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 c