerations and the issues that were in front of your Honor right now as to whether or not you were going to allow any evidence of the so-called leak to be presented and also whether you were going to allow Michele Kestler to be cross-examined as to that. So now all of a sudden, they say they want right now to put this on in front of the jury and they have previously not made that representation to the People. I think that all of these issues are currently--

THE COURT: All right. Before--

MR. GOLDBERG: --under submission to the Court. Also, I don't think this witness is on their witness list. Excuse me?

THE COURT: All right. Go ahead.

MR. GOLDBERG: Your Honor, as to the substantive issues--and I don't believe we should be arguing the substantive issues yet because it's premature, and the Court should first make that ruling that the Court said it was going to as to whether or not there is relevancy to this whole issue of the so-called leaks at all, which is also a predicate towards determining whether or not the shield law applies. But if the Court were to somehow--and I don't think the Court should do this. I hope your Honor will not do this--somehow put those issues aside and in effect put the cart before the horse and now introduce this testimony before having ruled as to relevancy, which your Honor took under submission, I'd like to make the following substantive comments. First of all, under the Defense's own theory, they had stated that as to the issue of evidence planting--and they articulated this and I previously argued this to the Court--that leak information would only be relevant if it was made by someone in the Scientific Investigations Division who participated in analyzing the socks. They said that. I gave that direct quote to the Court previously. I don't have their points and authorities down with me right now, but they specifically stated that in framing the issues. Obviously we concede that if some police officer somewhere, if it indeed was a police officer, found out information, obviously it would be secondhand--let me--let's try to make this concrete. Let's envision a police officer who happens to work in Parker Center and overheard--I'm making up a scenario just for illustration purposes--overheard Detective Lange and Detective Vannatter talking in the elevator, and they said that there had already been DNA testing on the socks and this police officer immediately ran to the phone and leaked this information to Mr. Bosco or maybe he misunderstood the information that he overheard. What would the relevance of that be? What would the relevance be that this officer, Officer X had overheard this information and had leaked it? It doesn't go to the issue of planting. It doesn't go to any of the issues that the Defense claim to be relevant and it isn't relevant under the theories that they've specifically articulated in their written papers in front of the Court. It just doesn't have anything to do with this case whatsoever.

We have argued that even if it were an SID criminalist who was involved, it wouldn't be relevant to this case because it does not tend to show that that person was involved in planting evidence on the socks. But if it's just some police officer, it's far more tenuous. So it is impossible to conceive of any relevant theory of this evidence. Okay. Next. Let's say Mr. Bosco gets up on the witness stand and merely authenticates this article, which is what Mr. Shapiro is suggesting be done. First of all, this article has numerous conclusions and opinions in it that are not relevant and not admissible. For example, the opinions that there have been numerous leaks by both sides and that the Los Angeles Police Department makes the other sides appear to be pikers. And most importantly, he says that this leak was to journalists, that he started calling journalists with the story. So we know for certain that what Mr. Bosco is referring to here is, he is referring to conversations that presumably he has had with other journalists. So we know that at least part of the story is predicated upon double hearsay. In other words, what journalists represented to him, this police officer represented to them. What we don't know is whether all of the story is predicated upon hearsay. In other words, we can't be sure simply upon reading these paragraphs that were read into the record whether simply part of the story is predicated on double hearsay or whether their entire story is predicated upon double hearsay. So we have a hearsay problem that appears to be insurmountable. The next problem that we have legally with this story is, we have an authentication problem. Let's imagine that this conversation with Officer X, if there was a conversation, took place over the phone. What the Court would require is the Court will require, in order for that conversation to be admissible, the witness who was testifying to the conversation to authenticate the conversation by saying, "I spoke to Officer X. I recognized his voice because I've spoken to him on numerous occasions in person and I recognize the voice over the phone to be the same as that which I've heard in previous conversations. Further, I know this individual to be a police officer with the Los Angeles Police Department because I've seen his badge and his identification, because I've seen him in uniform," or however the case may be.

But the point is is that authentication would be required, and we don't have any authentication whatsoever here stated in this article. We don't have anything that comes close to being authentication. And then finally from a legal perspective, the People have a right to cross-examine any witness that gets up on the witness stand that is offered by the Defense. And although it has been said that the shield law is not a privilege, it clearly is analogous to a privilege and some people have characterized it as a privilege.

THE COURT: I think the case law is pretty clear that all it is is immunity from being held in contempt. That's all it is.

MR. GOLDBERG: Well, yeah. It's been characterized as being immunity from being held in contempt, and then there's some case authority to indicate that independent of the shield law, there's also some sort of first amendment constitutional right to protect confidential information and news sources that could be conceivably analogized to a privilege. But the point is, your Honor, if a witness were to get up on the witness stand and testify, they have waived any privileges that they have to the full extent of relevant cross-examination. For example, let's say a Defendant gets up on the witness stand and testifies in the case and the People want to ask about 1101(B) type evidence relating to a pending criminal charge.

THE COURT: This is not real relevant, counsel.

MR. GOLDBERG: Well, no. I'd like to explain it, your Honor. Obviously this is extremely important to the People and we would like the opportunity to be heard on all the relevant legal issues.

THE COURT: Well, discussing it, an indirect analogy of cross-examination of a Defendant on 1101(B) evidence is an interesting issue--

MR. GOLDBERG: Well, the point--

THE COURT: --but it has nothing to do with this issue.

MR. GOLDBERG: No. But we have California case law that says that we can cross-examine even if the Defendant invokes their fifth amendment privilege as to the pending charges because he has waived his privilege to the full extent of relevant cross-examination. And I don't see why that same rule wouldn't be equally applicable in the context of the so-called shield law whether you're going to call it a privilege or an immunity, that once that witness has gotten up on the witness stand and has testified to anything voluntarily, that the other side has the right to cross-examine him to the full extent of relevant cross-examination, and, therefore, any privilege or immunity that he would otherwise have has been waived to the full extent of relevant prosecution.

THE COURT: But your analogy fails because neither Mr. Bosco nor Miss Savage are here voluntarily. Both have filed motions to quash subpoenas. I mean that's a huge difference in that thought process.

MR. GOLDBERG: It's been represented though that Mr. Bosco would be willing to authenticate this article voluntarily. And if he did that, our position is that we get to cross-examine him to the full extent of relevant cross-examination. So he can't get up on the witness stand and says: "Well, everything I say in here is true. "Well, Mr. Bosco, how do you know that this person was a police officer? "I invoke the shield law. "Have you ever talked to this person in person before? "I invoke the shield law. "Did you recognize his voice?

"I invoke the shield law." We have to be allowed to cross-examine. The Court couldn't permit a situation to stand where a witness got up on the witness stand and testified to certain information and then foreclose the cross-examiner from cross-examining that individual to the full extent of the relevant cross-examination that was opened by his direct testimony. And that's my point your Honor. Let me just take a look at this note to see if there's something else that I wanted to bring up.

(Brief pause.)

MR. GOLDBERG: I'd just point out on the hearsay issue that I previously mentioned that there's obviously no fundamental indicia of reliability or trustworthiness to this article itself.

THE COURT: In fact, wouldn't you say quite the contrary given the result?

MR. GOLDBERG: Well, yes, clearly. And aside from the results, your Honor, there is the issue of whether other journalists would be revealing their sources to a fellow journalist in such sufficient, specific detail that he could tell that they were all referring to the same police officer. So there's a lot about this that is unreliable. So in sum, your Honor, we would ask the Court, as the Court has previously ruled, to take under submission the issue of relevancy and to first make a ruling as to whether that initial threshold requirement has been met. Then and only then, if the Court has made that ruling, do we then need to sort through some of these other very difficult legal issues relating to hearsay, relating to authentication and relating to the right of the People to cross-examine the witness who is authenticating this kind of material.

THE COURT: All right. Mr. Shapiro.

MR. SHAPIRO: Thank you very much, your Honor. The first issue is whether or not Mr. Bosco can be called to testify and whether or not he can invoke the shield law to prevent his testimony. He has already indicated to me and his counsel has indicated to me that as a result of his previously published article, to that extent and to that extent only, he has no legal right to exert the shield law and, therefore, that testimony is not protected testimony. Thus, we are limiting our inquiry within the scope of the privilege.

We are not going to call Mr. Bosco or ask him anything that would be covered by the shield law potentially, and that's all his counsel has suggested. His counsel has not suggested that the People be prevented from cross-examining, nor would I ever suggest that. They can cross-examine on evidence and on material that is relevant to the direct examination. But they cannot go beyond that. And that's all we're saying. They could certainly make every inquiry they want as to whether or not Mr. Bosco was assured that the person he was talking to was a police officer, that he knew he was a police officer. That's an issue, and there will be no objection. The question is the identity of that person, and we have told Mr. Bosco and his counsel and your Honor that for these--for the purpose of this witness, we are not going to make that inquiry. So the arguments made by Mr. Goldberg in that regard are without merit. The second argument, that it's hearsay, is an argument that the Court addressed and dismissed I think very quickly; and that is, this is not being offered for the truth of the matter asserted. Quite the contrary.

It's been offered to show that it was not true and it was put out as some type of disinformation to show that there was in fact a match when Miss Clark told your Honor in court there was no DNA match. And then the next day, that was reported by reporter Savage, that there still was a match and that was still coming from a reliable source. And our intention now is to demonstrate to the jury for their consideration the following facts: That prior to any DNA analysis, a member of the Los Angeles Police Department who had previously had contact with Mr. Bosco, who had previously given him corroborative information and information reliable enough so that Mr. Bosco would go ahead with this story was told, according to Mr. Bosco, that the evidence on the sock of blood was a match, and that's what he reported. We know that--we know that was not true because Miss Clark came to court the very next day and on the record told your Honor that was not true, there was no DNA match since no DNA testing had taken place yesterday. That night again, after the Court made a very stern admonition and made its feelings known, that there had been no DNA analysis, that reporter Savage again reported that story.

This is something now for the jury to decide, was this a self-fulfilling prophecy on behalf of the Los Angeles Police Department who gave this information we know to Mr. Bosco and hopefully we will be able to show with the Court's concurrence that this officer also gave this information to Miss Savage. And that is something for the jury to consider. It is relevant evidence. It is highly material evidence. It is not covered by any privilege. Mr. Bosco is not going to assert any privilege nor could he under the law. It's not that he's waiving anything. It is that if material is already published, it is not covered by the shield law. The shield law protects areas that have not been published. That is the very essence and purpose of that rule. So I think on every issue, it is very clear that the material that we seek is relevant, that Mr. Bosco will testify to it, that we will limit our testimony so that he in no way is being asked to invade any privilege of confidentiality and that the jury will then have relevant information before it to make a determination in this case. Thank you.

THE COURT: All right. Miss Osinski, do you have any brief response?

MS. OSINSKI: Yes, your Honor. Actually, Mr. Sullivan was prepared to argue this motion and we were told that we would be arguing before the Court at 4:00 today and he's on his way here. I feel this has been sort of sprung on us at the last moment, and I want to reiterate that Mr. Bosco will invoke the shield law as to any unpublished information. And I'd like to clarify something that Mr. Shapiro said. It's not areas of unpublished information or areas of--not covered by published information. It's actual unpublished information. The only thing Mr. Bosco will testify to is the accuracy of that article. He will not go beyond that article and he will not identify his source. It's a confidential source. I believe there's a declaration before the Court that accompanies our motion that indicates that. It's--the shield law will apply. And if he is asked any questions on cross-examination or any questions by--on direct examination by the Defense on any matter that is not specifically stated in the article, he will invoke the privilege.

And I think we're going to get into a little bit of an issue as to whether, you know, he can be forced to testify on those matters, and I think it's better to be resolved out of the presence of the jury than to put him on the witness stand and get into this in front of the jury, because I do believe there's going to be a problem. He will--his testimony we argue is very limited and very restricted and we certainly--I agree with Mr. Shapiro in that he cannot move to quash the subpoena based on published information, and he will testify as to that. But that's very limited. And certainly, what we've been advised is that he would only be asked about questions with regard to particular paragraphs in that article. Now the Prosecution indicates that they may be going into other areas of that article and it might involve opinions and conclusions. And, your Honor, that's--that's a whole another issue. As to--they cannot go into or we will--they can go into it. We would have Mr. Bosco invoke the shield law as to the basis for forming some of his opinions or his conclusions or how--anything that related to any conversations or contact they may have had with any persons in the article that's not expressly stated in the article, and it's--I think it's fine for Mr. Shapiro to say that he's going to limit his questioning or to published information. However, that does not take into account what the Prosecution may do or if Mr. Shapiro feels that based on a certain answer, he might want to go further, delve further into the article and into matters that are not published.

THE COURT: All right.

MS. OSINSKI: And, your Honor, if I may briefly ask that we be allowed to present a full argument on this issue at 4 o'clock when originally scheduled.

THE COURT: You don't think that was sufficient?

MS. OSINSKI: Well--

THE COURT: Are there any issues or defenses other than the shield law that you can raise to non-published information?

MS. OSINSKI: Well, there is the first amendment, your Honor, but I'm not prepared to discuss it at the moment because, as I say, Mr. Sullivan was preparing the argument in this matter and I was not.

THE COURT: All right. Well, I wish you had told me that you wanted to reserve that right rather than talking to me for the last 10 minutes or telling me you want to argue again.

MS. OSINSKI: Well, I was simply advised that Mr. Shapiro was discussing Mr. Bosco's testimony.

THE COURT: No. You should have started your comments by asking to continue the matter for hearing until 4 o'clock. That's how we should have started the conversation.

MS. OSINSKI: Well, I apologize to your Honor for that. I find myself in the middle of something and I do apologize, but I believe that Mr. Sullivan can better present the issues. He has been preparing to do that.

THE COURT: All right. Well, don't misunderstand me, Miss Osinski. You and Mr. Sullivan have appeared in court with very short notice, and I understand your need for time to prepare. But since now I'm going to have to hear these arguments twice from Mr. Bosco's counsel. All right. I agree that Mr. Sullivan, if he is the person who is prepared for the argument, I'll hear his argument at 4 o'clock since that was the time originally scheduled. Let me tell you what my tentative ruling is at this point. I'm going to allow Mr. Bosco to be called for the purpose of a 402 hearing, a foundational hearing, to determine, one, whether or not he is somebody who is covered by the shield law. That has to be established for the record. Then the discussion as to what it is the Defense wishes to glean from him from that article that he's willing to discuss and then whether or not either on direct or cross-examination by the Prosecution--if the question is asked who this individual was who provided him with the information, if he invokes the shield law, then I know that outside the presence of the jury, and then I will take this matter under submission likewise with the Tracie Savage situation because we'll be in the same boat as far as that is concerned. All right. Let's take a 15-minute recess, and then we'll discuss the Gerdes issue. Might as well use the time. Also, in the interim, I'm going to excuse the jury from further service until 9 o'clock tomorrow morning. All right.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. The record should reflect the jury has withdrawn for the afternoon, that we will take up the continuing shield law matters when counsel arrives at 4 o'clock, Mr. Sullivan on behalf of Mr. Bosco. So we'll use this time to take up the Gerdes matter. I have a motion by the Prosecution to prevent or restrict the testimony of Mr. Gerdes. And let me find that motion from the puffer that I have here.

(Brief pause.)

MR. SCHECK: Do you have our response?

THE COURT: Yes. All right. Let's proceed. All right. Mr. Clarke.

MR. CLARKE: Yes. Thank you, your Honor.

THE COURT: Good afternoon, sir.

MR. CLARKE: Good afternoon, your Honor. This particular motion is before the Court as a result of materials that have been provided to the People by the Defense with regard to Dr. Gerdes specifically. What those materials reveal--and I have attached to our evidence code section 352 motion copies of the materials that have been provided to the People that I'll address briefly in just a few moments. What this proposed testimony by Dr. Gerdes specifically relates to and that which we are asking this Court to preclude in particular is an examination by Dr. Gerdes of PCR, DQ-Alpha typing conducted in the laboratory at the Los Angeles Police Department. And that review I think it is clear was specifically undertaken by Dr. Gerdes as part of a search for contamination, a search for contamination, the DNA laboratory at the Los Angeles Police Department, and I think it's clear that that was his goal in undertaking this review. It is clear from the materials that we have been provided that Dr. Gerdes has looked at over 200 DQ-Alpha--I'm sorry--DQ-Alpha hybridization records and that those records specifically cover a time period between May of 1993 through August of 1994 or a period of some 15 or 16 months.

In any event, by Dr. Gerdes' own materials, that review includes over 1,000 separate typing strips. In other words, one sample being subjected to DQ-Alpha typing constituting a single strip and this review by Dr. Gerdes includes more than 1,000 strips. And it is clear the goal of that review which Dr. Gerdes states in summary form in the materials provided to the material supports what Dr. Gerdes refers to as a chronic and substantial contamination problem of their DQ-Alpha strips by the Los Angeles Police Department. Now, briefly, I'd like to review the materials that in fact the People have been provided and which are attached as exhibits 1 through 4 to our particular motion. What we were provided on June 16th of this year were two items; one, what is entitled an analysis of LAPD validation data, observed contamination and its relevance to the Simpson case, which was a several-page report type document, and then in addition to that, we were provided a several page what I will refer to as chart which was entitled, "LAPD DQ-Alpha contamination incidents." In those two items, Dr. Gerdes' describes reviewing 1,000--I'm sorry--1,069 evidence strips. The majority of those strips is clear from a review of that--

THE COURT: Counsel, when you say 1,000 evidence strips, we're talking about casework strips?

MR. CLARKE: He uses the term apparently a little bit vaguely. He uses the term "Evidence strips," but it is clear that the majority of those are not casework. So I think--and I've just reiterated or actually repeated the term Dr. Gerdes has used. But I'll get into that in a moment in reality what those items contain. I think it's safe to say that when he says he has reviewed this thousand plus strips, that includes strips that are not only casework evidence as we'll use the term, but also include known samples, proficiency tests as well as in-laboratory validation. So I don't think his usage of the term in this instance "Evidence strips" means casework, let alone casework specific to the present case. And as I mentioned, the majority of those strips that he reviewed are not casework. They are in fact training strips undertaken by laboratory analysts familiarizing themselves with this technology. They include in-laboratory validation typing strips and they include proficiency strips as well. The actual evidence casework, not specific to this case, but other cases constitutes a limited number of those 1,000 plus strips.

THE COURT: When you say a limited number, what are we talking about?

MR. CLARKE: I have not actually calculated the exact number that are evidence strips, that is actually casework samples from other cases. If I had to estimate, I would say it's on the order of 10 percent. Perhaps it's more. I don't think it's less. That's a very rough estimate, your Honor. His conclusion from those initial documents provided to the People in June are that contamination of major proportions is a part of the Los Angeles Police Department DNA laboratory. Now, 10 days ago, actually 11 days ago at this point, the People were provided with a new chart by Dr. Gerdes in which Dr. Gerdes changed the name of contamination on the chart to, quote, "Unexpected alleles." And in that material that we were provided, it was accompanied by a letter to Mr. Scheck by Dr. Gerdes stating, quote, "Not all entries can be strictly confirmed to be contamination," unquote. And, therefore, he renamed the chart.

And in fact, in that material provided to the People by way of the same letter to Mr. Scheck, Dr. Gerdes concedes that he made errors in his earlier chart and made changes accordingly. Now, getting back to the review that occurred by Dr. Gerdes of this 1,000 plus samples, Dr. Gerdes states cross-contamination can produce typing errors. That's one of the statements that he utilizes as a result of his review contained in his analysis as well as his chart form summary. And in fact, Dr. Gerdes alleges that five mistyping errors were committed by the Los Angeles Police Department. I think it's important at this point, and I'd like to discuss two of them because they are closely related to one another and I think the Court has to realize the type of testimony that this witness apparently will present in this case and we know from previous testimony is presented in other cases. This first quote, mistyping error, by Dr. Gerdes involved a known blood sample, a sample run by an analyst not related to this case named Erin Reilly, and in the course of typing that known blood sample--again, this particular typing strip had no relation to this case whatsoever. That in typing that known blood sample, two alleles were noted by Erin Reilly and a type was written in her notes from the appearance of those two alleles, which were a 1.3 and a 4. The actual type of that sample was a 1.2, 4 not a 1.3, 4. The Court will I'm sure recall that there's no DQ-Alpha probe specific to the 1.2 allele, and there's some interpretation that goes into an analyst concluding the presence of the 1.2 allele. The negative control on that run failed. It demonstrated activity signalling to Erin Reilly that those results could not be called. And as a result of that, Erin Reilly reran that sample as well as the other samples that were involved in the same set of typing strips. That was counted by Dr. Gerdes as a mistyping or an error. Erin Reilly reran that sample a matter of a few days later, detected the same two alleles that she had detected before, which were a 1.3 allele and a 4 allele. Again, the sample was in reality a 1.2, 4. The negative control again showed activity signalling to Erin Reilly that those results could not be called. That constituted according to Dr.--

THE COURT: All right. Let me see if I'm understanding where you're going, Mr. Clarke. You indicated on the first sample done by Erin Reilly that the negative control failed. Does that mean that it showed activity or that the control mechanism didn't work?

MR. CLARKE: That was a poor usage of terms on my part. The control revealed the activity. So the control served its purpose.

THE COURT: Got it.

MR. CLARKE: Thank you, your Honor.

THE COURT: Got it. Didn't fail.

MR. CLARKE: Correct. Absolutely correct.

THE COURT: Okay. That's a big difference.

MR. CLARKE: Yes.

THE COURT: Okay.

MR. CLARKE: In the rerun, the same thing occurred with the control. And, therefore, the results were not called. That constituted according to Dr. Gerdes in his report a second mistyping by the Los Angeles Police Department. Now, the postscript to this is, about two days later, that sample again was rerun because of the problems with the previous typings. No activity showed in any of the negative controls, and the sample was appropriately called and correctly called from the typing as a 1.2, 4. That rerunning, that is that third typing of the same sample is not even mentioned in Dr. Gerdes' material, and yet those are two mistyping errors according to his testimony.

That is obviously wrong and misleading to refer to those as typing errors in view of the fact that they were never culled, they were never reported as results because the controls served the exact function they were designed to. The other three errors I'm not going to get into at this point other than to say that two of them involve the same sexual assault epithelial cell sperm fraction situation that this Court heard some testimony about earlier, wherein in typical sexual assaults, there are mixtures. And, again, I won't get into that other than to state that what Dr. Gerdes refers to as a mistyping or an error was called absolutely correct correctly from not only the appearance of the alleles in those individual typing strips, but the very nature of sexual assault mixed samples to begin with. And then the last one refers to a hair shaft, not a hair root. Now, getting back into what takes up more, in fact far more of Dr. Gerdes' review involves the appearance of 1.1 and 1.3 reactions that are weaker reactions in samples that in fact show the 1 allele. Now, the Court has heard testimony about cross-hybridization. And because the sequences of the various 1 subtypes are very close to one another, that in fact there can be weaker appearances or weaker reactions from the 1.1 allele and from the 1.3 allele as a result of this cross-hybridization. In his chart, Dr. Gerdes, first of all, has referred to the fact that these appearances may be--and I'm referring to the 1.1 allele at the moment--are result of what's called DX activity. And there's been testimony about DX, a closely related gene to DQ-Alpha. And because of similarity in sequence, the 1.1 allele may appear. And in fact, the appearance of that allele is recognized not only in the user guide, that is the DQ-Alpha user guide put out by Roche, it's recognized in the scientific literature and in fact has already been the subject of testimony in this case. That constitutes approximately 40 of the 100--approximately 180 references in Dr. Gerdes' charts. These 180 references that Dr. Gerdes makes to originally contamination, but now what he refers to is unexpected alleles. But I think that's simply a euphemism for what the Defense seeks to present to this jury, which is contamination, not unexpected alleles. The same applies to the 1.3 allele. Approximately 50 of Dr. Gerdes' 180 references include reactions in the 1.3 allele that are weaker than reactions that are obtained from the other alleles present in the sample itself. And again, testimony in this case has already described this cross-hybridization. The user guide specifically addresses it. Trained analysts just like the 1.1 cross-hybridization situation are fully aware of it, and lastly, the scientific literature demonstrates the same thing. In this case, from Dr. Gerdes' chart itself, there's no instance of alleged contamination by Dr. Gerdes for the periods between June 10th, 1994 and June 27th, 1994. That is a critical gap in terms of his chart and what he has described as these instances of contamination. That time period includes the specific DQ-Alpha runs in this case, which were on June 14th and June 15th, 1994. This offer to the Court to prove Dr. Gerdes' search, to prove his search for contamination is frankly no different than that which occurs in driving under the influence cases when a Defendant seeks records about the breathalizer or the intoxilizer or the gas chromatograph; how is the machine operated during the relevant time period? And in fact, they're frequently provided records. And in this case, it's the same as the records demonstrating the machine was operating perfectly. How relevant is it that the machine wasn't operating perfectly a month earlier, six months earlier or a year earlier? And I don't think frankly there's any difference in this particular case.

THE COURT: Having been the supervising Judge of the traffic building earlier in my career and having tried 37 driving under the influence trials in a row, I've heard that argument.

MR. CLARKE: That's a lot of driving under the influence cases in a row.

THE COURT: It is.

MR. CLARKE: I've cited to the Court the question of eyewitness identification testimony and cited to this Court People versus McDonald as well as United States versus Downing. And I think the relevant portion of that and why I think that's applicable is because those cases make clear that there has to be some relevance of that material. That is, the offered eyewitness identification expert type testimony to the facts of an individual case or what's referred to as fit, due to the facts of an individual case, fit, what's described to be offered by the Defense. And the question in this case is, what is the accuracy and reliability of the results in this particular case. That's what this jury has to decide, what this Defendant is trying to show. In other words, what they're attempting to use as a vehicle to show the unreliability and inaccuracy of these results is basically, there's something fishy. There's no custom or practice that the Defense can define or identify in this particular case that's causing something to go wrong. There is this amorphus fishy atmosphere in which, quote, contamination of epic proportions calls into question the accuracy of the results in this particular case. What the Defense is attempting to parlay is this review by Dr. Gerdes and proposed testimony into juror speculation about the accuracy of the results in this case based on, again, this nebulous cloud or what's referred to by the Defense as alleged contamination. Even as the Defense responds to the motion brought by the People in this case, they state these things, contamination that is, could have produced falsely incriminating results. And in fact, they even try to divorce both Cellmark and the Department of Justice by laying the blame at the footsteps of the Los Angeles Police Department. Well, the answer is, that is not a proper vehicle to attack this particular evidence. The proper vehicle is to examine the evidence results in this case, the control samples in this case and is there something wrong with what occurred in that testing. And in fact, that's the traditional means by which it's done in any other case that I'm personally familiar with.

Well, the problem in this case is, the evidence samples, the actual evidence testing in the controls worked. And in fact, they worked appropriately in every instance. The last legal means to attack the accuracy of results in an individual case obviously is by retesting. Section 352 I would suggest to the Court is specifically designed to avoid this type of offer. And the Defense has in terms of their response specifically directed their comments towards the allegation that this would take undue time. Well, time consumption is a factor. But I'm going to suggest to the Court the other two factors in 352 are far more important in this instance. And that is, misleading the jury in determining the facts of this case and confusing the jury in their determination of the facts in this case, and in particular, with regard to the accuracy of the results obtained in this particular case. Contamination in the Los Angeles Police Department is clearly revealed in typing strips wherein extraneous or additional alleles are present. It's obvious to an analyst. It's obvious to a layperson.

And in the course of Dr. Gerdes' testimony, even without these alleged instances of contamination, that might become relevant, in which case the jury could see an example, what's contamination look like. Well, it's like a red light and a siren going off, it's so abundantly clear. And when it goes off, as has happened at the Los Angeles Police Department in two instances, the laboratory acted according to accepted protocol, acted according to appropriate science, and in fact went on with its testing under appropriate circumstances, which was to conduct the testing according to scientific protocol as well as the protocol in place within the laboratory itself. The answer is, contamination is not present in this case. I anticipate Dr. Gerdes will concede that the number of controls in this case outweighs any case he has previously seen in the number of cases that he has reviewed as a Defense consultant and/or expert. This Court already knows the use of reagent controls, amplification controls, positive controls as well as, remarkably enough, unstained substrate controls with regard to almost all evidence samples in this case.

If this Defendant is allowed to put on evidence, whether it's by simple charts, summaries and tabulations of these alleged instances of contamination, then what will happen is, the jury will be misled. They will be confused because then they'll have to hear testimony about a number of different areas. They'll have to hear testimony about Dr. Gerdes' own errors in interpreting the presence of dots and what particular types are present as a result of analyzing and interpreting the presence of various alleles.

THE COURT: Tell me about that.

MR. CLARKE: It's our position that from reading particular probe reactions, that Dr. Gerdes miscalls more than one sample. In other words, he alleges a particular type is present when it is not by proper interpretation. Now, I'm not referring to whether or not there's a weak reaction; in other words, whether you can see a reaction. But from obvious probe reactions, whether or not he can call the type correctly. In other words, the interpretational aspect, not whether or not a signal is sufficiently strong to be interpretable, if I'm made that distinction clear.

THE COURT: All right.

MR. CLARKE: It would require evidence to show, that is to demonstrate to a jury about this phenomenon of cross-hybridization.

THE COURT: Again.

MR. CLARKE: When Dr. Gerdes refers to let's say a sample tested in July of 1993 and refers to that as an instance of contamination or, quote, unexpected alleles, then by necessity presumably, the photograph has to come out to demonstrate in fact it's a lot weaker than the evidence samples, that is the alleles that are present and are in fact called by the analyst and almost always is significantly fainter than the C dot which the Court I'm sure will recall was one of the controls in place. The jury wouldn't necessarily have to revisit sexual assault spill over and finding, for instance, victim's DNA in a sperm fraction or vice versa. The jury would have to hear about hair shaft DNA because Dr. Gerdes on several occasions refers to, as again, contamination or unexpected alleles, depending on which term he chooses to utilize based on results obtained from hair shafts. The jury would need to hear, for instance, or actually see in some instances the absence of the allele that Dr. Gerdes says is present from a photograph. And that, again, could involve testing in May of 1993. It could involve testing in August of 1994. The jury would have to see how contamination is signaled. What are the types, what are the types of signals that tell the analyst, that alert the analyst to the problem--well, not actually the problem, but the proper performance of the control in demonstrating this potential of contamination. And then lastly, the jury would have to hear about casework mixtures. There are at least one--actually there may be more than one instance--of--there is more than one instance--of casework mixtures that Dr. Gerdes refers to in his chart and do we in fact relitigate those particular cases. With these strips by necessity--and I've referred to the use of photographs--a photograph, question and answer about the individual samples in that photograph, why an instance alleged by Dr. Gerdes to be contamination is not contamination and a discussion about that, and again showing to the jury what does contamination really look like and how is it signaled, this would literally require a trial within a trial and it may require a trial within a trial as to many cases that were conducted, that is in terms of testing conducted by the DNA laboratory in cases totally unrelated to the present. That I would suggest to the Court is the type of material that section 352 is exactly designed to address, to avoid these dangers of confusion and misleading the jury and, secondarily, what may well consume much testimony and in fact who knows how much testimony. That concludes my comments as to evidence code section 352. The Court I'm sure will recall that in the motion, there is reference to the hearsay opinions of other experts. I didn't intend to address that because it's been addressed previously in argument to this Court, and it was simply to reiterate to this Court the fact that our position about hearsay opinions still stands, particularly in reference to the Price and Corsack cases, which, again, were previously cited to the Court.

THE COURT: All right. Thank you.

MR. CLARKE: Thank you.

THE COURT: Mr. Scheck.

MR. SCHECK: Good afternoon, your Honor.

THE COURT: Good afternoon, Mr. Scheck.

MR. SCHECK: The key Defense contention with respect to the DNA evidence in this case is in fact that through the inadequate substandard evidence handling procedures in the Los Angeles Police Department, their custom and practice, the evidence--key pieces of evidence in this case, the Bundy blood drops, the Rockingham glove were cross-contaminated. Once they're cross-contaminated in that laboratory, as the Prosecution's own witnesses have admitted, it doesn't matter what the results are at LAPD and--the Department of Justice--I'm sorry--and Cellmark because they're going to be consistent because of the initial cross-contamination. That has been our contention since the opening statement where we used that black box showing all the evidence samples going into the LAPD, and on the other hand, the Department of Justice at Cellmark. It was the clear thrust of the cross-examination of the witnesses from the Department of Justice and Cellmark and LAPD. There's no secret. Mr. Clarke gets up here and says, well, they're going to do that. They shouldn't be allowed to focus so much attention on contamination at LAPD. That's our defense and it's a respectable scientific defense. And what's most interesting of all is that when we went to the lab and we looked at the data from all the different hybridization strips, which I'll discuss in a second, we found concrete overwhelming data about the inadequate procedures at the Los Angeles Police Department, the inadequacies of their controls to detect contamination, their inability to understand that they had contamination and what to do about it, their gross violation of every fundamental procedure and protocol of running a competent DNA laboratory. That's what we found. And not only that, we found precisely those issues in this case. The use of plastic bags to handle wet swatches that would degrade them, the handling of degraded DNA samples in the presence of a reference sample by Mr. Yamauchi when he handled the Bundy blood drops and the glove between 9 o'clock and 11:20 is an absolutely critical period in this case. And those customs and practices are the same kinds of customs and practices that were used in all these other samples, their own validation studies, the way they handled database samples and the way they handled casework. And I'll discuss what he does with casework in a second. So the key point here is, we found chronic contamination in the work of this laboratory. The procedures which were used in this case were the same procedures that were used on these samples. So this data shows the inadequacy of those procedures. Key point, the controls that were used in the LAPD validation studies, in their casework, in their proficiency tests and the strips that Dr. Gerdes looked at are the same controls used in this case. What his data shows and what the national research council, as I've pointed out to the Court in our arguments over discovery, concurs is that in this system, these controls are not necessarily adequate to demonstrate contamination in a particular experiment, although one can have contamination in the laboratory as a general matter. In other words, if at some period of time, you're getting runs of extra dots or contaminants and positive controls and quality assurance samples and negative controls during a period of time, you won't necessarily see it in a particular case, but it will show up again. And it doesn't mean the absence--I guess it's the absence of evidence argument again. But scientifically, it doesn't mean that there isn't contamination in the laboratory and that the particular experiment in question wasn't contaminated. This data proves that. This data shows lots of contamination and in many instances, the negative controls are clean. One of the charts that I showed you on Friday shows that the extraction control is dirty 40 percent of the time between May and July and the amplification control is--shows no contamination. It shows that the contamination that we're getting is coming from the sample handling procedures, that the handling of the samples initially in the extraction, that would be the evidence processing room and the serology lab where all the samples were handled by Mr. Yamauchi, that's what the data indicates the contamination comes from. Not when they go to the Parker Center and they do the amplification. So this data goes directly to the sample handling and it shows exactly where their contamination is coming from. The argument of the Prosecutor here is that without any affidavit or any expert opinion, he's coming forward and saying, well, we disagree with Dr. Gerdes' judgment. And I should say that the same analysis that Dr. Gerdes is going to be put forward--is going to put forward will be seconded by Dr. Mullis. So they're substituting their judgment. They're saying, this analysis is wrong, that this contamination doesn't make a difference, it doesn't produce errors, it doesn't indicate that they have substandard procedures, it doesn't indicate that the same procedures they used in this case are inadequate. And those are classic matters of weight. If they want to cross-examine on those points, they should be free to do so. But this is the heart of our defense, and it seems to me that there's no factual scientific basis in this record other than Mr.--

THE COURT: Were you here for the earlier arguments?

MR. SCHECK: I'm sorry?

THE COURT: We have a multi-hearted beast here.

MR. SCHECK: A multi--

THE COURT: Hearted beast.

MR. SCHECK: Yes.

THE COURT: Every argument I hear, this is the heart of our defense.

MR. SCHECK: Oh. Well, let me put it this way.

THE COURT: And I've heard that--this is the third time I've heard that argument today.

MR. SCHECK: I understand.

THE COURT: Okay.

MR. SCHECK: This is the heart of our defense to DNA evidence.

THE COURT: Okay.

MR. SCHECK: Particularly the Bundy blood drops, the glove, the Bronco. How important is DNA evidence to the Prosecution's case? I dare say it is, in the words of the McDonald case, which strangely enough, the People are citing, a key element of their proof. And it's something that we should be given full latitude to rebut.

And frankly, when they put on a Coroner for eight days in the fashion that they did, it seems to me that one day of direct testimony of Dr. Gerdes where he indicates exactly what he found at the LAPD laboratory and ties it directly to the procedures used in this case and the issue of contamination and cross-contamination ties it directly to all those questions I asked Gary Sims about cross-contamination factors in the laboratory. We're going to go through precisely those same logos, precisely those same areas. Gary Sims admitted that all those practices created a risk of cross-contamination. He on the other hand felt, well, it's not a sufficient risk and it's not so terrible in this case because I'm going to rely on the substrate controls. But it's not like the Prosecution witnesses said, that the practices and procedures followed at the LAPD laboratory were sound. Frankly, I think that they indicated quite the contrary. The question is, if you're engaging in those kinds of practices, how bad can your contamination problem be and can that contamination problem cause errors and can you be having cross-contamination of samples and not detecting it with these particular controls.

The data that we've gotten from the Prosecution's own laboratory goes to this issue. It corroborates the point. It's what Dr. Gerdes and Dr. Mullis are going to testify to.

THE COURT: So you're saying that you can present this in an intelligible fashion in one court day?

MR. SCHECK: Yeah. Maybe a court day and an hour because I'm not so quick with the exhibits. But I showed you the charts. Oh, this part of the direct examination is half a morning. I mean, this is no more than an hour and 20 minutes. I think that what should be noted too is that Mr. Clarke gets up here and says, well, you know, this DQ-Alpha system has a problem. Sometimes when we see 1.1 dots, it could be what is known as an artifact, this so-called DX gene, and sometimes when we see 1.3, that could be a cross-hybridization. And the testimony in this case from the user guide, which incidentally, not all the Prosecution witnesses accept as a bible. Robin Cotton rejected parts of it. But the user guide says that if you put too much DNA in a lane, you may get cross-hybridization.

We cross-examined Gary Sims about the 1.3 allele that will come up in Dr. Gerdes' testimony that was present on sample 31, which is a stain from the Bronco console. It is that dot, that light dot that puts Mr. Goldman's genotype in the Bronco from the collection on June 14th, that dot and that dot alone. Yet on evidence item no. 52, when they get a 1.3 dot of similar light intensity, they reject that one and say it's an artifact. The whole issue--and in either--in neither instance is there a large amount of DNA. The point is, is that there's a very, very serious debate about the limitations of this system with respect to that 1.3 dot. Now, in the chart and in the presentation to the jury, Dr. Gerdes makes very, very clear--it's why he renamed that chart that just contains his raw data to unexpected alleles instead of just contamination because we're making the distinction. We're going to make it very clear, there is certain instances where there's artifacts, there's certain instances where you see a 1.1 dot on a strip or a 1.3 dot on a strip, which arguably is either a contaminant or an artifact. But it's our position in that situation is that you have to presume that a contaminant or any sensible lab would, and certainly you can't draw many conclusions from that. And it's a serious defect in the system. It comes out through an examination of this data, and the fact of the matter is, it's in some of the most important case samples here. It's right on the DOJ typing strip with respect to the Bronco console, item 31, and it's right there on item 52, the Bundy blood drop, and it becomes a significant issue. So I don't understand how Mr. Clarke can get up here and say, well, here's a--we understand what it is. So it's okay, and Dr. Gerdes and Dr. Mullis are not allowed to get up there and say that they disagree with him. And I haven't seen anything else here in terms of expert affidavits that--in terms of a 352 motion that would justify the extraordinary remedy of precluding their testimony. Even the examples that Dr. Gerdes can give with respect to typing errors, it's very interesting. I may have this wrong, but I believe the two examples that Mr. Clarke are talking about are a proficiency test that was performed by LAPD. And the first typing error, they mistyped the reference sample from a victim in a rape case. That's all the lab knows. It's the blood from the victim in the rape case. They mistyped that.

When they look at--on the same run at the epithelial cells from the extraction from the vaginal swab, they see that it doesn't match up. In other words, it's a rape case, and the person who's supposed to be the rape victim in the evidence sample has a different genotype than the blood from the victim. So what do they do? They do it again. And as he indicates, they get the same wrong type. Why are they getting the wrong type? Because there's a 1.3 allele that I think by his own presentation, he's conceding is a contaminant. Because it showed up in the negative control, it's a contaminant. I mean, it's one thing to say, well, the control, quote, unquote, worked. Well, what it's indicating is a contaminant. We don't see anything in their analysis of this proficiency test that says, we did it twice, we came up with the 1.3 contaminant, where did that come from, how did we get it or it's not really a contaminant, it's a cross-hybridization. What we see is that they do the proficiency test a third time until they can resolve the discrepancy. And it is the third time that they turn in the results.

And frankly, we are going to offer testimony that that is completely contrary to the way that any good laboratory should be taking a proficiency test or running with a proficiency test because in a case, you couldn't do that necessarily. You couldn't do that at all. And that's the problem with the way these labs work. And we are making a no holds, bar attack on the forensic community and the way they deal with proficiency tests and their failure to do external blind proficiency tests, their failure to do hard tests that replicate the very samples in this case. Not one of these laboratories testified that they ever did a proficiency test that involved mixed blood samples or degraded blood samples with the possible exception of the first two California association of crime lab director studies. And in those cases, Cellmark got false positives on RFLP, and their second false positive, as our witnesses will point out, is a model for this case.

THE COURT: Slow down.

MR. SCHECK: Okay. So we think all that is plainly relevant, it goes to the heart of our defense in this case and we should be allowed to present it. Now, just to be clear about what Dr. Gerdes looked at, he looked at everything. We can see every strip up to I guess August that the lab typed.

THE COURT: But you haven't even addressed Mr. Clarke's fundamental argument, that a lot of this stuff deals with testing casework validation studies, proficiency testing years before and significant time after and traditionally here in California, we restrict that kind of testimony to a reasonable window period along the relevant testing in question.

MR. SCHECK: Well--

THE COURT: So why shouldn't I impose say, for example, a 30-day window on this?

MR. SCHECK: The reason that you shouldn't impose a 30-day window is because it is a chronic problem and it goes to the heart of the laboratory procedures. By the literature we have itself from the NRC and from others and even the present case law in this case, we don't know enough about DQ-Alpha testing or PCR base testing to state with any assurance that the chronic contamination problem that begins in the second month that the lab is in operation and goes all the way through wouldn't be affecting results in this case. In fact, we have quite the contrary. One of the kinds of contamination that we can have is what's known as PCR carry-over contamination, and that is a literal accumulation of amplicons.

THE COURT: I recollect the testimony.

MR. SCHECK: And if that kind of amplicon buildup begins in a laboratory and is not detected and it goes unchecked, it will affect analyses for years. In clinical laboratories, what they have found in external tests on hepatitis, on aids, HIV virus, on a whole host of--Lyme disease and a whole host of organisms is, once you get this kind of contamination in your laboratory, they have to close the places down. They can't get rid of it. And the problem we have in the LAPD laboratory is that our data shows chronic and substantial contamination that was not detected, not recognized for what it was, wasn't dealt with throughout the time that they literally started taking cases all the way through this case. Now, we are going to of course, and as you saw our charts, are going to zero in on this particular case and the window here. But what we have to demonstrate through their own validation studies--they call them validation studies because they're supposed to validate that their people are using correct procedures that won't cause contamination--through their validation studies, through their easy work on just taking known samples, for example, in the Korean database--from their own proficiency testing, which are the closest thing we have from casework, we see these same problems, contamination due to sloppy handling techniques, poor handling techniques, defect in their basic protocol, again and again, not picked up by negative controls. These are the key areas of proof. So we think that we have to have the opportunity to present that data.

THE COURT: Well, how broad a window are you talking about here?

MR. SCHECK: Well, we're going to show first the broad--we have the data from the very beginning of the laboratory. We're going to show the general pattern in terms of the strips, all the strips analyzed, all the runs analyzed each month to show how chronic and substantial the contamination is. We're then going to show a chart that explains exactly where the problem lies, particularly in May through July in terms of the extraction controls, the window of this case. So we're going to start with the broad problem, indicating how it is inherent in their procedures and their system, it's systemic, and why that's important. Then we're going to narrow in in terms of the data on the window of this particular case. But it's the only way to rebut the basic contention that they say, well, look, these controls work in this experiment. Therefore, everything's fine. Our data shows again and again the inadequacy of the controls and the contamination errors. And they can say all they want that light dots don't make a difference. But their own witnesses conceded that when you have a mixture, that the primary component of the mixture, the primary contributor can light up that C dot, and then you're going to have light dots within that mixture and it makes it very difficult to interpret. The user guide, everybody says that. The NRC says that. So when you have these kinds of low-level contamination problems, it's a serious matter and it goes right to the heart of the evidence in this case.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: The other thing that we're going to show here--and it distinguishes it from breathalizer in a number of ways--but they never got it right. From the moment they opened up this laboratory, they never got it right. We're going to put on testimony, for example, that the hood, the biological safety cabinet where all the extractions are performed--Mr. Matheson, Mr. Yamauchi testified they thought was a laminar flow hood, a laminar flow hood that has a circular air flow. It's not a laminar flow hood. It's a chemical hood that sucks in all the air from the laboratory and right through that area. That is a fundamental. The reagents on the counter are not properly aliquoted and are out of date. We're going to show that. We're going to go from a broad analysis showing chronic contamination of the laboratory to the specifics of the case, to the--every one involving the same procedures that are used here and right to the reagents, right to the work station and show that it's a chronic problem, that these people really don't know what they're doing. And if that's the case, if that's the case, their whole DNA defense which rests on this notion that, well, these substrate controls were definitely run strictly and parallel, everything was done right, when Mr. Yamauchi opened up the reference tube, he couldn't have--it may have been a bad practice to do it at the same time as the evidence samples, but he couldn't possibly have made a mistake, those kinds of things don't happen--well, in this lab, they happen and they're high-risk conditions that invite error. And that's the only way we can directly attack that in terms of proving that it's a systemic problem by a laboratory that has inadequately trained personnel, inadequate procedures that cause contamination that lead to errors. That's precisely the theory of our case. So this is the guts of it. It won't take more than I think two hours to put on those charts. The charts will directly zero in on the evidence. If it's going to take Mr.--Mr. Clarke I think backed off a little bit, the argument that he couldn't delineate the difference between his witnesses or himself and Dr. Gerdes on this DX question or how you interpret a strip. He's a very skilled advocate. He'll get right to the point. Everybody knows what the criticisms of Dr. Gerdes and others are compared to people in the forensic community. It's a debate that has to go on in front of the jury. It's a debate that would have gone on if we had had a Kelly-Frye hearing. I'm not at all certain that this evidence would be before the jury today if we had actually had that hearing. And this would be classic prong 3 kinds of material with respect to LAPD.

THE COURT: Mr. Clarke.

MR. CLARKE: Just a brief comment, your Honor.

THE COURT: Yes. Your motion.

MR. CLARKE: Thank you. Just with regard to the fact that this was brought up in opening statement, that is not a vehicle that makes evidence otherwise inadmissible, somehow admissible. Obviously, the Defense has placed stock in their allegation that this was a laboratory that suffers contamination. That's been a theme not only in opening statement, but also in cross-examination. But it doesn't make it true and it doesn't make evidence otherwise inadmissible somehow admissible. Now, Mr. Scheck spoke just a few moments ago about a chronic problem. The allegation is, it's a chronic problem, but it didn't happen in this case because the evidence, the particular samples in this case, the absolute wealth of controls demonstrate it didn't happen here. So the question is, is something that's alleged to have happened previously or as much as 13 months before the testing in this case or even a month before the testing in this case, is that sufficiently probative to outweigh confusing and misleading the jury. And I think that's the central question that ultimately this Court is going to have to decide.

And it's clearly our view that 180 mini trials going over the 180 allegations that Dr. Gerdes has made is not called for in this case because of the wealth of results, because of the fact that the controls operated as they're supposed to and because of the--

THE COURT: Of these 180 strips you're talking about here, how many were done by the operator in this case?

MR. CLARKE: I haven't made some of the tabulations that the Court has asked me questions about. I would estimate a quarter. I think Miss Reilly conducted more tests, and there was a third analyst, Mr. Klan as well. So I would estimate during the whole time period, that Mr. Yamauchi was involved in perhaps a quarter, a very rough estimate again. Now, the Court has raised the question of Mr. Scheck, well, can you do this in a day, and Mr. Scheck just now mentioned he can do it in two hours. I think it can be done in an hour from their perspective. That's not the problem. All they have to do is mark the charts and have Dr. Gerdes describe, well, this is what I've discovered and not get into an individual sample at all.

But the problem is, the incorrect opinions that Dr. Gerdes is giving about these 180 samples, and not all of them, but certainly by far, the bulk of them, would have to be exposed stone by stone. And that is where time comes into play. But again, I don't want the Court to think that this is an allegation resting primarily on time, although it would ultimately I think consume a good deal of time. It's the danger of misleading this jury into deciding 180 separate trials or 180 separate cases. And I don't think that that's the type of probative value, particularly in the context of the results in this case and the fact that the controls operated properly, that merits this type of showing.

THE COURT: Did anybody besides Mr. Yamauchi test the strips involved here, do the DQ-Alpha testing that we're talking about here?

MR. CLARKE: No.

THE COURT: Erin Reilly's name came up several times, but my recollection is that she did not do any of this testing.

MR. CLARKE: Correct.

THE COURT: This testing I mean.

MR. CLARKE: In this case. Is that what you're referring to?

THE COURT: Yes.

MR. CLARKE: Yes. Only Mr. Yamauchi. There is nothing that prevents Dr. Gerdes or Dr. Mullis or whomever the Defense has testifying talking about the results in this case, 1.3 alleles and when they can or cannot show up, the same with 1.1 alleles and all the traditional materials that Dr. Gerdes has testified to between 20 and 30 times. He does this frequent, he does this often and he discusses case specific results and what he believes to be limitations of the system nearly every time. So there's nothing that precludes those experts talking about these factors that Mr. Scheck just brought up. But the difference is, does the Defense have the right to go into all of these extraneous tests that weren't involved in this case, which, as I mentioned, cover a 15-month time period and cover obviously a great number of strips. It's our view that the Defense does not have a right to try 180 different cases. And ultimately while they might be able to do it with great dispatch, it would mislead the jury to hear that evidence without truly exposing Dr. Gerdes' opinions in each individual instance.

MR. SCHECK: Just a brief factual point. Erin Reilly--the testimony in this case was that Erin Reilly was the supervisor of Mr. Yamauchi and the two of them set up the lab together. She supervised the DNA work in this case, reviewed the results. The point is, it's systemic. It's a systemic problem, and that's what our data shows. They set up these procedures together, they followed them together. It won't do to break out Mr. Yamauchi from Erin Reilly.

THE COURT: Why not?

MR. SCHECK: Because the controls at issue, the procedures that they followed presumably are followed by the operators. And what we have here is systemic. It shows that the--

THE COURT: Well, if it's systemic, then it would apply to Mr. Yamauchi just as it would Miss Reilly, wouldn't it?

MR. SCHECK: Well, the problem is, is that you don't get to see the full pattern of it if you just break out the operators in that fashion because it deals with runs on a particular day. If there's a contaminant, contamination problem in the lab on a particular day or the run as we have our run chart--

THE COURT: Mr. Scheck, your allegations are basically this. That, one, there was cross-contamination of the evidence, and that was specific to Mr. Yamauchi, correct?

MR. SCHECK: That in--yes.

THE COURT: Okay.

MR. SCHECK: Well, no, no, no, no. I'm sorry. It is specific to Fung and Mazzola.

THE COURT: Yes. I mean, putting aside all of and Fung and Mazzola business.

MR. SCHECK: No. But their handling of the evidence and laboratory is critical.

THE COURT: I understand. Then the next point being that the manner in which this lab was set up has some significant problems, the use of this particular type of a hood, the draft hood. I don't know what you call it.

MR. SCHECK: Laminar flow.

THE COURT: The non-usable.

MR. SCHECK: Right.

THE COURT: All right. Then you have problems with what, amplicon contamination that you see evidence of?

MR. SCHECK: Well--

THE COURT: Why can't that all be specific to Mr. Yamauchi?

MR. SCHECK: Because it isn't. Because if you have amplicon contamination, for example, or if you have some other source of genomic DNA contamination, it's all the same people in the same work areas. They create the amplicon contamination. For example, it gets into the reagents. It gets into various different places. It could be Erin Reilly doing it. Then Mr. Yamauchi goes in there and all of Mr. Yamauchi's samples are contaminated or all of her samples were contaminated. It's inherent in the procedure of the laboratory.

THE COURT: But if it's inherent in the procedure, then it should apply to Mr. Yamauchi.

MR. SCHECK: Well, it would apply to the work he did. But in order for us to demonstrate a pattern, a chronic pattern of contamination, which we ought to be entitled to demonstrate, we have to show data from their validation studies, just typing even known samples from a database they get this kind of contamination. The testimony will be that in this kind of a laboratory, with the great sensitivity of PCR, one doesn't know exactly how it happens. Robin Cotton testified that in the CACLD false positive the second time, they had a witness in the room looking at all the transfers. And all that they concluded in the end was that when you had degraded specimen with a high concentration reference type specimen, that's how it happened. Therefore, they didn't follow that procedure. What we have to show here is that there's chronic and substantial contamination. Now, one thing I really--

THE COURT: You can't show that by examining all of the validation work, all of the proficiency work and all of the casework of this one operator out of these hundreds of tests?

MR. SCHECK: Well, no, for this reason. And that is that the way this analysis is conducted, particularly with respect to the casework, when we looked at the casework, you can't find from the evidence samples--we don't know who the individuals are. The only thing we could look at in casework were positive controls, that is the sample that comes with the kit, that's the--you know it's DNA that has 1.1, 4--a negative control, either the amplification control or an extraction control, and a quality assurance sample, known DNA from somebody. And you will look at a particular--you remember the chart on runs that we showed to the Court on Friday. Well, a run would be all the strips done in a particular day. If there is a 4 contaminant that seems to be running through the laboratory from some source, be it amplicon carry-over contamination that's in the reagents or on somebody or some thing or some set of instruments or if it's some genomic contamination from some source, you can't--you have to be able to see the whole day to see when it's showing up, both Reilly samples and Yamauchi samples or Klan samples, the three people that were involved in doing testing. In order to get a sense of the chronic contamination, you have to show that. And in order--and one of the big points is that, it's not going to be a trial of 180 samples. Mr. Clarke is going to say, Dr. Gerdes, when you see a 1.1 here on some of these samples, it could be a contaminant or it could be DX sometimes, right? There's an ambiguity. And Dr. Gerdes is going to say, yeah, for all of those, since there's ambiguity there, I think you have to regard it presumptively as an contaminant. Theory, it could be DX, but I have reasons when I look at the negative control here performed by Erin Reilly in the morning and it came up with a 1.1, I can say that Mr. Yamauchi's samples over here were a 1.1 emerged, it must be a 1.1 contaminant, not an artifact because it showed up on the negative control. And that's what was in his report. In order to make an adequate statement about contamination and to resolve ambiguous situations with the 1.1's and the 1.3's, you've got to look at the whole run and all of the samples.

So there's no easy way of breaking out the different sets of controls run on a particular day. We have to show that all the samples run on a particular day, the so-called run, they had contaminants on them. That from our point of view is the kind of proof we have to put on, that it is accumulating, chronic and systemic and it relates back to--

THE COURT: Well, why can't we restrict that then to a reasonable time period around the tests in question?

MR. SCHECK: Well, because you can't show--it goes back to the amplicon carry-over contamination argument and all the other arguments. He have to be able to show--

THE COURT: But if it's here, why wouldn't it be there within the 60-day window--

MR. SCHECK: Well, it's there, but it's not--but it's very important to show that it's from the beginning, it's cumulative, they never got it right and it continues all the way through. And frankly, one of the things that is a bit unfair is, they didn't run as many samples in June as they did in other months. And when you run more samples in other months and you get more contamination, it's more evident.

Because the phenomenon here that we're dealing with is that in any particular experiment or set of experiments, some controls may be clean, but there still may be contamination there. That's one of the big points that we have to make, that in some respects, it's counter-intuitive and the Prosecution is trying to harp on. They're saying, well, just look at the strips here. They're clean. Therefore, there couldn't have been contamination when in fact, the cumulative data shows there's plenty of contamination, the kind of contamination that scientists will tell you is not necessarily revealed in every case. Now, it's--we really have a right I think to put on that kind of systemic proof. It's not going to cause any kind of a mini trial. The issues here between Dr. Gerdes and the Prosecution experts about how you make certain kinds of calls qualitatively do not involve 180 strips of controversy. It involves some controversy over how he regards faint dots below the C, which they'll say you can ignore and our scientists say it's contamination and you can't ignore it. That's the nature of the debate. It's going to be a qualitative debate about a chronic, systemic, substantial condition, and I really think that we have to be able to put that on to show the context and to rebut the inference that their techniques--they testified--Yamauchi said, Matheson said--trained by Erin Reilly--she looked at it. If we just do the things the way we do them, then it is going to be okay. I can't even specifically remember what I did. I can't specifically remember whether or not I changed gloves. It's not our policy to change gloves between each sample. It's not our policy to scrape the tube and create the aerosol. That's the kind of sample handling techniques we should be allowed to show by looking at the broad range of data producing contamination. They're saying, well, maybe they're not the best techniques in the world says Gary Sims, but it couldn't have made a difference, wouldn't make a difference in general. This data, the long-term chronic and systemic contamination data shows that these systemic techniques were causing systemic contamination.

THE COURT: But, counsel, if it's chronic contamination, it would show up within a reasonable period, window, around the testing.

MR. SCHECK: Well, it shows up, but it doesn't show up because they didn't do as many test strips in that--

THE COURT: 30 days before and 30 days after.

MR. SCHECK: It shows up, but doesn't show up, because they didn't do as many strips, as dramatically as if you had contaminants floating around.

THE COURT: We're not here for drama, Mr. Scheck.

MR. SCHECK: No. Well, dramatically as substantively to show how chronic the problem is. It's not enough just to say that we see some evidence of it between May and July. It's critical when the nature of the contamination--the expert testimony will be, once you have a contamination buildup, it's chronic and substantial.

THE COURT: Mr. Scheck, I've got two problems with your argument. The scope of the inquiry that you are going into--

MR. SCHECK: I'm sorry?

THE COURT: --and the fact that it's not specific to the person who's testified. That's the problem I've got. Now, how do you solve that for me?

MR. SCHECK: Well--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: No. 1, the larger window. The larger window is necessary, a, to show how contamination leads to errors. The typing errors are outside the window on earlier samples, proficiency samples, validation samples. So we needed to show that. We need to show a larger window because--

THE COURT: How much larger?

MR. SCHECK: We need to show the pattern is from the day the laboratory opened the doors through August. And the reason we need to show it has to--goes to the particular nature of a PCR laboratory. That is, contamination is a problem, is a cumulative one. If it first occurs, it builds up, it becomes chronic and substantial and you can't get rid of it. The failure to recognize that they had this problem and the failure to get rid of it, which we can only demonstrate if we go into the larger window, is essential to proving that it was a serious problem in June--May, June and July of 1994. Unless we do that, we can't put on adequate proof to substantiate this contention. And we ought to be--it's not like a breathalyzer.

THE COURT: All right. Let's fall back to plan B.

MR. SCHECK: When you say fall back to plan b--

THE COURT: What's your plan b? What's your next alternative as far as scope is concerned?

MR. SCHECK: I don't have another alternative in terms of showing those charts. I have to show the charts. I mean, you want me to revise these charts not from May, but starting--I mean it's--in terms of the nature of the problem we're showing.

THE COURT: All right. Why don't you contemplate, you and your colleagues contemplate that question. Tell me why I should allow it beyond Mr. Yamauchi.

MR. SCHECK: Well, the operator problem.

THE COURT: Correct.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: It's really the same answer. And that is that the causes of contamination are a laboratory wide causes. The adequacy of the controls are not unique to the operator. The adequacy of the controls--and that's what this data is going to show--that the negative controls are not adequate to pick up the extent of contamination. That's why we have to show the large window and that's why we have to show data from more than one operator. You can't show the extent of contamination of the laboratory by looking at just one set of controls done by one particular operator.

THE COURT: But then Mr. Clarke then has to come back and show all of these things and show a contrary interpretation, doesn't he?

MR. SCHECK: No.

THE COURT: Why not?

MR. SCHECK: Well, it's not really the thrust of his argument. The thrust of his argument is not--

THE COURT: I thought that's what I heard.

MR. SCHECK: Well, I understand that. But he is not going to say, oh, on each one of these 180 strips--even in his paper, he admits that there's contamination here. He's just--in his argument he said, well, look, you see, the 1.3 negative control showed contamination. So the control worked. Our analyst is going to say that 1.3 in the negative control shows contamination and what you did about--and you didn't do enough about it. It's not enough to note that--90 percent of these contaminant dots they wrote down. They wrote 1.2, 1.1, weak 3. They say, well, we wrote it down. That's enough.

Our experts are saying, no. The fact that that 3 is there, that's only the beginning of the problem. What you have to do with the laboratory once you have this kind of contamination is shut the place down. You have to change all the reagents. You have to scour the place. You have to go back over all your procedures. You have to clean house from a to Z. That's what happens. Otherwise, you're going to have this amplicon buildup where you're going to continue following the same poor procedures and the contamination is going to become cumulative and worse. That's what makes it different from other kinds of technology. That's what all the readings that we went over with the Court and submitted in the briefs earlier, that's what the national research council has talked about as the special dangers of PCR, that you get a general contamination, a chronic and substantial buildup. We need that window to show this kind of chronic and substantial contamination of the lab. It is not operator specific. It is systemic. And you can't get an adequate picture of it, it's in fact a misleading picture of it if you only show data from one particular analyst.

You have to show the overall--he looked, he went through the casework irrespective of who did it and was looking at how many times you got a contaminant on the controls. And unless you see that general pattern, you don't have a notion of how serious the contamination problem is.

THE COURT: All right. Thank you.

MR. SCHECK: The final point I could make, your Honor, is that this is the opinion of Dr. Gerdes and Dr. Mullis about a--this kind of peculiar technology, PCR testing, which is sensitive, which has--I don't think there can be any dispute--this sort of cumulative buildup in terms of contamination. It is their judgment. What the Prosecution is asking you to do is--based on their bald assertions here, is to limit the scope of the proof. They're asking you to make a scientific judgment frankly in this case. That is what our experts believe. They believe that whole window is the basis of their conclusions to show that the controls are inadequate to pick up contamination in any particular case, that this lab was peculiarly terrible, it should have been shut down. The testimony would be shut down if it were any other kind--by any other normal laboratory standards because of that systemic, chronic, uncorrected contamination. That's their scientific judgment. That's the thrust of their opinion. And it seems to me that it's unfair to restrict it, particularly if the time in question is not that great. The fact is, the Prosecution took many, many weeks and many, many months to put on this DNA evidence, to educate the jury step by step. We ought to have the right to present the problem of contamination in its systemic, chronic and realistic form. If the Prosecution wants to come in and cross-examine them at some length, well, you know--it's unfair to say, you can present your case clearly and make the points clearly here and the Prosecution would take a long time--because it would be their strategy probably to take a long time and not to deal with the thrust of the issue.

THE COURT: No. But if they were smart, they would handle it with 20 questions and bail out.

MR. SCHECK: Well--

THE COURT: And make--and belittle it and say, Dr. Gerdes, you're a professional witness, you come in and this is your job to do this, right, you've testified to the same thing 30, 40 times, correct, People versus so and so and go through all for the Defense, blah, blah, blah, you're just a--

MR. SCHECK: Well--

THE COURT: --thank you very much, goodbye and just dismiss it. That's one tactic.

MR. SCHECK: That would be one tactic.

THE COURT: All right. Another fascinating day. All right. This is a motion that the Court takes as a motion under 352. And I agree with you, Mr. Scheck, that this is unlike single type technology like gas chromatograph evidence where it's a relatively simple machine and it's something that either works or doesn't work. PCR based DNA testing is a very sophisticated and is a technique and is subject to a lot of problems, not the least of which is interpretation of results and evaluation of contamination. We also have the other problem that the technology itself involves the multiplication of the sample itself, and that technology itself lends itself to contamination. I'm troubled by the non-operator specific nature of your offer, Mr. Scheck, and I'm troubled by the broadness of the window. I'm going to allow you to present Dr. Gerdes regarding the systemic problems inherent with PCR. I'm going to allow you some latitude going beyond Mr. Yamauchi as well to show other examples. I accept your representation that you can present this in six court hours. I agree with you that the Prosecution has had significant amount of time to present their DNA case, and I think your request in that respect is not unreasonable given the nature of what I have learned about PCR based DNA testing. But I take you at your word that you're going to be precise and succinct in this matter, keeping also in mind that we're dealing with a jury that has to understand it to believe it and that the cross-examination will go into the fact that it's non-operator specific, that we have a wide window relevant to this case that isn't--doesn't show this contamination, the other items that I mentioned, which is what I would do if I were on their side and bail out. All right. Are we clear?

MR. SCHECK: Yes.

MR. CLARKE: For clarification, your Honor?

THE COURT: Yes.

MR. CLARKE: The Defense has the right to put on this defense window?

THE COURT: But with a time limitation and with the understanding that I'm giving them counseling that--I'm allowing them to go beyond the single operator, but not a lot.

MR. CLARKE: Well, I think what we'll see is--

THE COURT: I understand we're--no. We're going to see the boards. I understand that. I understand that. But we have a particular issue, sophisticated scientific issue with regards to this particular type of testing. I think they're entitled to show their opinion as to what it is. And you can come back with the fact the controls worked and that there's no systemic error apparent within the window regarding this testing and that particular care was made with regards to these tests and they're corroborated by all the other test results and the RFLP results and all of that. You can ask Dr. Gerdes, did you take into consideration the fact that the RFLP testing done by Cellmark, which is a much more sophisticated--much more definitive test not subject to these problems, gave us an even more precise result which points even more directly either this way or that. See, I could do this in 20 minutes.

MR. SCHECK: I notice that.

MR. CLARKE: I'm writing down the questions.

MR. SCHECK: We have an answer though.

THE COURT: And I haven't even thought about the first amendment problems we have to worry about today. All right. Let's take 10 minutes for the court reporter, and then we'll get to the Bosco matter. All right. Thank you, counsel.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. Defendant is again present before the court. The jury is not present. And we now have present with us Mr. Sullivan. Good afternoon, Mr. Sullivan.

MR. SULLIVAN: Good afternoon, your Honor. Michael Sullivan on behalf of the reporter Joe Bosco. I'm a member of the bar of Washington D.C. your Honor, I would request permission to be heard on this matter. I'm here with a member of our California office, Miss Osinski, who appeared before.

THE COURT: Right. Your application to appear before the Court pro hac vice has been filed and approved by the Court.

MR. SULLIVAN: Thank you, your Honor. Your Honor, I apologize that this matter has been heard in somewhat of a piece-meal fashion. On our way to the court this afternoon, we heard portions of the argument made by both the Prosecution and the Defense. And so what I would propose to do rather than to rehash and waste the Court's time, I would like to make a few brief points and respond to specific points raised by the Prosecution and the Defense. First thing, the Prosecution made an argument that the shield law may be waived if Mr. Bosco takes the stand and testifies strictly to published information. We find that argument to be, a, without support and, B, your Honor, to be extremely troubling. There's no support for that. They can't cite a single California Supreme Court case that talks of waiver in that sense. Indeed, it simply can not be the case, because if that were the law, it would have disarrayed the shield law entirely. In fact, if you think about it, what it would do is, it would penalize reporters who are willing to take the stand and do their civil duty and testify to matters that are within the four corners of the publication, what material they've published, which is not protected by the shield law. So reporters who are willing to do that, they would then be penalized. That would be entirely unfounded and we submit with no basis or foundation. Second point, your Honor, is, to the extent that the Prosecution comes in and they say that they think they want to be able to go after information that is beyond what was published within the four corners of that article, we submit that they don't have the same claim to do that even as the defendants do. If you look at the cases that have been decided by the California Supreme Court, you'll see that when the Court has said that the interest protected by the shield law must yield, it's in cases where the person making that claim is the Defendant. And obviously, the Defendant has a constitutional sixth amendment right to a fair trial, and that is what in an appropriate case may force the interest protected by the shield law to yield. The Prosecution on the other hand, your Honor, they have no countervailing constitutional argument. So they--this argument that they can come in and try to get beyond what's protected by the shield law is simply not well-founded. My third point is, we need to focus on what it is that the shield law protects and what they can properly get. And what they can get under the shield law, Mr. Bosco can be required to testify to what is within the four corners of his article, what was published. That published information, he is here to vouch for. He will tell you that is a truthful and accurate report. He's prepared to do that. To the extent they seek to go beyond that, that is improper and that's where the shield law draws the line and that's where the curtain comes down. In fact, if your Honor looks at the playboy case, it becomes clear that what the California Supreme Court said is, they say, when we talk of unpublished information, that includes all factual information within the reporter's knowledge whether it's from his source material or his memory. Okay. That's basically what they're talking about. So what that means in this case, to provide a concrete example, the penthouse article that is the subject of this whole motion has this business in there about the DNA sock match story, and that's what we've been told the Defendant is more interested in. It goes on and talks about information provided by a certain police officer, and then it says:

"A certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration starting calling journalists with the story that the blood on the socks found in OJ's bedroom was a DNA match with Nicole's. This time, however, the officer offered no corroboration and became angry and defensive when asked." So let's take, for example, that what they want to ask is well, how angry did he get, right, what do you mean he offered no corroboration this time, how long was the conversation you had with him. Questions of that nature, that's beyond what is published information. That's not within the four corners of the piece and that would be protected by the shield law. Similarly, questions like, how did you recognize the source's voice, questions like that, your Honor, we submit are not proper under the shield law. My last point, the Prosecution made the point that this whole issue of this testimony presents thorny threshold issues going to matters such as relevance, hearsay and authentication. On that score, we wholeheartedly agree with the Prosecution and we would submit that that suggests exactly the type of tough questions that require a protective order to properly restrict the scope of Mr. Bosco's examination before he testifies in front of a jury. That's why we think it's appropriate to fashion a protective order so that both parties, both the Prosecution and the Defense, know precisely what it is they can get into and what it is they cannot. Thank you, your Honor.

THE COURT: All right. Thank you, Mr. Sullivan. All right. Counsel, I've heard the arguments of counsel for Mr. Bosco and for Mr. Simpson and the Prosecution. I think I've previously indicated that what I was inclined to do at this point is allow the Defense to call Mr. Bosco for the purposes of this 402 hearing to establish the foundation, one, that he--the nature of his employment, 2, the--his authorship of the article in particular, 3, that he did in fact report the items that are contained in those two relevant paragraphs. And then I assume somebody will ask him to divulge the name of that officer, and then he will invoke the shield law. At that point, I will then recess to contemplate the Delaney issues that are similar to the Savage matter as well, which I have not yet determined. But I think the--both sides are entitled to cross-examine Mr. Bosco as to the foundation for his ability to claim the shield law protection. And that's the extent of what I'm willing to do this afternoon. All right. Are we clear on that, having had our experience with Miss Savage yesterday?

MR. SHAPIRO: Yes, your Honor.

THE COURT: All right. Mr. Goldberg?

MR. GOLDBERG: Yes.

THE COURT: All right. Mr. Sullivan, are you familiar with what occurred yesterday?

MR. SULLIVAN: Basically I am, your Honor.

THE COURT: All right. Those are the perimeters of what I'm willing to do this afternoon.

MR. SHAPIRO: Thank you, your Honor.

THE COURT: All right. Are you ready to proceed?

MR. SHAPIRO: Yes, I am, your Honor.

THE COURT: All right. Is Mr. Bosco available?

MR. SHAPIRO: Yes, he is, your Honor. We call Joseph Bosco.

MR. SULLIVAN: Your Honor, may I be present at his side?

THE COURT: You may. And, Mr. Sullivan, I'll allow you to interpose--to either confer with your client at your request or to interpose objections as to subject matters you feel go beyond the scope of the Court's order.

MR. SULLIVAN: Thank you, your Honor.

Joseph Bosco (402), called as a witness by the Defendant, pursuant to evidence code 402, was sworn and testified as follows:

THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God?

MR. BOSCO: Yes, I do.

THE CLERK: Please have a seat in the witness stand and state and spell your first and last names for the record.

MR. BOSCO: My name is Joseph Bosco, J-O-S-E-P-H B-O-S-C-O.

THE CLERK: Thank you.

MR. BOSCO: Thank you.

DIRECT EXAMINATION BY MR. SHAPIRO

MR. SHAPIRO: Good afternoon, Mr. Bosco.

MR. BOSCO: Good afternoon, sir.

MR. SHAPIRO: Have we had a conversation last week regarding the issues for which you're being called to testify?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: And did I discuss with you the fact that I was interested in having you as a witness in this case?

MR. GOLDBERG: Not relevant.

THE COURT: Overruled.

MR. BOSCO: Yes, sir, you did.

MR. SHAPIRO: And did I ask you if you would accept a subpoena to appear on Monday?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: And did I serve you with a subpoena on Monday?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: What is your profession, sir?

MR. BOSCO: I'm a full lance--full-time free-lance author of books and occasionally magazine articles.

MR. SHAPIRO: And for how long have you had that profession?

MR. BOSCO: Well, I've been writing professionally since about the age of 18, but continuously only as a writer since 1982. I've been fortunate to make my living only as a writer since 1982.

MR. SHAPIRO: Are you a member of any professional journalistic societies or organizations?

MR. BOSCO: Yes, sir, I am. Just a few. I'm a member of PEN, which is--I'm most proud of. I'm also a member of the American Society of Journalists and Authors. I am a--oh, at the moment here--they're in my declaration, Mr. Shapiro. I've forgotten--the National Writers--what the heck is--I think PEN--

MR. SHAPIRO: Take your time and refresh your memory from your report.

MR. BOSCO: Yes. This is not my customary position. Yes. If I may. Oh, of course, how could I forget. The Authors Guild which is--I'm also proud of.

MR. SHAPIRO: And you're familiar with the trial of the matter of People versus OJ Simpson?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: And you've been a frequent guest of the Court and observed the proceedings in this case?

MR. BOSCO: Almost 100 percent, sir.

MR. SHAPIRO: And have you written about the case in any professional capacity?

MR. BOSCO: Yes, sir, I have.

MR. SHAPIRO: Have you published any articles regarding this case?

MR. BOSCO: Yes, sir, I have.

MR. SHAPIRO: And in your professional capacity, prior to publishing articles in this case, have you published any books?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: Would you tell us what those are?

MR. BOSCO: Yes, sir. Well, most relevant I think was the reason that I'm here, is my last book, was called blood will tell, and it has a direct bearing on this that most folks know, so I should get out, and that is my association with Dr. Henry Lee who worked very closely with me on that book.

MR. SHAPIRO: And you also were the co-author on that book with someone also?

MR. BOSCO: No. I was the sole author of that, sole author of blood will tell, yes.

MR. SHAPIRO: And that dealt with a case that was prosecuted or defended by a former Prosecutor from the District Attorney's office?

MR. BOSCO: As a matter of fact, it involved--a very long case that involved over 12 Prosecutors over the 10-year period of case and a number of different Defense attorneys.

MR. SHAPIRO: Regarding this case, did you publish an article entitled notices from--notes from camp OJ?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: And was that published in the penthouse magazine, issue June 1995?

MR. BOSCO: Yes, sir, it was.

MR. SHAPIRO: And in the course of that article, did you write the following: That you had information from a certain police officer? Did you write that, sir?

MR. BOSCO: Yes, sir, I did.

MR. SHAPIRO: Was that true and accurate when you wrote it?

MR. GOLDBERG: Well, assumes a fact not in evidence, that he wrote that he had information from a certain police officer.

THE COURT: Counsel, why don't we just refer to the specific paragraph that we're talking about here.

MR. SHAPIRO: You want me to read the whole paragraph? Well, I was only going to go to the relevant portions, but I'll be more than glad to.

MR. SHAPIRO: Did you write this paragraph and were the facts that you wrote true and accurate at the time you wrote them? The paragraph reads as follows: "There has been enough leaking out here to sink camp OJ if it were on a barge by the Defense and the Prosecution alike--"

MR. GOLDBERG: Well, I would like to pose an objection before he reads the whole thing because there will be no foundation for many of the items within this paragraph such as that he spoke to an L.A. police off--or the implication that he spoke to an L.A. police officer.

THE COURT: Well, the question is, "Did you write the following text?"

MR. GOLDBERG: But he was going to ask him whether or not it was true or accurate.

THE COURT: Well, the objection is overruled at this time. That objection is premature.

MR. SHAPIRO: Did you write the following text, sir: "There has been enough leaking out here to sink camp OJ if it were on a barge by the Defense and the Prosecution alike, but both are pikers compared to the L.A. Police Department. It began last summer with the Los Angeles--with the LAPD passing out 911 tapes to journalists as if they were courtesy trinkets welcoming them to town and reached its mater with the, quote, DNA sock match, end quote, story. Of the latter, this I know. Within two hours of Judge Ito admonishing the police for, quote, reckless disregard, end quote, of the truth, LAPD's worse moment to that date, a certain police officer whose leaks had hitherto been most accurately--most accurate and offered--"

THE COURT: Reread it.

MR. SHAPIRO: "--mostly accurate and offered with corroboration started calling journalists with the story that blood on the socks found in OJ's bedroom was a DNA match with Nicole's. This time, however, the officer offered no corroboration and became angry and defensive when asked. A number of journalists turned him down. Apparently KNBC did not, and the rest is ugly history for both the press and the LAPD." Did you write that, sir?

MR. BOSCO: Yes, sir, I did.

MR. SHAPIRO: And what you wrote, was that truthful?

MR. GOLDBERG: Well, now I interpose the objection that it calls for an opinion, conclusion, hearsay, no foundation, authentication, and--I mean there are many, many concepts within that article. So to ask him whether the whole thing is truthful is just a compound question.

THE COURT: Overruled.

MR. SHAPIRO: Was that truthful, sir?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: Was it accurate reporting, sir?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: Nothing further.

THE COURT: All right. Mr. Goldberg.

CROSS-EXAMINATION BY MR. GOLDBERG

MR. GOLDBERG: Sir, did you actually speak to someone from the Los Angeles Police Department?

MR. GOLDBERG: Well, let me withdraw that question and restate it, your Honor.

MR. BOSCO: Would you mind? I did not hear this. Excuse me.

(The witness confers with his attorney.)

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Sir, will you tell us who the source was of the statement that there had been certain results on the socks?

MR. BOSCO: Well, of course, with the--I mean, I must invoke with all due respect the California shield law.

MR. GOLDBERG: So you won't tell us the source. Will you tell us whether you actually spoke to someone that you believed to be with the LAPD?

MR. BOSCO: Again, with all due respect to the Court, I must invoke the California shield law.

MR. GOLDBERG: So what parts of this paragraph that was read to you are correct when you answered Mr. Shapiro's question about whether or not they're correct? Which parts were you answering to?

MR. BOSCO: I also answered your question to the yes, it's all correct.

MR. GOLDBERG: Okay. So you were indicating each and every sentence, including the ones that are opinions?

MR. BOSCO: I'm testifying, sir, that those two paragraphs are an accurate and--accurate representation of what I wrote and was published.

MR. GOLDBERG: Okay. But, for example, the first sentence is: "There has been enough leaking out here to camp OJ if it were a barge." Did you mean that literally, that it would somehow--the weight of the material would sink a barge or was this an opinion of yours?

MR. BOSCO: Well, let me ask you, Mr. Goldberg, do you not agree with that?

MR. GOLDBERG: No, I don't, but--

THE COURT: Excuse me. Mr. Bosco, just answer the question, please.

MR. BOSCO: Excuse me, sir.

MR. GOLDBERG: Mr. Bosco, is that an opinion of yours?

THE COURT: And, Mr. Goldberg, let's understand who the audience is for this particular hearing.

MR. GOLDBERG: I understand.

THE COURT: All right. I recognize opinions and hyperbole when I see it.

MR. GOLDBERG: Well, the point is that we can't tell here what is opinion and what here is fact from reading it. That's the only point.

THE COURT: Any other points?

MR. GOLDBERG: Well, let me ask you this, Mr. Bosco, and maybe--and we'll make it a little quicker. Would it be fair to say that a lot of what you're writing in this paragraph is your opinions as opposed to facts that you learned from some source, whatever the source may be?

MR. BOSCO: No, I do not believe that would be an accurate--of these two paragraphs?

MR. GOLDBERG: Yes.

MR. BOSCO: No, I do not believe that that would be accurate.

MR. GOLDBERG: Okay. The sentence about there being enough leaking out here to sink camp OJ, is that an opinion? Would you characterize that as an opinion?

MR. BOSCO: It's--it stands for what it stands for in those paragraphs.

MR. GOLDBERG: Well, did someone tell you that or is that a conclusion that you drew on your own?

MR. BOSCO: One second, your Honor.

(The witness confers with his attorney.)

MR. BOSCO: Excuse me. Thank you. That's what I wrote. That's what I can--that's what I believe to be accurate.

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

MR. GOLDBERG: But what I'm asking you, sir, is, is this some things someone told you or is this an opinion that you arrived at on your own?

MR. BOSCO: Again, as I said, it is what I wrote. It is accurate.

MR. GOLDBERG: Your Honor, perhaps he could be asked to simply answer the question as to whether this is something that someone else told him or an opinion that he arrived at.

THE COURT: Overruled.

MR. GOLDBERG: Sir, when you wrote here in this sentence, it's towards the bottom of the first paragraph, "Within two hours of Judge Ito admonishing the police for reckless disregard of the truth, the LAPD's worse moment to that date, a certain police officer whose leak had hereto been mostly--had hereto been mostly accurate and offered with corroboration started calling journalists with the story," can you tell us whether you had one source for that or more than one source?

MR. BOSCO: I must again with all due respect to the Court and yourself, sir, invoke the reporter's shield.

MR. GOLDBERG: Okay. Can you tell us whether you had any source for that information?

MR. BOSCO: I believe that question has been answered. A certain police officer.

MR. GOLDBERG: Did--and can you tell us whether this certain police officer told you that he called a number of journalists?

MR. BOSCO: I again must invoke the reporter's shield law with all due respect.

MR. GOLDBERG: So you can not tell us whether this information that I just read to you represents a single source as opposed to multiple sources?

MR. BOSCO: I can tell you that this is a fair and accurate representation of what I wrote and beyond that, I must again respectfully invoke the reporter's shield law.

MR. GOLDBERG: I have nothing further.

THE COURT: Mr. Shapiro.

MR. SHAPIRO: Nothing further, your Honor. Thank you.

THE COURT: All right. Mr. Bosco, thank you very much, sir.

MR. BOSCO: Thank you, your Honor.

THE COURT: You are subject to recall.

MR. BOSCO: Yes, sir.

THE COURT: All right.

MR. BOSCO: Thank you, sir.

MR. SHAPIRO: Your Honor, we would like, with the Court's permission, to have Mr. Bosco return tomorrow--he normally is in the courtroom--in the event the Court finds his testimony relevant so we may present it before the jury tomorrow.

MR. BOSCO: I still have a seat, right, your Honor?

THE COURT: All right. Anything else on this issue, counsel?

MR. SHAPIRO: Submitted, your Honor.

MR. GOLDBERG: Your Honor, I just want to respond to some of the comments that were made by counsel just a few moments ago since I did not get an opportunity obviously to do that. Your Honor I am sure recognizes that we made a multi-pronged argument as to why this type of testimony should not be allowed, including issues that I will not repeat, such as relevancy issues relating to foundation, issues relating to authentication of how it is that the individual knows who this person was that they were talking to or even if they were talking to a person. I'd like to simply respond to what I characterized I think when I previously spoke to you as being the third prong, which is whether or not the Prosecution could cross-examine a witness who presented this kind of evidence, which counsel seems to have also focused on. Now, first of all, in the State of California, the People do have the right to a fair trial. I don't know where the idea came from that only the Defense has the right to a fair trial. And we also have a right to cross-examine witnesses. And those rights would be deprived if we were to allow the kind of testimony that your Honor has just heard where someone said, "Well, what I wrote is true," and won't tell us whether they're opinions as opposed to facts, won't tell us whether it's a single source as opposed to multiple sources, won't even tell us for sure whether it is a source as opposed to double hearsay, in other words, him getting information from a journalist who then claims that they spoke to this individual. We wouldn't be able to explore any of those things as was just illustrated a few moments ago. And also, it illustrates how, if the Defense were to offer this kind of testimony, it could not be admissible without more. Now, let me just give the Court a very concrete example. Let's say that Mr. Bosco were answering questions a little bit more directly than he just did and the Defense had asked him, "Did you speak to someone on the telephone," and he said, "Yes, I did." "Was this a male or a female?" He said, "It was a male." "Was this person from the Los Angeles Police Department," and at that point the Prosecution interposed an objection, objection, no foundation for authentication. That objection would be sustained and he would never be allowed to offer the statement that, "Yes, I spoke to a member of the Los Angeles Police Department," unless the Defense could then lay a further foundation of, "Was this a voice that you recognized and was this someone you talked to in person on previous occasions sufficiently to be able to recognize their voice" when he spoke to him on the telephone. And then after that foundation had been laid, then and only then would the Court then allow him to testify, "Yes, I recognize this to be an individual that I knew to be a Los Angeles police officer." So what the little illustration that we just had in Court represents, that if all the Defense could ever do was offer the testimony that your Honor just heard, they'd never be able to establish a foundation for the statements that are contained in these two paragraphs of the article. I think it also illustrates some of the other issues that I previously mentioned, particularly relevancy and how this whole thing in all probability boils down to--and evidently boils down to nothing more than a misunderstanding of someone misrepeating or mishearing some information and then maybe misreporting the information. We wouldn't be able to explore that either on cross-examination. And for those reasons, your Honor, we say that this testimony should be precluded. And finally, your Honor, under evidence code section 352, I think the Court can see the quagmire that we would be getting into in this kind of an issue and any minimal probative value of the testimony--we say there's no probative value--would clearly be substantially outweighed by its effect in misleading the jury and confusing the issues in this trial. Thank you.

THE COURT: Thank you, counsel. All right. Anything else that we need to take up before we take our recess for the afternoon?

MR. COCHRAN: One last thing, your Honor. You may want to do it later or now. There's a motion that was filed I believe this morning. It's the Defendant's motion for statements of witnesses given in the course of an investigation by the LAPD Internal Affairs Division. I only rise now because I wanted the Court to have this motion in mind because it ties in with Michele Kestler and everything else. And so just at the appropriate time, we would like to have that set.

THE COURT: I saw that and I noted in the proof of service that the Los Angeles Police Department and the city attorney's office was not included on the proof of service. I wondered about that.

MR. DOUGLAS: Your Honor, they were--Mr. Walsh was served this morning.

THE COURT: Okay.

MR. COCHRAN: So at your convenience. You have a few things to deal with. But this ties in with what we're talking about. So I just wanted to let you know about that. That's all.

THE COURT: All right. Anything else?

MR. COCHRAN: Thank you, your Honor.

THE COURT: All right. We'll stand in recess until 9 o'clock tomorrow morning. Thank you, counsel.

(At 5:10 P.M., an adjournment was taken until, Wednesday, August 2, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)

Plaintiff,)

Vs.) No. Ba097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, August 1, 1995 volume 197

Pages 39482 through 39770, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Arthur Walsh, Deputy City Attorney Michael D. Sullivan, Esquire, Halina F. Osinski, Esquire

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I N D E X

Index for volume 197 pages 39482 - 39770

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Day date session page vol.

Tuesday August 1, 1995 A.M. 39482 197 P.M. 39640 197

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PROCEEDINGS

402 motion re: Michele Kestler 39482 197

402 motion re: Dr. John Gerdes 39686 197

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

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE (402) witnesses direct cross redirect recross vol.

Kestler, 39492n 39532gb 197 Michele

Bosco, 39753s 39760gb 197 Joseph

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DEFENSE witnesses direct cross redirect recross vol.

MacDonell, 197 Herbert (Resumed) 39540mc 39590n 39622mc (Further) 39635n

Peratis, Thano 39655 197 (Testimony read into the record from the preliminary hearing)

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Bosco, 39753s 39760gb 197 Joseph (402)

Kestler, 39492n 39532gb 197 Michele (402)

MacDonell, 197 Herbert (Resumed) 39540mc 39590n 39622mc (Further) 39635n

Peratis, Thano 39655 197 (Testimony read into the record from the preliminary hearing)

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EXHIBITS

DEFENSE for in exhibit identification evidence page vol. page vol.

1281 - 5-page report 39499 197 from Cellmark dated September 8, 1994

1282 - 1-page document 39499 197 facsimile dated September 16, 1994

1283 - Videotape 39647 197 of the testimony of Thano Peratis at the preliminary hearing

1284 - 5-page document 39663 197 described as the Grand Jury testimony of Thano Peratis on June 22, 1994, at 2:00 P.M.