Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also present, Paul M. Kistler, Esquire, representing Matthew H. Schwartz, Esquire; Matthew H. Schwartz and Ron Regwan, Esquire, representing Laura Hart McKinny.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck. The People are represented by Miss Clark, Mr. Darden and Mr. Kelberg. The jury is not present. The record should reflect that we had a brief in chambers conference this morning to--the purpose of which was for counsel to alert the Court of certain issues that will be coming up shortly. Mr. Cochran, anything else? Mr. Clarke, anything else we need to discuss before we invite the jurors to join us?
MR. COCHRAN: I would like to, if I might. Good morning, your Honor.
THE COURT: Mr. Cochran again.
MR. COCHRAN: Your Honor, in this matter first there are really two things and the one perhaps can wait, but the first thing I would like to call to your Honor's attention and to get a clarification, I think that your Honor's order of yesterday was greatly misunderstood by the so-called legal pundits and others and there was perhaps premature celebration by some and not I think understanding what the import of your Honor's ruling. We expect that ruling, your Honor, with regard to the discovery issues under that, but the Court will recall that in the course of Mr. Uelmen's argument, Professor Uelmen's argument, he had indicated that we felt that we had a right to call Mr. Bosco because certainly there had been a waiver of the shield law with regard to the article that was published in penthouse last year. And we had never intended to ask Mr. Bosco who his sources were, so I wanted to indicate to the Court and make sure that my understanding was correct, that we still plan on calling him after the testimony of Dr. Baden. We also plan, as you know, to call Michele Kestler. She will be on a number of issues, and we still also believe that Tracie Savage can be called from the standpoint. We cannot pierce the shield law perhaps at this point, but we think there is certainly relevant testimony with regard to the fact that she made this report, made two reports if the Court recalls, and the reports were in error, and the reports fit right into what we believe is a reasonable inference that can be drawn. So the point I just wanted to make that your order did not preclude us from calling those individuals and we still plan to do it next week. Now, I understand the People may still have some further objection, and that is fine, but I'm just putting everybody on notice that we plan to do that next week, your Honor.
THE COURT: I'm surprised you take your legal analysis from the pundits.
MR. COCHRAN: I don't, your Honor. Other people told me about that. I tried not to do that and that is why I was amused last night when everybody told me everybody was making these statements.
THE COURT: I don't depend on the pundits to tell me what it was I meant when I ruled.
MR. COCHRAN: I think, your Honor, we have a better understanding of what you meant and we had talked about this in chambers and did in fact want to put this on the record.
THE COURT: Thank you, counsel.
MR. COCHRAN: With regard to the North Carolina matter, I can address it now, or perhaps address it later in the morning, whatever your Honor's pleasure is. I can make a brief statement now if the Court will care.
THE COURT: Let's save that. Let's use our jury time, since we have already burned up a half hour.
MR. COCHRAN: Sure. Fine.
MS. CLARK: I'm not going to spend anytime correcting the legal pundits. We understand what the Court's ruling was and I think that is all that is required. I had indicated to the Court earlier that we had filed motions concerning the admissibility of that testimony as an issue apart from the discovery matter.
THE COURT: Yes. That was part of your points and authorities regarding my Michele Kestler.
MS. CLARK: That's right, your Honor. I just wanted to point out to the Court, because we have filed so many, that the briefs I'm referring to are trial briefs 8 and 12 that address the issue.
THE COURT: All right. Mrs. Robertson, would you have the law clerks pull 8 and 12. We will just get ready for that argument again somewhere, probably early next week, I suspect.
MS. CLARK: Okay.
THE COURT: All right. All right. Anything else before I invite the jury to join us? All right. Deputy Magnera, let's have the jury, please.
(Brief pause.)
MR. COCHRAN: Judge, may we approach on one other issue now?
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: The record should reflect that we have been rejoined by all the members of our jury panel. Ladies and gentlemen, I had a--excuse me. Deputy, I think we need to leave that.
THE BAILIFF: Okay.
THE COURT: That is the beverage of choice of the witness. Ladies and gentlemen, my apologies to you for the delays yesterday. A number of issues came up that I had to resolve out of your presence and it just wound up taking more time. And the witness was not--the next witness was not then available in the afternoon, as I had anticipated, so my apologies to you. I hope they took you out and did some extra shopping or something yesterday. And we will proceed with a full Court day today. All right. The Defense--Mr. Shapiro, are you going to present the next witness?
MR. SHAPIRO: Yes, I am. Thank you very much, your Honor.
THE COURT: All right.
MR. SHAPIRO: Good morning. Your Honor, with the Court's permission we call Dr. Michael Baden.
THE COURT: All right. Dr. Baden.
Michael Baden, called as a witness by the Defendant, 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.
DR. BADEN: I do.
THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.
DR. BADEN: Michael Baden, B-A-D-E-N.
MR. SHAPIRO: Good morning, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION BY MR. SHAPIRO
MR. SHAPIRO: Good morning, Dr. Baden.
DR. BADEN: Good morning, Mr. Shapiro.
MR. SHAPIRO: How are you today?
DR. BADEN: Fine, thank you.
MR. SHAPIRO: Dr. Baden, is what your profession?
DR. BADEN: I'm a physician, medical examiner forensic pathologist.
MR. SHAPIRO: And what is your educational background that qualified you to attain that position?
DR. BADEN: Well, I received a bachelor of sciences degree from the city college of New York in 1955 and a medical degree, Md. degree, from New York University school of medicine in 1959.
MR. SHAPIRO: Let me ask you now at city college, did you receive any awards?
DR. BADEN: Yes.
MR. SHAPIRO: What did you receive?
DR. BADEN: I was senior class president, Phi Beta Kappa, editor in chief of the newspaper and I was essentially the valedictorian. I spoke at the commencement for the students.
MR. SHAPIRO: And where was that college located?
DR. BADEN: It is located in upper Manhattan, New York City, Harlem area of New York City.
MR. SHAPIRO: And from there you went to medical school?
DR. BADEN: From there I went to New York University medical school, which is also in manhattan.
MR. SHAPIRO: And how long did you attend there?
DR. BADEN: From 1955 to 1959.
MR. SHAPIRO: And upon graduation?
DR. BADEN: Upon graduation where I received the medical degree, I then did an internship residency, chief residency, at Belleview Hospital medical center in New York City, which is associated with at that time New York University school of medicine, also Colombia Presbyterian school of medicine.
MR. SHAPIRO: And who were your supervisors at that internship?
DR. BADEN: Well, my first two years at Belleview hospital I was an intern and resident in internal medicine under the training of Dr. Dickinson Richard, Dr. Andre Cornon, who had just won the Nobel prizes in medicine for their work on heart and lung disease, and I specialized in that.
MR. SHAPIRO: So this is internal medicine, heart and lung, something which you are not specializing in now, but which you have a background in?
DR. BADEN: That's correct.
MR. SHAPIRO: Tell the jury about the rest of your medical training at this level.
DR. BADEN: After those two years--two years in internal medicine, I then switched over to pathology internal medicine I treated live people and in pathology I tried to find out what was wrong with people by various tests, autopsies, blood tests. In pathology--I stayed in pathology from--for the next four years being resident, chief resident in pathology, fellow at Belleview hospital, and finished my training in pathology in 1965.
MR. SHAPIRO: After your formal education did you get any appointments as a medical examiner?
DR. BADEN: Yes. While--while a resident physician at Belleview hospital, beginning around 1960 when I was licensed to practice medicine in New York state, I moonlighted--I worked for the medical examiner's office on a part-time basis as an assistant medical examiner for the city of New York, which is much like the Coroner medical examiner system in Los Angeles. And on completion I stayed there the four years--five years, and on completion of my training in pathology at Belleview, my official training, I then became a full-time medical examiner for the city of New York.
MR. SHAPIRO: And the appointments that you had in New York, were they made by any specific person or persons?
DR. BADEN: Well, my initial--
MR. SHAPIRO: How does that system work in New York?
DR. BADEN: In New York City it worked as part of at that time--at that time as part of the civil service system, that it was--the initial entry positions of part-time position when I was at Belleview hospital, and then my first appointment was at the discretion of the chief medical examiner, Dr. Milton Helpburn at that time, and then all the subsequent positions are by examinations and merit in the civil service system of the city of New York.
MR. SHAPIRO: Will you tell the jury about the subsequent appointments, how they came about and what positions you have held.
DR. BADEN: Yes. I remained as a full-time medical examiner, junior medical examiner, associate medical examiner, and then I was appointed about the end of 1960's, around `69, `68, as deputy chief medical examiner city of New York. I remained in that position for about nine years and then was appointed from a civil service list as chief medical examiner for the city of New York, and I remained in that position for a year and reverted back to deputy chief medical examiner in the city of New York.
MR. SHAPIRO: When you say you "Reverted back," what were the circumstances surrounding that?
MR. KELBERG: Objection, your Honor, as calling for hearsay or calling for speculation.
THE COURT: Overruled.
DR. BADEN: The circumstances were that the mayor at the time, Mayor Koch felt--wanted somebody else to be chief medical examiner and accumulated certain statements from the five District Attorneys in New York City--unlike most cities, New York City is one city and five counties, which is just a reverse usually, and there is Brooklyn and Manhattan and Bronx, Staten Island.
THE COURT: We call them boroughs.
DR. BADEN: We call them boroughs, but counties, actual counties, as opposed to Los Angeles County which has a lot cities. New York City is one city that has a lot of counties, and each county, each borough, has a District Attorney, but there is one chief medical examiner that handles all five boroughs, so at the time, after I had been chief examiner for a year, mayor Koch asked for opinions from the five District Attorneys, four of whom were very pleased with my work and one of whom, the District Attorney of manhattan, umm, felt I wasn't a team player and felt I shouldn't be chief medical examiner.
THE COURT: All right. Let's move on.
MR. SHAPIRO: And this is something that you have spoken about freely and in fact have written about published in material?
DR. BADEN: Written about it, yes.
MR. SHAPIRO: Published material?
DR. BADEN: Yes.
MR. SHAPIRO: Now, you say about being a team player. What in your opinion is the role of a medical examiner, an independent medical examiner?
DR. BADEN: My opinion is that a medical examiner, chief, has to be an independent finder of scientific facts and truths, regardless of where those findings lead. We speak as much for the Defendant as for the Prosecutor. We speak as much for the doctor as for the patient. That we speak for the dead person and we are supposed to find in any death as much information that can properly determine how a person died and then answer--anticipate answering any questions that might arise later, whether criminally or civilly, or by the family. The family has a right to know how a loved one died, so the medical examiner, although working in a political system, which is a problem, has to remain an independent scientist and independent physician and be impartial to any sides that might be concerned in how a person died.
MR. SHAPIRO: And is that how you view your role?
DR. BADEN: Yes.
MR. SHAPIRO: Has that ever changed?
DR. BADEN: No.
MR. SHAPIRO: In the course of your career in New York as a medical examiner, did you come in contact with Dr. Lakshmanan?
DR. BADEN: Yes.
MR. SHAPIRO: Would you tell the jury about that, please.
DR. BADEN: In the mid-seventies, I guess, 1977, `78, around that time, Dr. Lakshmanan did what I had done ten years earlier and he was kind of--he moonlighted--he was a pathology resident in one of the hospitals in New York City and he would do extra work in the medical examiner's office and under my supervision, as I had done when I was a resident at Belleview hospital, so he was a moonlighting pathologist learning about forensic pathology in New York City.
MR. SHAPIRO: Have you done any work in the field of teaching?
DR. BADEN: Yes.
MR. SHAPIRO: Related to your expertise as a forensic pathologist and medical examiner?
DR. BADEN: Yes.
MR. SHAPIRO: Would you kindly tell the jury what that has entailed.
DR. BADEN: Yes. I teach aspects of medical work, forensic medicine, forensic pathology, at a number of institutions. I am presently visited professor of pathology at Albert Einstein school of medicine in New York City, a adjunct professor of pathology and laboratory medicine at Albany medical center in Albany New York. I've just completed a visiting professorship as John Jay school of medicine--John Jay school of Criminal Justice which teaches law enforcement persons and gives a degree in law enforcement. And I am on the faculty or have been on the faculty at New York University school of medicine, Colombia physicians and surgeons school of medicine. In all these capacities I do teaching in--part-time teaching in forensic medicine; some are courses, some are just lectures.
MR. SHAPIRO: And who are you teaching? Who are the students that you address?
DR. BADEN: The students are either medical students, law students. I have been a professor at New York law school. Medical students, law students, house staff residents and law enforcement personnel.
MR. SHAPIRO: There has been a lot of expert witnesses who have testified about professional associations. Would you share with the jury any professional associations that you belong to and any positions you have held within those associations.
DR. BADEN: Yes. I'm past president of the society of medical jurisprudence, past vice-president of the American academy of forensic sciences, a fellow in the college of American pathology and other organizations that pertain to what pathologists and forensic pathologists do.
MR. SHAPIRO: Do you attend meetings?
DR. BADEN: Yes.
MR. SHAPIRO: Of associations?
DR. BADEN: Yes. I attend meetings of associations, I run conferences on forensic medicine which I am supposed to do next week.
MR. SHAPIRO: When is that?
DR. BADEN: Which I'm supposed to do next week, Monday.
MR. SHAPIRO: When?
DR. BADEN: Monday. Sunday.
MR. SHAPIRO: Well, hopefully we will be finished with you before that time.
DR. BADEN: Thank you.
MR. SHAPIRO: Regarding publications, has any of the things you have studied and taught in your field been published?
DR. BADEN: Yes. I have published some eighty articles or been co-author relative to medical examiner work, mostly drug abuse, alcoholism, which I was interested in especially when I was in New York City. I have written a number of chapters in textbooks and I have been author of a book on alcohol, drugs and violent death. I edited a textbook on forensic medicine, legal medicine that was published in japan.
MR. SHAPIRO: What is the name of that book, do you recall?
DR. BADEN: Atlas of legal medicine, which is the first English book in forensic medicine in japan in the 1960's that I am aware of. And I recently did write a book meant for explaining to the public what medical examiners do called unnatural death, confessions of a medical examiner.
MR. SHAPIRO: And that tells basically your life story and--
DR. BADEN: Well, it goes into some of the--the investigation that I have been involved with that I thought could be informative as to how medical examiners should function and on how bad the system is in general in the United States.
MR. SHAPIRO: So--
THE COURT: Excuse me, gentlemen. Doctor, if you would, would you allow Mr. Shapiro to complete asking the question before you start to answer, because the court reporter is having some difficulty.
DR. BADEN: I apologize, sir, yes.
MR. SHAPIRO: And basically explain to the jury what your thoughts were in that book.
DR. BADEN: My thoughts are and were that medical--the investigation of unnatural death in this country is really a national disgrace, that most jurisdictions, not--not Los Angeles, but in the United States, most jurisdictions, untrained people investigate homicide and accidents and suicides, both from an investigation at the scene point of view, which are often done by a funeral director, and from an autopsy, which is usually done by a hospital pathologist who is super on natural death, heart disease, cancer, stroke, but have no training in gunshot wounds and automobile accidents and suicide, which leads to lots of errors that occur around the country.
MR. SHAPIRO: Did you also talk about that in book your background and what attracted you to the field of forensic medicine?
DR. BADEN: Yes, I did.
MR. SHAPIRO: And what did you say in that regard?
DR. BADEN: I think in general I commented, I wrote about how initially when I went to NYU medical school and Belleview hospital I trained to be a real doctor and treat people who were sick, and while at Belleview hospital, because of the coincidence that at Belleview was where the medical examiner's office for New York was situated, when I used to come down and see deaths that had occurred at Belleview from heart disease and cancer, I would see often the Coroners, medical examiners, investigating deaths of auto accidents and suicides and homicides, and Belleview at NYU at that time, and still, was a mayor institution investigating natural disease which I was very--I had a number of professors who were Nobel laureates. And when I saw in the medical examiner's corner that there was very little interest on investigations by academic medicine into violent death, which involves about seven or eight percent of deaths--all other deaths would be natural deaths or suicide--and I just felt that by going into forensic pathology, I could contribute more to preventing suicide, drug addiction, alcohol, even homicides, than by being another person trying to cure cancer. So that is--it was just a coincidence of my being at NYU where the medical examiner's office was situated that turned me on to forensic pathology and, umm, where I have been for the past forty years.
MR. SHAPIRO: As a young doctor did you find something exciting about the field of forensic pathology?
DR. BADEN: Oh, I think initially it was exciting to hear something on the radio about somebody dying and somebody being killed and coming into the autopsy room and seeing the individual there and seeing how the doctors were able to, within an hour or so, figure out a puzzle, a puzzle as to why somebody died. And with the proper investigation work proper autopsy, with proper evaluation and with experience, magic occurred. The human body gave forth secrets that permitted the answering of a lot of questions, mostly for the family, because the family is most concerned about the dead body, but also for insurance companies and hospitals and law enforcement. We saw that if a hospital made a mistake, we would notify the hospital and try to correct them so they wouldn't make the same mistake again, and it was all very exciting. The media attention initially was very exciting, that the people paid attention to this and the daily news and other things, but the media rapidly wore off.
MR. SHAPIRO: Are there such areas appointed by different governmental agencies that are known as commissions that are formed to investigate deaths?
DR. BADEN: Yes.
MR. SHAPIRO: Would you explain to the jury what those commissions are basically.
DR. BADEN: Yeah. At different levels of government groups can be set up to try and assist in dealing with all kind of problems, when these bodies get involved in deaths, where deaths occur, because lots of things happen without deaths and often a medical examiner will be called in as part of the group. In this regard I have been on commissions.
MR. SHAPIRO: Well, let me ask you some questions in that regard: Let's start first with the state level. Are there commissions on the state level that you have been involved with?
DR. BADEN: Yes, yes.
MR. SHAPIRO: Would you please tell the ladies and gentlemen of the jury about the state commissions and the highlights of those commissions.
DR. BADEN: Yes. I'm a member of the New York state commission that investigates all deaths that occur in prisons and police custody in New York state. One of the reasons this commission is set up is because it is often very difficult for a locality, for a borough, for a county to investigate itself, so that the state, after the Attica deaths, Attica prison uprising in the early 1970's where there were a lot of complaints about how prisoners were treated by guards, governor Rockefeller set up a five-member commission to examine all health care and all deaths that occur in custody. And I have been the forensic pathology member of that group since, some twenty years now.
MR. SHAPIRO: Do you get reappointed to that?
DR. BADEN: Yes. Each--it is a five-year term so I have been appointed by governor Rockefeller and reappointed by Governor Carey, by Governor Cuomo and I will be up shortly for a new governor, but it is appointed by the governor with the approval of the legislature. The legislature acts on it. It is a non-paid position, but it is--has a lot of authority to examine health care. We have over a hundred thousand people in jail--in jails in New York state--to make sure that it is done properly.
MR. SHAPIRO: The governors in New York that you mentioned, are they members of both political parties, both democrats and republicans?
DR. BADEN: Yes. I have been appointed by both, democrat and republican, and I am not political I think.
MR. SHAPIRO: Any other commissions on the state level?
DR. BADEN: There was another commission that was established about ten years after this--I'm sorry.
MR. SHAPIRO: The Judge is looking at me and he wants me now to ask you to wait until I finish the question.
DR. BADEN: Sorry. I apologize.
MR. SHAPIRO: Okay. Thank you, because it is really very difficult.
DR. BADEN: This chair does things to people.
MR. SHAPIRO: We've heard that before. Please continue.
DR. BADEN: Umm, there is a similar commission that was where the governor appoints people, physicians, lawyers, mental health workers, to examine all medical care and all deaths that occur in mental hospitals throughout New York state, and I'm a forensic pathologist member of that commission, so we look into how people are treated while alive and to make sure that the investigations into how they die is done properly or we do our own investigation.
MR. SHAPIRO: Just as there are state commissions, are there international commissions that have been formed by international groups?
DR. BADEN: Yes. There are more and more international requests for assistance in investigating deaths around the world that may be controversial in the local--in the police where the persons dies.
MR. SHAPIRO: Have you been appointed to any of those commissions?
DR. BADEN: Well, I have been requested by various groups to do autopsies, reautopsies in other counties, yes.
MR. SHAPIRO: Would you explain to the ladies and gentlemen of the jury just the highlights of some examples of work you have done on the international level.
DR. BADEN: Yes. Eventually about a year or two--a year ago, I went with a group of American scientists to Croatia to identify persons who died in the current Serbo-Croatian conflicts, by autopsy and DNA techniques. I have been over to at--at the request of various human rights groups, to the Gaza Strip and to the West Bank in Israel to investigate prisoners, Palestinian prisoners who died in Israeli jails and do autopsies there. I have been over about three years ago to--at the request of the U.S. State Department and the Russian government, to Russia to examine remains that had been found that were thought to have been the Romonoff family and Nicholas and Alexandra and Anastasia, people who were murdered in 1918 at the time of the communist revolution. And I have been to many countries to do teaching and training in how to do proper forensic investigation into violent deaths, in Panama, Colombia, Ecuador, at various governmental requests.
MR. SHAPIRO: Does the United States government form commissions to investigate deaths of a high-profile nature?
DR. BADEN: Yes, they may.
MR. SHAPIRO: And have you been appointed to any such commissions?
DR. BADEN: Yes.
MR. SHAPIRO: Would you point out to the ladies and gentlemen of the jury the highlights of commissions that you have been appointed to by the United States government.
DR. BADEN: The highlight would be I was asked to be chairman of the forensic pathology panel of the United States congressional select committee in assassinations at the end of the 1970's that was formed to investigate the deaths of president John F. Kennedy and Dr. Martin Luther King. And there were two panels; one to investigate the death of president John Kennedy and one to investigate the death of Dr. King and I was the chairmen of both for the pathologist investigation.
MR. SHAPIRO: Were reports generated as a result of those committees?
DR. BADEN: Yes. The reports were generated, we had to give our findings and in a public congressional committee.
MR. SHAPIRO: And did you make findings regarding your opinion, from a forensic pathologist's point of view, of the death of president John F. Kennedy?
DR. BADEN: Yes, I did.
MR. SHAPIRO: And did you, as chairman of your committee, make recommendations to the United States government as to the cause and manner of death of the killing of Dr. Martin Luther King?
DR. BADEN: Yes, and it goes further, and some of the--the causes of death are pretty obvious. It goes into certain aspects of the death, how close was the weapon, the trajectory of the bullet wounds. The least important thing that a medical examiner does is determine the cause of death in 95 percent of the cases, because in 95 percent of homicides there is blood coming out of the skin and the police are super at tracing the blood back to the home, the body, and determining if it is a gunshot wound or a stab wound or a baseball bat. Our--for a medical examiner to confirm the obvious, that president Kennedy died of a gunshot wound, doesn't contribute much. The medical examiner is supposed to contribute other information to the cause of death, protect evidence, take the right sections, tissues, documentation, protect trace evidence. So there--the cause of death is usually the least important part of what we are doing.
MR. SHAPIRO: And would you describe to the ladies and gentlemen of the jury the purpose of the examination of the death of Dr. Martin Luther King?
DR. BADEN: Yes. Yes. Dr. King died of a gunshot wound of the right cheek that then went into the chest and lung and caused damage to the spine also, a single rifle bullet wound, and that was pretty straightforward. But an issue had arisen that because there was under the microscope little black dots under the microscope in the skin of the entrance wound, that this was though by some to be a close contact wound, because when a bullet comes out of a weapon, this was a rifle, powder come out with the bullet and the powder can go up to about 24 inches, and if we see powder on the skin, that means the weapon was pretty close. If we don't see powder, it means further away. And although James Earl Ray had been identified as the shooter from a hundred yards away, his discharge, his shooting of the weapon should not have left any powder on the skin, so there was an issue about somebody being closer to Mr. King, Dr. King. And what we were able to do ten years later is go down to Memphis, Tennessee, get the slides, get the material, look at the scene of death that the site of death occurred and actually take out the little pieces of black material that was in the skin and have it analyzed in the laboratory.
And it turned out that these little black dots were not powder from a gun, but were little fragments of lead from the tip of the lead bullet that was fired. The bullet that was used to kill Dr. King was a rifle bullet with a soft nose lead meant for big game hunting and little fragments of lead had broken off and gave the appearance of it being gunshot powders from a close contact--close discharge. And our commission was able to show that that wasn't true and that took away that aspect of congress' concern that there was a mistake made in the investigation into Dr. King's death.
MR. SHAPIRO: In that regard you said that you did an examination ten years later. Is that part of your training and part of the science, that you can, with expertise, come in and evaluate things relating to death some significant period of time later?
DR. BADEN: Yes, yes. A forensic pathologist is trained not only to do autopsies and to interpret autopsies, but also to examine and interpret what other persons do to examine remains that may be as with the Romonoff family eighty--seventy years old, to review what other pathologists have done, as with Dr. King or with president Kennedy. We reviewed the president Kennedy material and were able to do that fifteen or twenty years later, 25 years later. Sorry, sorry, sorry. 16 years later--`63 to `78, sorry, and that is the purpose. The purpose of a medical/legal autopsy is not only to make findings, but also to document the findings so that others later on can come and review the material. I know when I do an autopsy on somebody who has been shot, for example, that the--they may have another pathologist coming for the other side to review the material because this may come to court, so it is very common for medical examiners to review each other's work. And we are obligated, as part of the forensic autopsy, to document everything by photographs, by microscopic slides, by x-rays, by toxicology and by the written--the dictated record, so that somebody else can come later on and independently make his or her own judgment and that is what an autopsy is. It is a documentation of findings, so we can come back twenty, thirty, fifty years later and still arrive at opinions as to how things happened.
MR. SHAPIRO: In the course of your career could you estimate for the jury how many autopsies you have personally performed?
DR. BADEN: Over the years I have performed going back to 1955, I guess when I started out in medical examiner's office as a volunteer, over 20,000 autopsies.
MR. SHAPIRO: And how many autopsies have you supervised, approximately?
DR. BADEN: Many times that number. When I was medical examiner of New York City we performed--the office performed something like seven or 8000 autopsies a year and there were about eight physicians doing autopsies and we would do a thousand or more than a thousand autopsies each year.
MR. SHAPIRO: You've told the jury of the major cases that you have reviewed. Can you approximate how many cases of autopsies you have reviewed that were performed by others?
DR. BADEN: Umm, I--over the years there would be many hundreds, thousands of autopsies--just autopsies, not the remains?
MR. SHAPIRO: Well, both, autopsies and remains?
DR. BADEN: Oh, I have reviewed--
MR. SHAPIRO: Call--
DR. BADEN: When I was medical examiner commonly there would be eight autopsies going on at a time and commonly review thousands of autopsies each year that other doctors did.
MR. SHAPIRO: Are you frequently called upon, as a consultant, to review findings of others in the field of medical examination relating to death?
DR. BADEN: Yes.
MR. SHAPIRO: And are you called by members of both the Prosecution and the Defense?
DR. BADEN: Yes.
MR. SHAPIRO: And as a result of those investigations is it more common to be called as a witness or more common not to be called as a witness?
DR. BADEN: It is more common, once I have given my opinions and reviewed, not to be called as a witness.
MR. SHAPIRO: And is that--what is the reason for that, in your opinion?
MR. KELBERG: Objection, your Honor. Calls for speculation and hearsay and lack of foundation.
THE COURT: Sustained.
MR. SHAPIRO: Do you always agree with the side that hired you to investigate a case?
DR. BADEN: No, not at all.
MR. SHAPIRO: And in fact, is it not--is it more common that you do not agree with the side that called you to do the investigation?
MR. KELBERG: Objection, leading.
THE COURT: Overruled.
DR. BADEN: It is more common that I would disagree with some significant aspect of the theory of whichever side has asked me to review the case, so it is more common for me to disagree than to be in agreement.
MR. SHAPIRO: How many times have you testified as an expert--as an expert witness in your field, approximately, again?
DR. BADEN: Many hundreds of times, maybe a thousand. Counting grand juries it would be well over a thousand times, many hundreds of times.
MR. SHAPIRO: Now, you have told us that the majority of your work has been work for governmental agencies. Does that mean that primarily you are called by Prosecutors to render testimony?
DR. BADEN: Yeah. My work principally is working, as most medical examiners do, work for a governmental agency, either the city or the state, and in that regard, in all of my official work, I would be called by the Prosecutor's office, but in my private capacity not the same.
MR. SHAPIRO: Regarding cases that you have been called to testify by Prosecutors, could you give the jury some highlights of cases that you have participated in as a witness for the Prosecution?
DR. BADEN: Yes. I--I was recently a witness for the Prosecution--for a Prosecutor of Jackson, Mississippi, in the reinvestigation of the death of Medgar Evers who had been a civil rights leader who had been killed in 1963, shortly before Robert Kennedy was shot, the same year, and 29 years later we were able to exhume the body to learn information and that lead to trial last year, went to trial and a result thirty years later last year in--31 years later.
MR. SHAPIRO: Any other cases that would be highlight cases outside of the County of Los Angeles that you have testified for the Prosecution?
DR. BADEN: Umm, yes. I have been a witness for the Prosecutor's office in Detroit recently, in Detroit, Michigan, in a case in which a young man, Malice Greene, died by being subdued by police, and there was an issue of whether he died because of police action or because of cocaine drug use, and I was an expert for the Prosecutor in that area. I have been an expert for the Prosecutor in Lancaster County and a number of times in Pennsylvania exhuming--just exhumed the body of a child that has been dead for some ten or fifteen years with a case of possible child abuse, and the body has just been exhumed and the Prosecutor--further investigation is being done in that regard. So medical examiners commonly deal with bodies that have--deaths have occurred some time before.
MR. SHAPIRO: Regarding the County of Los Angeles, have you been contacted by Prosecutors from the District Attorney's office of the County of Los Angeles in the past?
DR. BADEN: Yes.
MR. SHAPIRO: And would you share with the ladies and gentlemen of the jury highlight cases that you have been contacted to investigate on behalf of the People of the County of Los Angeles by the District Attorney's office?
DR. BADEN: Yes. I think the first contact was in the death of John Belushi in the early 1980's where I was an expert for the District Attorney's office in Los Angeles, testified in the grand jury, testified at the trial, relative to the cause of Mr. Belushi's death, because there were drugs on board and a criminal trial resulted in which I testified for the Los Angeles County District Attorney's office.
MR. SHAPIRO: Do you recall who the Prosecutor was in that case?
DR. BADEN: Mr. Montagna.
MR. SHAPIRO: Is he still with the District Attorney?
DR. BADEN: He is still there and he's a wonderful District Attorney. As I understand, yes, he is still with the District Attorney's office.
MR. SHAPIRO: Do you still have contact with him?
DR. BADEN: Yes, yes, Michael Montagna. And then around the same time I was involved in the investigation, reautopsy of a death of a young athlete, a football player in Los Angeles County, Ron Settles, who died in a police precinct in Signal Hill. He had been a well-known football star at the university, and initially I was called by the attorney for the family, Mr. Cochran, Johnnie Cochran, this was back in 1983, and later on was taken on also as an expert in the reautopsy and exhumation by the District Attorney in Los Angeles County whose name was Mr. Gil Garcetti.
MR. SHAPIRO: He was not the District Attorney at the time?
DR. BADEN: He was one of the assistant District Attorneys, and various physician--physicians present who came--I was at that time on sabbatical--on a leave of absence from New York City, and I was working in Suffolk County and I and Dr. Weinberg, the chief medical examiner, did the autopsy and Dr. Tom Noguchi, who was at that time the chief medical examiner in Los Angeles, came representing the People of Los Angeles, and Dr. Werner Spitz, whose book has been brought forth by Mr. Kelberg, was the expert who was hired by the Signal Hill Police Department or PBA. And so all of us, some fifteen years--twelve years ago, were in a little autopsy room for about two days and resolved the issue that in my opinion that Mr. Settles had not died of suicidal hanging, as was initially thought, but that he died at the hands of another.
MR. SHAPIRO: And did Mr. Garcetti testify in a deposition as to the quality of your performance on behalf of the District Attorney?
DR. BADEN: Mr. Garcetti was--
MR. KELBERG: Move to strike as nonresponsive.
THE COURT: Sustained.
MR. SHAPIRO: Did he testify?
DR. BADEN: I'm sorry.
MR. SHAPIRO: Did he offer testimony to your knowledge?
DR. BADEN: He testified at some subsequent hearing.
MR. KELBERG: Move--
DR. BADEN: Yes, he testified at a hearing.
MR. KELBERG: I will move to strike everything other than "Yes" and it is irrelevant.
THE COURT: Sustained. Sustained.
MR. SHAPIRO: The yes answer stays, your Honor?
THE COURT: The yes answer stays.
MR. SHAPIRO: That Mr. Garcetti did testify at a deposition?
DR. BADEN: Yes.
MR. SHAPIRO: And to your knowledge was he asked questions about your competence and capabilities?
MR. KELBERG: Your Honor, I will object as irrelevant.
THE COURT: Sustained.
MR. SHAPIRO: More recently have you been called upon by the Los Angeles District Attorney in the last five or six years to offer testimony and consultation regarding any high-profile homicide case?
DR. BADEN: Yes.
MR. SHAPIRO: Would you explain to the ladies and gentlemen the circumstances and the case involved.
DR. BADEN: There is about six years--it started about six years ago where a Dr. Boggs, B-O-G-G-S, was involved with the death of a person in his office in Glendale. And because of the investigation of Detective Perkins of Glendale, a scheme arose whereby three persons were thought by the Prosecutor--by the detectives to have engaged in a complicated scheme to insure each other for one and a half million dollars and then have a dead body--or kill somebody--misidentified and collect the proceeds. And this happened with one body, and in the investigation by the police department it turned out that the person had been misidentified. And I came down to review the autopsy findings. I was asked by the District Attorney's office of Los Angeles to come to Los Angeles to go to the medical examiner's office to review the cause of death, because the cause of death was listed as a heart attack of some type, and that didn't make sense with the history that was obtained. So I reviewed it and went over the record. It was my opinion that this young man had been suffocated, died of homicidal suffocation. A trial was held back about five, six years ago. Dr. Boggs was convicted and recently the--
MR. SHAPIRO: Let's just follow up on that for a moment if we can.
DR. BADEN: Yes.
MR. SHAPIRO: How did you come to get involved in the consultation and later testimony for the District Attorney's office regarding the Prosecution of Dr. Boggs?
DR. BADEN: My understanding is that when--
MR. KELBERG: Move to strike, your Honor, calling for hearsay, lack of foundation or speculation.
THE COURT: Sustained. Rephrase the question. I think that the fact that he was contacted by the District Attorney to offer testimony in a case speaks for itself.
MR. SHAPIRO: Well, I appreciate that, your Honor, but I think it becomes very significant if we could approach.
THE COURT: Proceed, but we have spent almost an hour now on qualifications. Proceed.
MR. SHAPIRO: I'm trying to go as quickly as possible. His resume is quite extensive.
MR. KELBERG: Your Honor, I will ask counsel not to--
THE COURT: I am trying to speed this up as quickly as possible.
MR. SHAPIRO: While you have been working on the O.J. Simpson case have you been called to testify in the Los Angeles County District Attorney's office in this very building on this very floor?
DR. BADEN: Yes.
MR. SHAPIRO: Would you tell the ladies and gentlemen of the jury about that.
DR. BADEN: Yes. After Dr. Boggs was convicted, the two other associates were--disappeared and were hard to find and the District Attorney's office and the police department did find them in the past year or two, one through the Oprah Winfrey program in Sardinia, where he had gone with a lot of money from the initial insurance scam, and they were brought back here and brought to trial in this building in a courtroom down the hall in the past two months or so, and they have been on trial and the trial just ended last week. The trial ended and a verdict just came back on that.
MR. SHAPIRO: And in that case was there also testimony by a Coroner from Los Angeles?
DR. BADEN: Yes. There was testimony from a Coroner who had done the autopsy again in Los Angeles and then--and I testified twice actually in that case on direct and on rebuttal in that case.
MR. SHAPIRO: And the jury rendered a conviction in that case?
DR. BADEN: Yes.
MR. SHAPIRO: Who was the Prosecutor in that case?
DR. BADEN: Mr. Albert MacKinzie, also a terrific District Attorney in Los Angeles District Attorney's office.
MR. SHAPIRO: Now, was that done as part of your outside practice away from your paid position with the State of New York?
DR. BADEN: Yes.
MR. SHAPIRO: And do you charge the same rates to Prosecutors and to the District Attorney's office as you do to private clients like myself who retain your services for consultation and evaluation?
DR. BADEN: In Los Angeles I do, yes.
MR. SHAPIRO: Okay. And what is that rate?
DR. BADEN: I charge $1500 a day, whatever the time is involved.
MR. SHAPIRO: And your airfare and other expenses are paid by the person who contacts you?
DR. BADEN: Yes. That I will be paid $1500 a day--I will charge $1500 a day plus whatever the expenses are.
MR. SHAPIRO: And that is the same whether or not you are called by the L.A. District Attorney or you are called by myself?
DR. BADEN: That's correct.
MR. SHAPIRO: When did you initially get involved in the case regarding O.J. Simpson?
DR. BADEN: I was called by you around midnight on June 14th of last year. I received a call, a telephone call while I was in New York City.
MR. SHAPIRO: And did I request that you immediately come out for consultation?
DR. BADEN: Yes.
MR. KELBERG: Objection, leading.
DR. BADEN: Sorry.
THE COURT: All right. The answer will stand.
MR. SHAPIRO: I'm trying to speed it up, your Honor.
THE COURT: All right.
MR. SHAPIRO: And when did you arrive in Los Angeles?
DR. BADEN: I think I arrived on the 16th. May I just check my notes? On the--June 16th I arrived in Los Angeles.
MR. SHAPIRO: Did you come--
DR. BADEN: On Thursday.
MR. SHAPIRO: Did you come with any other expert witness?
DR. BADEN: Yes.
MR. SHAPIRO: Who did you come with?
DR. BADEN: Dr. Henry Lee.
MR. SHAPIRO: And were your services offered to the Los Angeles Police Department to aid them in their investigation?
MR. KELBERG: Objection, your Honor, as irrelevant.
THE COURT: Overruled.
DR. BADEN: That is my understanding, yes.
MR. KELBERG: I will move to strike as calling for speculation.
THE COURT: The answer is stricken. The jury is to disregard it.
MR. SHAPIRO: Your Honor, may I approach the witness, please? We have a copy of a letter that was sent to Detective Vannatter.
MR. KELBERG: Your Honor, I would ask to approach on this with the court reporter.
THE COURT: All right. With the reporter, please.
MR. KELBERG: I would ask for a copy of the document as well.
MR. SHAPIRO: We provided copies of this to the District Attorney in discovery early on.
(The following proceedings were held at the bench:)
THE COURT: Okay.
MR. KELBERG: I object on relevancy and 352. The letter is from Mr. Shapiro offering whatever services he may wish to offer. This does not go to either qualifications or lack of bias at all. It goes to merely a tactic by Mr. Shapiro on behalf of the Defendant and therefore its probative value is clearly outweighed by its potential prejudicial effect. We don't know what Mr. Shapiro's motives were. Mr. Shapiro may well have realized that they would never accept such an offer and in fact we then would have to put Mr. Shapiro on the stand for cross-examination. He may well have done this as a tactical matter to try and gain advantage in the event Mr. Simpson were charged and Dr. Baden were a witness and Dr. Baden can then be made to be the neutral objective individual, because after all, he offered his services in this case to the Prosecution to help solve this case. So this is not an offer from Dr. Baden. This is in fact a potential tactical decision by the lawyer for Mr. Simpson. So I urge the Court under 352 that its probative value is substantially outweighed by its prejudicial impact. It is clear that Dr. Baden has worked for the Prosecution in cases, including our office. He has worked for the Defense in cases. This does not add to his appearance and objectivity.
MR. SHAPIRO: Your Honor, I think everyone would agree that at the same time this letter was sent, another letter was sent as a result of the same meeting which would show our sincerity in this endeavor where we offered that O.J. Simpson take a lie detector test and that the results be admissible in the courtroom. That was also turned down and I think that is an absolute demonstration of our good faith in this regard. Also, but this goes--what this goes to demonstrate is not so much qualifications, but one of the issues I must, if your Honor rules in favor of Mr. Kelberg that we shouldn't go into this on bias--
THE COURT: Keep your voice down.
MR. SHAPIRO: --that we shouldn't go into this on bias, is that Dr. Baden has spent a tremendous amount of time out here on this case and part of it was at the insistence of Mr. Simpson, that he cooperate with the police so that they could in fact do everything that is humanly possible to find out who the real killers were in this case, and to aid them with the finest investigators in the country. And so a lot of the expense that may be used as impeachment went to this purpose and that is the reason for this line of inquiry.
THE COURT: All right. I'm going to sustain the objection to this letter because it includes references to polygraph.
MR. SHAPIRO: May we--we are aware of that. May we ask that the Court redact that portion?
THE COURT: What I'm going to suggest--my recollection, Mr. Shapiro, is that during the course of your cross-examination of Detective Lange that he was asked did the Defense offer to--
MR. COCHRAN: I had Lange.
MR. SHAPIRO: It was Vannatter.
MR. COCHRAN: Vannatter.
THE COURT: So this matter is already in the record, that the services of Dr. Baden were offered to the police department. That is already--and it is not disputed. My concern here is that Dr. Baden says my understanding is that his services were offered. He doesn't have personal knowledge.
MR. SHAPIRO: Oh, he does. He just misstated himself.
MR. COCHRAN: He does.
THE COURT: Well, all right.
MR. SHAPIRO: He is very well aware of it. We discussed this and I asked him specifically whether or not he would cooperate and he said Dr. Lakshmanan, he calls him Lucky, was a student of mine, I would be more than glad to come in and help them in any way. Dr. Lee said would he open his laboratory to the LAPD.
THE COURT: All right, all right. Hold on. So you can bring out the fact that he was willing to cooperate with Dr. Lakshmanan, he had no difficulty, but given his answer, I mean, you can go into that.
MR. KELBERG: May I point out, your Honor, that this is after the autopsies have been completed. I also understand from Miss Clark that Mr. Shapiro's reference with respect to the polygraph letter is not accurate. I know you have a one attorney one witness rule. I am not in a response to respond to that, but Miss Clark advises me--
THE COURT: I am indicating that this letter will not be used in front of the jury but you can ask questions around the area.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. We will go to 10:45.
MR. SHAPIRO: Thank you very much, your Honor.
MR. SHAPIRO: Dr. Baden, were you willing to continue with the Los Angeles County corner in their investigation?
DR. BADEN: Yes.
MR. SHAPIRO: And did you make a request to review the bodies of the decedents, Ronald Goldman and Nicole Simpson?
DR. BADEN: Yes.
MR. SHAPIRO: What happened as a result of that request? Were you allowed to do so?
DR. BADEN: No, because when I arrived on the 16th the bodies had been released to the families.
MR. SHAPIRO: Were there limitations placed on what you could and could not do in what you felt was necessary for a complete and thorough examination?
MR. KELBERG: Objection, your Honor, as vague.
THE COURT: Overruled.
DR. BADEN: Well, I was able to see photographs of the remains. I was not able to discuss the findings with the medical examiners involved in the autopsy. I was not able to see the remains.
MR. SHAPIRO: Was your request to see the remains done prior to the time that Nicole Simpson was buried and laid to rest?
DR. BADEN: Yes.
MR. SHAPIRO: Was that the same thing for Ronald Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: Now, regarding your participation as a consultant in this case, were you asked to do a complete and thorough comprehensive examination?
DR. BADEN: Yes.
MR. SHAPIRO: And have you done that?
DR. BADEN: I have done it to the best of my abilities and best of what was available to me to review.
MR. SHAPIRO: Have you spent a lot of time on this case?
DR. BADEN: Yes.
MR. SHAPIRO: Can you tell the ladies and gentlemen of the jury approximately how many days you have spent on this case in California alone?
DR. BADEN: I've been in California since June 14th, more than seventy days in California.
MR. SHAPIRO: How many trips have you made out here at our request?
DR. BADEN: About 18, 20 trips from New York City to Los Angeles in the course of that time.
MR. SHAPIRO: Were you present during the preliminary hearing in this case?
DR. BADEN: Yes. Yes, I did, and I worked with you at that time.
MR. SHAPIRO: And were you also present during the eight-day direct examination of Dr. Lakshmanan?
DR. BADEN: Yes, I was, in this courtroom.
MR. SHAPIRO: Were you able to--did you follow and listen to all of his testimony in this case?
DR. BADEN: Yes, I did.
MR. SHAPIRO: In addition to those times, what other times have you spent generally in preparing for your evaluation and opinions in this case?
DR. BADEN: Well, I spent time when--with Dr. Lee on arriving in Los Angeles immediately the--the next morning examined Mr. Simpson for any forensic evidence, any injuries, any medical or scientific findings that might aid in the evaluation of what happened and how it happened. I did spend time in the Coroner's office with Dr. Lakshmanan reviewing records and photographs. I did spend time in the Los Angeles Police Department laboratory with Dr. Kestler and others reviewing evidence. I did make a few trips and examinations of the crime scene at the Bundy location and at evaluation and examination at Mr. Simpson's home in Rockingham. I did review evidence that was sent to Albany Medical Center for review in February of this year. Much of the evidence was made available to the forensic scientists for the Defense for review. I did visit the crime laboratory in March of `95 in Los Angeles to review additional materials. And in addition to that, I participated in many, many conferences in Los Angeles with you and Mr. Cochran and associates in reviewing and going over and trying to interpret the medical and the scientific evidence that I would have knowledge of, and interpret it in the light of questions that lawyers have and other information that was being gathered and developed by Dr. Lee and others. And I spent hundreds of hours on the telephone with you from New York City over the time reviewing evidences and materials.
MR. SHAPIRO: Have we reviewed books together?
DR. BADEN: We have spent a lot of time reviewing books, authorities, reviewing the testimony of Dr. Lakshmanan and other testimonies that--that forensic pathologists would have input into or have some knowledge of.
MR. SHAPIRO: Have you reviewed every note, memorandum and report done by the L.A. County Coroner's office regarding the deaths of Ronald Goldman and Nicole Simpson?
DR. BADEN: Yes, yes.
MR. SHAPIRO: Have you reviewed every photograph taken by the Los Angeles County Coroner's office of Ronald Goldman and Nicole Simpson?
DR. BADEN: Yes.
MR. SHAPIRO: Have you reviewed every photograph taken by the Los Angeles Police Department of the crime scene at Bundy and of O.J. Simpson's residence?
DR. BADEN: Yes.
MR. SHAPIRO: Have you review police reports that have been filed?
DR. BADEN: Yes.
MR. SHAPIRO: Have you reviewed investigative reports from personnel of the Los Angeles County Coroner's office?
DR. BADEN: Yes.
MR. SHAPIRO: And do you feel that you are qualified to make an opinion as to the findings of the Los Angeles County Coroner's office as to whether or not you agree or disagree with those?
DR. BADEN: Yes, I feel that I have opinions and am sufficiently informed to be able to make opinions relative to findings of the Los Angeles Coroner's office.
MR. SHAPIRO: And do you feel that you have had enough information, enough time and enough data to make your opinion available to this jury regarding evidence that you have qualifications as a forensic pathologist to do?
DR. BADEN: Yes.
MR. SHAPIRO: Were you instructed--well, strike that. When you--did you, in your initial observations at the Coroner's office, find any errors or omissions that were significant and important regarding Nicole Simpson and any injuries she might have suffered that were not listed in the autopsy report.
THE COURT: How about a little foundation as to date and time and manner.
MR. SHAPIRO: Well, can he answer that yes or no and then we will take that?
THE COURT: Please.
DR. BADEN: Yes.
MR. SHAPIRO: When were you able to do this?
DR. BADEN: Umm--
MR. SHAPIRO: Where were you able to do this, what was the date, time and circumstances surrounding it?
DR. BADEN: On June 22nd, 1994, I was authorized to visit with Dr. Barbara Wolf, Dr. Lakshmanan in the Coroner's office, and he graciously made all of the information that he had available, available for us to review, which included not only the photographs, but also, umm, the tissue sample that had been retained from the autopsy, which is normally done in--when autopsy is done, some tissue is retained from the different organs for possible further study under the microscope and these are kept in formaldehyde type solution. We were able to review those tissues that were saved in formaldehyde and we were able to review all of the fluids and tissues that were saved for possible toxicological examination and for examination for drugs. Umm--
MR. SHAPIRO: Let me interrupt you for a second here and get right to the point. Did you find any evidence regarding any injury to the head area of Nicole Brown Simpson that was not previously recorded or found by the Los Angeles County Coroner's office?
DR. BADEN: Yes.
MR. KELBERG: Excuse me. I will move to strike, calling for speculation and compound as to the term "Found" versus "Recorded."
THE COURT: Sustained.
MR. SHAPIRO: Changing the word "Found" to "Recorded," were you able to discover any omissions that were not recorded by the Coroner's office regarding Nicole Brown Simpson?
DR. BADEN: Yes.
MR. SHAPIRO: What were you able to find?
DR. BADEN: Umm--
MR. SHAPIRO: What did you find?
DR. BADEN: In reviewing the tissues that had been saved, the small blocks of tissue, Dr. Wolf and I found a bruise to the brain, a--damage to the brain from some blunt force that had not been recorded.
MR. SHAPIRO: Was that an important and significant finding?
DR. BADEN: I think--
MR. SHAPIRO: In your opinion?
DR. BADEN: Yes, I think so.
MR. SHAPIRO: Why?
DR. BADEN: Because it indicated that Miss Simpson had suffered a blow to the head that caused brain damage and that is significant to a forensic pathologist.
MR. SHAPIRO: Did you find anything in the area of the neck area relating to the thyroid that had been overlooked?
DR. BADEN: Yes.
MR. SHAPIRO: What did you find?
MR. KELBERG: I'm sorry, your Honor. I'm going to move to strike "Overlooked" again calling for speculation. If the term is "Recorded" I have no objection.
THE COURT: Rephrase.
MR. SHAPIRO: Substitute the word "Overlooked" for "Recorded."
DR. BADEN: Yes, the--in the course of the autopsy Dr. Golden had preserved a portion of the Adam's apple and windpipe which is the area that is included with the Adam's apple, the Adam's apple area, and on examining that organ that was retained in the formaldehyde, we again found a cut through one of the horns, one of the areas of the Adam's apple that had not been recorded.
MR. SHAPIRO: Did you examine any clothing of the decedent?
DR. BADEN: Yes.
MR. SHAPIRO: What were your findings in that regard?
DR. BADEN: Dr. Lakshmanan also made available to us the clothing for examination of both Miss Simpson and Mr. Goldman that were still in the possession of the Coroner's office and we found that there were some mold on Mr. Goldman's shirt, which indicated a growth of mold during that ten-day period. Otherwise we found evidences of stab wounds and trace evidences of blood and material that was present on the clothing that we left for the criminalists to review further.
MR. SHAPIRO: Had the mold been recorded before?
DR. BADEN: No. The mold was not present at the time of the deaths on June 13th and had grown there during the ten-day period of time having to do with the conditions under which the shirts were stored. We try to--medical examiners try to preserve clothing so that mold does not grow, and if there is moisture and if the clothing isn't preserved properly, mold can grow and interfere with the proper evaluation of the clothing.
MR. SHAPIRO: You mentioned that in addition to visiting the Coroner's office in Los Angeles, you also visited the Los Angeles Police Department evidence collection room?
DR. BADEN: Yes.
MR. SHAPIRO: Did you visit that room on June the 24th of 1994?
DR. BADEN: Yes, we did.
MR. SHAPIRO: Would you explain to the ladies and gentlemen of the jury what you were allowed and not allowed to do during that examination.
DR. BADEN: Yes. We were authorized--you had obtained authorization for Dr. Wolf and I to review the evidence that had been collected up to that point by the Los Angeles Police Department and, umm, we were allowed to look at the evidence, but not to touch or photograph it, and in the presence of I think Miss Kestler, Detective Vannatter and others.
MR. SHAPIRO: Did Miss Kestler provide to you items of evidence for your examination and review that were a pair of dark-colored men's socks?
DR. BADEN: Included in the material was--were the--were socks, yes.
MR. SHAPIRO: Were you able to look at those socks?
DR. BADEN: We were able to look at the socks. We were not able to touch or move the socks.
MR. SHAPIRO: Were the socks put on some type of surface for your observation?
DR. BADEN: In my recollection it was put on some paper to keep it clean and all for examination, yes.
MR. SHAPIRO: A type of white butcher paper?
DR. BADEN: Something.
MR. SHAPIRO: Butcher type paper?
DR. BADEN: Butcher paper, yes.
MR. SHAPIRO: And did you observe the socks?
DR. BADEN: Yes.
MR. SHAPIRO: Did you observe any blood on the socks?
DR. BADEN: No.
MR. SHAPIRO: Did you see a frame of glasses?
DR. BADEN: Yes, I saw the eyeglasses that were in an envelope.
MR. SHAPIRO: Did you see any lenses that were associated with those eyeglasses?
DR. BADEN: Yes.
MR. SHAPIRO: How many lenses did you see?
DR. BADEN: Umm, the frames were intact, but the lenses were loose. They had come out of the--the frame, so I saw two intact lenses together with the intact frames, but they were--the lenses were separate in the same envelope.
MR. SHAPIRO: Did you examine and observe the frame of the glasses?
DR. BADEN: Yes.
MR. SHAPIRO: Did you see any blood on the frame?
DR. BADEN: There was what appeared--maroon material that suggested that there was blood that was on--dried on one of the frames.
MR. SHAPIRO: For the purposes of your testimony today, in reviewing the crime scene, in reviewing the findings of the medical examiner, and offering your opinions to the ladies and gentlemen of the jury, do you feel that you need to have the photographs of the autopsy to give your conclusions?
DR. BADEN: No, I can--
THE COURT: All right. Let's take our mid-morning recess at this time. Remember all my admonitions to you, ladies and gentlemen. We will be in recess for fifteen. Doctor, you can step down.
DR. BADEN: Thank you, your Honor.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Deputy Magnera, let's have the jury, 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. All right. Let the record reflect that we have now been rejoined by all the members of our jury panel. That Dr. Michael Baden is on the witness stand undergoing direct examination by Mr. Shapiro. And Mr. Shapiro, you may continue.
MR. SHAPIRO: Thank you very much. Good morning again, ladies and gentlemen.
MR. SHAPIRO: Dr. Baden, in your experience as a medical examiner in testimony before juries, what is the standard that a professional medical examiner should use in rendering scientific medical opinions?
DR. BADEN: The standard, in my opinion, should be and usually is to a reasonable degree--opinion held to a reasonable degree of medical or scientific certainty.
MR. SHAPIRO: Are possibilities the type of evidence and testimony a professional medical examiner should give in a homicide case?
DR. BADEN: Not in my opinion.
MR. SHAPIRO: You have seen eight days of direct examination which involved many, many hypothetical situations that are based on possibilities. In your opinion is this a correct way for a professional medical examiner to offer testimony?
MR. KELBERG: Objection, asked and answered and argumentative.
THE COURT: Sustained.
MR. SHAPIRO: You have seen lots of demonstrations that were done in this case between Mr. Kelberg and Dr. Lakshmanan?
DR. BADEN: Yes.
MR. SHAPIRO: And you heard questions answered--asked, "And in your opinion, doctor, is it possible," did you not?
DR. BADEN: Yes.
MR. KELBERG: Objection, your Honor. That misstates the way the questions were sustained.
THE COURT: Sustained.
MR. SHAPIRO: "Could it have happened this way," did you hear those questions?
MR. KELBERG: That is also a misstatement, your Honor.
THE COURT: Sustained.
MR. SHAPIRO: Did you understand that the testimony that was given by Dr. Lakshmanan was not testimony related to a reasonable degree of medical certainty?
MR. KELBERG: Objection, irrelevant, as to his understanding.
THE COURT: Sustained.
MR. SHAPIRO: What is your opinion of professionals who give medical opinions that are not to a reasonable degree of medical certainty?
MR. KELBERG: Objection, asked and answered.
THE COURT: Overruled.
DR. BADEN: Physicians learn in medical school early on that anything is possible in medicine, so any question that goes to a physician is it possible, that almost has to be answered yes and doesn't--and gives the cloak of expertise on a--an answer that may only list possibilities that are--that are remote. Unfortunately the expert, like Dr. Lakshmanan and like myself, usually are confined to answer the questions that lawyers give us, so Dr. Lakshmanan did answer questions that I felt were possibilities, but in my opinion it doesn't help the finders of fact because anything is possible.
MR. SHAPIRO: So would it be your opinion that possibilities have no significance when coming to medical conclusions regarding expert testimony?
DR. BADEN: In my opinion it would have very little significance. If an answer is only to a possibility. If our expertise permits us to give an answer to a reasonable degree of medical certainty, which is upwards of like 95 percent, I think that could be helpful to the persons who are trying the facts, but a possibility might be one percent possibility which I think can be misleading many times.
MR. SHAPIRO: And did you find that many of the hypotheticals that were done here were misleading from a scientific medical point of view?
MR. KELBERG: Objection, your Honor, it is irrelevant.
THE COURT: Sustained.
MR. KELBERG: Calling for speculation.
THE COURT: Sustained.
MR. SHAPIRO: I want to direct your attention toward the role of a medical examiner in crime scene investigation. Are you familiar with that aspect of medical examinations from a forensic point of view?
DR. BADEN: Yes.
MR. SHAPIRO: Would you say that a medical examiner or Coroner is merely a body removal service at the scene of a crime?
DR. BADEN: Often medical examiners are used in that fashion, but I think that a medical examiner is absolutely not a body removal service, but an expert who contributes a lot to the investigation at the crime scene.
MR. SHAPIRO: In your opinion then, the role of a medical examiner extends beyond the bounds of the autopsy room?
DR. BADEN: Absolutely.
MR. SHAPIRO: What, in your opinion, should a medical examiner do at a crime scene investigation such as the crime scene we have in this case involving the murders of Ronald Goldman and Nicole Brown Simpson?
DR. BADEN: (No audible response.)
MR. SHAPIRO: Should they go to the scene?
DR. BADEN: In my opinion, the best information and the greatest information can be obtained from going promptly to the scene of death, from examining the scene and the environment, not just the body. The last thing the medical examiner does is to examine the body, because the body can be reviewed under better light in the autopsy room, but the circumstances, the trace evidence, the building that the body is found in are all important parts of the scene.
MR. SHAPIRO: What should the medical examiner be looking for and why at the scene of the crime?
DR. BADEN: The medical examiner should be looking for anything that might be helpful in determining how to proceed with the case, what--what to do, whether an autopsy should be done, to collect any evidence that might be present, to learn anything about the decedent that might be helpful in helping perform an informed autopsy. Not all autopsies are the same. Some autopsies require different types of examination of the body than others to determine if there is any medications, any alcohol, any drugs at the scene, which can't be done once the body is removed to the autopsy room, which may help in determining again what should be looked for at the autopsy, what toxicology should be done. To look for things that are unexpected. We don't know when we go to a scene of death what we are looking at. As Watson asked Holmes, "What are you looking for?"
MR. KELBERG: Move to strike, nonresponsive.
THE COURT: Sustained.
MR. SHAPIRO: What did Watson ask Holmes?
THE COURT: Sustained.
MR. KELBERG: Your Honor, irrelevant.
THE COURT: Sustained.
MR. SHAPIRO: I was just interested.
MR. SHAPIRO: Doctor, would there be a reason at the residence of Nicole Brown Simpson for a medical examiner to go in the home where the bodies were found adjacent to?
DR. BADEN: Oh, absolutely. The scene of death is one area, but the home would be very important to see if there is any evidence of when the person was last in the residence, to see what the person last ate, to see what is in the garbage can, to see what is on the stove, to see what is in the refrigerator, that kind of material, to then correlate with autopsy findings, to see in this instance how long the candles had been burning, for example, which one of the important areas that a medical examiner can contribute to is not so much the cause of death, but is the time of death, which is one of the responsibilities the medical examiner has, to look for any evidence that will assist in further--in how the autopsy should be done and what drugs to look for, whether the person has been sick, if there are any notes around, anything that can help in determining how the person died and how the person may have left trace evidence behind, what the bed looked like, whether there is any spots or stains on the bed, whether there was a struggle inside the house, whether there were bloodstains around in the house or not. These are all part of what the medical examiner has to look for again to be able to do an intelligent autopsy.
MR. SHAPIRO: All right. In this particular case, what would be the importance, in your opinion, of going into the refrigerator of Nicole Brown Simpson?
DR. BADEN: Well, in the refrigerator in this particular case it would be important to know what food was in the refrigerator so that when the autopsy is done it can be correlated with whatever was present in the stomach, because we know out front, as a medical examiner, that the last meal had some significance. Was the last meal either at home, was it eaten elsewhere? And we can tell that by--by correlating what is present at autopsy in the stomach contents with whatever is purported to have been the last meal or whatever may be present in the refrigerator or in the garbage or in the sink in the kitchen.
MR. SHAPIRO: What about the clothing on the bodies of the victims at the scene? Is that something that comes in with--comes within the purview of a medical examination from a forensic standpoint?
DR. BADEN: Yes. Anything on the body is usually the province of the medical examiner as opposed to the criminalist who is gathering information away from the body, and the clothing on the body, whether there is any kind of foreign stains on the clothing, whether any foreign materials. We have to be able to identify, preserve, collect any evidences that might be present at the scene that might be lost in transport, because once that body is moved from the scene it has to go in some kind of body bag container where valuable evidences can be lost sometimes if not collected at the scene. And in this instance that was certainly--proved to be true.
MR. SHAPIRO: Can that be evidence that can point to someone's innocence as well as someone's guilt?
DR. BADEN: Yes.
MR. SHAPIRO: And what kind of evidence was lost in this case by the way the Coroner transported the body, in your opinion?
MR. KELBERG: Objection, calls for speculation.
THE COURT: Sustained.
MR. SHAPIRO: Was there any evidence that could have been preserved properly that was not at the crime scene?
DR. BADEN: Yes.
MR. SHAPIRO: What was that?
DR. BADEN: Well, there were blood drops on the back of Miss Simpson that should have been examined to determine who the blood came from. Maybe it came from the perpetrator. There was material on the hands. Often in struggle the victim has evidence, trace evidences of hairs and fibers and blood on the hands that becomes--that can be lost if the hands are not properly covered during transportation by rubbing against the rest of the body, and the hand may collect other kind of evidence by--by being left unprotected in the wrappings of the entire body. I think those two areas evidence could have been better protected and preserved and that would have helped resolve in the investigation.
MR. SHAPIRO: Is there a team approach to this effort? Since you have the police out there, you have detectives, investigators, possibly paramedics, the medical examiner, does this work as a team effort?
DR. BADEN: Yes.
MR. SHAPIRO: And how does that--how is that coordinated and what is the different responsibilities--what is the responsibility of the Coroner as part of this team?
MR. KELBERG: Your Honor, it is irrelevant.
THE COURT: Overruled.
DR. BADEN: Yes. The Coroner is there to examine the body, to protect the body, to protect any evidence on the body and to determine how the body should be moved. The pathologist--the medical examiner has to worked with the police officers who are present so as not to intrude on the police officer's investigation or the criminalist's investigation, and this is commonly done cooperatively between--among the medical examiner, among the criminalist.
The medical examiner has to be aware of any resuscitative attempts. Certainly if there is any thought that a person is alive the emergency medical services respond and the medical examiner has to be able to distinguish what was done by the first responders, whoever found the body, was present before the first responders, what the first responders might have contributed to the scene. There are many aspects of the scene investigation that a medical examiner can contribute to when working together with the--usually the criminalist in not distorting any evidence.
MR. SHAPIRO: Would you agree that then the medical examiner's job is at the scene to determine more what happened, rather than who did it?
DR. BADEN: Yes. The medical examiner's role in general is we are concerned with what happened and to document what happened, not who done it.
MR. SHAPIRO: And is the medical examiner's job to try to come to an immediate conclusion and then justify it, or just the opposite?
DR. BADEN: Oh, no, no, no. The medical examiner's job is to collect whatever information is there, to document whatever information is present, to protect whatever information is present, so that it can then be interpreted as the different tests are done and different results come through; not to jump to conclusions.
MR. SHAPIRO: So the medical examiner is not there as an arm of the police or an arm of the District Attorney, is he or she?
DR. BADEN: In my opinion the medical examiner should be independent of the District Attorney, independent of the Prosecutor, independently arrive at whatever findings he or she may have, but work cooperatively with the Prosecutor and the police. And there is--often it is difficult. It is often difficult to do that in a community, but the medical examiner should be independent of the other--the medical examiner is not an advocate.
MR. SHAPIRO: In a homicide investigation, such as the murder of Nicole Brown Simpson, in your opinion should the medical examiner perform an analysis for sexual activity of recent nature?
DR. BADEN: Yes, absolutely.
MR. SHAPIRO: Why?
DR. BADEN: I think any young woman who is murdered, and even older women, the sexual analysis, sexual evidence collection kit should be performed because there may be evidence present that can only be determined in the laboratory. We can't look at a--at an adult--a child--we can look at a child and tell if there is sexual assault or not, but not in an adult woman, especially a woman who has had children, and this depends on the results of--the so-called rape kit isn't just semen analysis, it is hairs and fibers and blood and saliva, a lot of evidence collection that can be useful in documenting findings and in contributing to trace evidence and that just--and we can't tell as medical examiners whether there has been forced sexual contact, whether there has been consensual sexual contact. Even that is important to the medical examiner to--to determine who might last have had contact with the woman in a murder investigation. That individual may be important.
MR. SHAPIRO: And in your experience has in fact these things that you have just told the jury been important in cases that you have been involved in?
DR. BADEN: Yes. We've done rape kits on even eighty-year old women who have been murdered who surprisingly had semen in the vagina that was not recognized at the scene that led to identifying who murderers were, so I think that it is an important tool of the medical examiner to do a rape kit analysis, especially in young women.
MR. SHAPIRO: You've told the ladies and gentlemen of the jury that it is important, in your opinion, for a medical examiner to make a determination of when and how much the victims in this case last ate; is that correct?
DR. BADEN: Yes, yes.
MR. SHAPIRO: And that was one of the reasons to look in the refrigerator?
DR. BADEN: Yes.
MR. SHAPIRO: Now, in this case the testimony has been that Ronald Goldman's stomach contents were saved and Nicole Brown Simpson's stomach contents were discarded. Is that your understanding?
DR. BADEN: Yes.
MR. SHAPIRO: Now, with the stomach contents that were saved of Ronald Goldman, what can somebody who has your qualifications determine from examining stomach contents?
DR. BADEN: My qualification? Any forensic pathologist can examine the stomach contents carefully under magnification and find what was eaten at the last meal, and that can be important sometimes. We don't know when we do the examination what is going to be important and what isn't going to be important later on. That is why we have to collect everything. And we can determine what was eaten at the last meal and we can get a good idea of when it was eaten, so the--the part of the investigation into time of death goes not only by how the body changes after death, rigor mortis, lividity, temperature that has been raised here, but to correlate it with the last meal. If we know what the last meal was and when it was--what the last meal was, we can then get an idea of how long after the meal the person died.
MR. SHAPIRO: How do you determine what somebody ate after it is in their system?
DR. BADEN: I'm sorry?
MR. SHAPIRO: After it is in their stomach how can you tell what they ate?
DR. BADEN: The food digests in a certain pattern and we eat food and we digest food in a certain way and we can identify starches and meats, but most particularly vegetables. Vegetables keep their integrity because of the chelose constants and lettuce and tomatoes are easily identified during digestion. Mummies 2000 years old have been identified with tomato seeds in the stomach and seeds and other vegetables stay intact once the person dies, so we have a good time clock as to what is in the stomach, how long it takes to get that way, what the last meal was, sometimes how long after the last meal the person died.
MR. SHAPIRO: So you are saying that you can actually separate and segregate different items of food in a stomach and look at them and see that they would be lettuce or tomato or celery, things like that? Can do you that?
DR. BADEN: Yes, absolutely.
MR. SHAPIRO: Can all pathologist do that? Is that part of your training?
DR. BADEN: Not all pathologists. You see, 99 percent of the pathologists are hospital-based pathologists who specialize in natural diseases, like heart disease and cancer, but the less than one percent who are forensic pathologists who go on to study unnatural death more are trained to do that, yes.
MR. SHAPIRO: In this case, were you afforded an opportunity to examine the stomach contents of Ronald Goldman?
DR. BADEN: Yes, yes.
MR. SHAPIRO: And where did you do this examination?
DR. BADEN: In Albany Medical Center in March of--in February of this year when the evidence was sent up from the Los Angeles crime lab. Dr. Lakshmanan at our request was kind enough to include the stomach contents and Dr. Wolf and I were able to--and Dr. Lee were able to examine the stomach contents at Albany Medical Center.
MR. SHAPIRO: That is in New York?
DR. BADEN: That is in, yeah. In upstate New York, Albany.
MR. SHAPIRO: And what were you able to determine Mr. Goldman had in his stomach?
DR. BADEN: Mr. Goldman had a lot of digested food in his stomach, had about 200 cc, which is about six, seven ounces of food that was being digested in the stomach. And within that there were identifiable fragments of a kale, k-a-l-e, kale-like compound, thick lettuce type vegetable. There was tomato, there was celery, there were raisins that were clearly identifiable.
MR. SHAPIRO: So if you knew from eyewitnesses what Mr. Goldman had as his last meal, and you found, for example, he had a salad but there was no raisins in it, what would that tell you as a forensic medical examiner?
DR. BADEN: That would indicate that after he had eaten that meal and after he went home, he ate or at some other place he ate something that had raisins in it and so he must have eaten something containing raisins after he had that meal you refer to.
MR. SHAPIRO: So if there was a proper and thorough investigation, it is your expert opinion that someone could determine with a reasonable degree of medical certainty whether or not Mr. Goldman ate something after Mezzaluna?
MR. KELBERG: Objection, your Honor, as leading.
DR. BADEN: Yes, sorry.
THE COURT: Overruled.
DR. BADEN: Yes. If one had the proper reliable information.
MR. SHAPIRO: And what information would that be?
DR. BADEN: As to when he ate and what he ate at Mezzaluna and it would be helpful to know about the time he ate also.
MR. SHAPIRO: Though I take it now obviously since you could not do any examination of Nicole Simpson's stomach contents, since they were thrown away, we are forever deprived of that evidence?
MR. KELBERG: Objection, your Honor, that is argumentative.
THE COURT: Sustained. Sustained.
MR. SHAPIRO: What is the effect of the stomach contents of Nicole Simpson being discarded?
DR. BADEN: Well, Dr. Golden did describe stomach contents in the autopsy report and he does include mention of some food stuffs, including rigatoni that he saw.
MR. SHAPIRO: It is--
DR. BADEN: But I didn't permit another independent examination.
MR. SHAPIRO: In that regard did you find things, in examining the stomach contents of Ronald Goldman, that were not included in the autopsy findings?
DR. BADEN: Yes.
MR. SHAPIRO: What did you find that were not included?
DR. BADEN: Much of--I think that, as I recall, without going into the autopsy report, the lettuce-like material was described in Ron Goldman's stomach contents but not the tomato and raisin and celery, and green pepper I think also present that we found and documented.
MR. SHAPIRO: Now, in the findings of Dr. Golden in the autopsy protocol regarding Nicole Brown Simpson there was an indication that her stomach had recognizable rigatoni?
DR. BADEN: Yes.
MR. SHAPIRO: Rigatoni is a type of pasta?
DR. BADEN: Yes.
MR. SHAPIRO: How quickly does pasta get digested in the stomach to a point where it could not be recognizable as rigatoni?
MR. KELBERG: Objection, your Honor, lack of foundation.
THE COURT: Overruled.
DR. BADEN: Rigatoni and pastas and starches lose their integrity very quickly in the stomach, in the stomach acids. They don't maintain their identifiable characteristics as vegetables do, so that rigatoni and that type of pasta would lose its distinct shape very quickly, half hour, depending on--on what else is in the stomach.
MR. SHAPIRO: If there was testimony that Nicole Brown Simpson had rigatoni at Mezzaluna restaurant between eight o'clock and 8:30 P.M. on the night of her death and talked to her mother at about 9:45, 9:47 that night, and it was discovered that there was rigatoni that was recognizable in her system, after her death, would that have any significance to you?
DR. BADEN: Yes.
MR. SHAPIRO: What significance would it have?
DR. BADEN: That would suggest that she ate something containing rigatoni after she--after the meal at Mezzaluna and perhaps after she got home.
MR. SHAPIRO: So that would be one reason why you would want to check the refrigerator, the garbage disposal and the waste basket?
DR. BADEN: Yes, yes.
MR. SHAPIRO: I want to direct your attention now to the areas that a medical examiner focuses on in a homicide investigation. Would you agree that one of the things that the medical examiner must determine is the cause of death?
DR. BADEN: Yes.
MR. SHAPIRO: And in this case were you able to determine the cause of death?
DR. BADEN: Yes.
MR. SHAPIRO: In your opinion would any competent medical examiner be able to determine the cause of death?
DR. BADEN: Any competent medical examiner? Any competent police officer could rapidly determine the cause of death, as was done here.
MR. SHAPIRO: How long would that take?
DR. BADEN: Ten seconds.
MR. SHAPIRO: And what was the cause of death?
DR. BADEN: Cause of death was hemorrhage from cut wounds and stab wounds in both individuals, actually in both, from cuts to the neck area.
MR. SHAPIRO: And is part of the job of a medical examiner to determine the manner of death?
DR. BADEN: Yes.
MR. SHAPIRO: And is that something you were able to determine?
DR. BADEN: Yes.
MR. SHAPIRO: And is that something every competent medical examiner should be able to do?
DR. BADEN: Yeah. By manner of death we mean natural, accident, suicide, homicide, and a come medical examiner, competent police officer as here, immediately determined that this was a homicide. That was the manner of death and they were correct.
MR. SHAPIRO: And that was something that could be done very, very quickly?
DR. BADEN: Yes.
MR. SHAPIRO: So now we have spent eight days on direct examination in this courtroom--
MR. KELBERG: Your Honor--
THE COURT: Sustained, sustained.
MR. SHAPIRO: In this case a lot of effort has gone in--
MR. KELBERG: Same objection, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SHAPIRO: What is--what remains for the medical examiner to opine?
DR. BADEN: Well, the--in this instance the cause of death, the manner of death were very apparent right at the crime scene, and when the police called the case in, the deaths in, they said homicides by stabbings and cuttings. The medical examiner has more of a role in determining how the injuries occurred, the nature of the injuries, what kind of weapons were--weapon or weapons were involved, how long the person may have lived after the injuries were inflicted. Those are all things that a medical examiner can determine. The medical examiner also at the scene can help in determining how long the person has been dead, which is the most common question that is asked of a medical examiner at a scene by the police. "Doc, how long has the person been dead?" Because that is going to be helpful in the investigation as to who should be questioned by the police. And the medical examiner has a great and increasing responsibility, all this DNA technology--and that didn't exist ten years ago--the medical examiner has a responsibility to protect the evidence so that other scientists can look at it to make sure that the blood and the semen present or hairs and fibers don't get lost or, umm, distorted in the removal of the body, which is a delicate process, from the crime scene to the medical examiner's office, the Coroner's office, and that everything is identified, all trace evidence is identified, protected, collected, so that others can, you know, DNA people, criminalists, toxicologists, lab directors, can do their work properly.
MR. SHAPIRO: In your personal experience of coming to conclusions in other high-profile murder cases as to the number of killers involved, you have been called upon to reach conclusions; is that correct?
DR. BADEN: Yes.
MR. SHAPIRO: And in this case can you tell, within a reasonable degree of medical certainty how many killers were involved in this case?
DR. BADEN: No.
MR. SHAPIRO: In your opinion can anybody tell how many killers were involved in this case?
DR. BADEN: The medical examiner can't. The medical examiner from the nature of the injuries, the wounds and the crime scene, is not--cannot tell how many assailants there were.
MR. SHAPIRO: In your opinion can the medical examiner in this case tell whether or not the killings resulted from a single or double-edged knife?
DR. BADEN: The medical examiner can say that a single-edged knife was involved, but the medical examiner cannot say how many knives were involved and whether or not a number of the wounds were caused by double-edged blades, too. So the medical examiner cannot tell how many weapons and whether they were single and double-edged.
MR. SHAPIRO: Is there a proper procedure that is acceptable throughout the United States to make a determination regarding whether a single or double-edged weapon was used in a stabbing case, based on photographs?
DR. BADEN: Photographs can be helpful, but the--it is the responsibility of the person doing the autopsy--
MR. KELBERG: Objection, your Honor, move to strike as nonresponsive.
THE COURT: Overruled.
DR. BADEN: The best evaluation is by--at the time of the autopsy by looking at the wounds, by approximating the wounds and by documenting that so that can then be photographed so others can see it and that can help very much in determining whether the wound is single-edged or double-edged.
MR. SHAPIRO: How does a medical examiner, under the standard practice in the United States, approximate a wound?
DR. BADEN: Umm, by--by initially taking the fingers and reapproximating the skin surfaces, because after a stabbing, depending on how the body tissues and elastic tissues and the skin is situated at that point, the--the stab wound will--may expand and widen or stay just the way it is, depending on unpredictable things under the skin. And the medical examiner can get a good shape of what the weapon was by taking the skin edges and putting them together as they were before the--the wound stretched out, making those observations and then taking a piece of scotch tape and putting it over the transparent scotch tape over the wound, holding the edges together, photographing it so that--with a ruler, so that this becomes a documentation of the shape of the weapon at that point in the skin. And this correlated with how deep the stab wound is can lead to the medical examiner providing the investigators with information as to what kind of weapon they should be looking for.
MR. SHAPIRO: So the standard practice would be to take some scotch tape and just put it over the wound?
DR. BADEN: Yes.
MR. KELBERG: Objection, asked and answered and leading.
THE COURT: Overruled.
DR. BADEN: Yeah, scotch tape is very handy because--especially the non-reflective scotch tape, because it provides a hold on the skin so that the edges are reproximated. One can see if the edge is sharp or blunt. One gets a sense of the size of the wound. Sometimes one can even see serrations in a serrated knife, and then with proper photography, with a photograph, document that shape. And this can then be matched later on with weapons that are obtained and the medical examiner can identify whether this is consistent or inconsistent with the wound on the body.
MR. SHAPIRO: Is this procedure described and photographed in medical texts?
DR. BADEN: Yes.
MR. SHAPIRO: And forensic texts?
DR. BADEN: Yes.
MR. SHAPIRO: Now, a picture was shown from a medical text, while you were here, to Dr. Lakshmanan. Do you recall that?
DR. BADEN: Yes.
MR. SHAPIRO: And do you recall his opinion was that was taken only for the purpose of taking a picture to show in the book?
DR. BADEN: Yes.
MR. SHAPIRO: Do you agree with that or is that the standard procedure?
DR. BADEN: No, that should be standard procedure. That is what Dr. Spitz in that book was trying to show is how it should be done.
MR. SHAPIRO: Can you, as an expert medical examiner to a reasonable degree of medical certainty, tell the height of the assailant or assailants in this case?
DR. BADEN: No.
MR. SHAPIRO: Can you, as an expert medical examiner within a reasonable degree of medical certainty, tell the weight of the perpetrator or perpetrators?
DR. BADEN: No.
MR. SHAPIRO: Can you, as an expert medical examiner, within a reasonable degree of medical certainty, tell the physique of the perpetrator or perpetrators?
DR. BADEN: No.
MR. SHAPIRO: Would you say you would have as much chance as determining whether or not somebody had a mustache from observing ashes in a cremation as you could of coming up with whether--what the size, weight and height was of the perpetrators in this case?
MR. KELBERG: Objection, your Honor, argumentative.
THE COURT: Overruled. I would like to hear the answer to this one.
DR. BADEN: Yes.
MR. SHAPIRO: Regarding the timing of injuries, can this be based on the appearance of injuries in a photograph?
DR. BADEN: Very dangerous to do it that way.
MR. SHAPIRO: Why?
DR. BADEN: Because part of the--of the timing of injuries, how long an injury has been present, is based on color changes, and that is very dependent on the color film, the speed, the flash and how it is developed. The naked eye direct visualization is very helpful and looking at the tissue under the microscope is the best means of determining how long an injury has been present in general.
MR. SHAPIRO: And so that I understand you correctly, and the jury does, that when we are talking about timing of injuries, we are talking about whether it occurred before death, at the time of death or after death?
DR. BADEN: Okay. That--I was going--how long before death an injury occurs and also the same applies for distinguishing whether--or trying to distinguish whether an injury occurred after death or before death, but that also is very difficult and often impossible.
MR. SHAPIRO: And why is that, from photographs?
DR. BADEN: Umm--
MR. SHAPIRO: Why is that difficult to tell from photographs?
DR. BADEN: It is difficult to tell in general; not only from photographs, because we can look at a--when we look at a black eye changing or when we look at something under the microscope, it is because the body starts breaking down the red blood cells. If I bruise myself, I get a hemorrhage, I break little blood vessels, I get a hemorrhage under the skin, that is a black and blue mark. The body then does all kind of things to get rid of the blood that doesn't belong there and white blood sells come in within an hour or two, that we look at a reaction of the body to get rid of the blood. And the red cells break apart. They start breaking down and that is why the black and blue mark might turn green and yellow and brown as the red cells break down and then eventually they are removed. If a person dies within half an hour of receiving an injury, there isn't time for the body's reaction to be visible under the microscope or the changes to be present, and those injuries look very much like an injury that occurs a half hour after death. And bleeding alone is not sufficient to distinguish an injury before death or after, say, from a cut wound, because even when we die, when we die the blood vessels are chalked full of blood, the blood stays normally right in the blood vessels, vacuums don't occur. And the next day when we do an autopsy bleeding occurs, it is passive bleeding from the blood that is already in the blood vessels. And if somebody is cut after death, one can have a little bit of bleeding that looks like it was before death and people can become cut before death without much bleeding, depending on how the skin capillaries shut down, how the blood vessels shut down. So any injury that occurs around the time of death may be very difficult to interpret when doing the autopsy and become even more impossible if one is just relying on photographs.
MR. SHAPIRO: Now, would relying on photographs, would you say, as an expert medical examiner, that you could not conclude with a reasonable degree of medical certainty the timing of injuries, based on photographs alone?
DR. BADEN: Depending on the timing. That is if I'm asked could this injury have occurred two days ago and it is beginning to change colors, I might be able to do something like that, but it is not possible, in my opinion, to tell the difference between an injury that occurs five minutes before death, cutting injury, as in these instances, with one that occurs five minutes after death, unless there is a great deal of evidence of the body pumping out blood. You see, the--the pumping action of the heart indicates the person was alive, but passive flow of blood doesn't help.
MR. SHAPIRO: Now, so if opinions are given, and I think terms are used like perimortem and postmortem--those are the medical terms?
DR. BADEN: That's right.
MR. SHAPIRO: Those are things that you cannot rely on from photographs shortly before, at the time of or shortly after?
DR. BADEN: Yes, that's correct, I agree with what you said.
MR. SHAPIRO: That you cannot reasonably rely on those just based on photographs or colors and photographs?
DR. BADEN: That's correct.
MR. SHAPIRO: What about this idea of somebody being--well, Mr. Goldman being stabbed in this manner and being on the ground and somebody coming up with a knife and kind of poking at his cheek like you would like--well, I don't want to use the analogy from somebody else--a poking on the cheek to see whether he were alive or not? Do you have any experience about that? Do you have any opinion about that?
DR. BADEN: I have never heard of it being done for purpose of seeing if a person is alive.
MR. SHAPIRO: You also heard this testimony about these kind of superficial taunting wounds or control wounds to Mr. Goldman. Did you hear that testimony that was offered?
DR. BADEN: Yes.
MR. SHAPIRO: In the medical--are you familiar, in the common practice of forensic pathology, with a term "Control wound"?
DR. BADEN: It is not part of forensic pathologic diagnosis. There are control marks on a body from--from having the wrists tied together. You can see marks, you can see handcuff marks on the wrists sometimes, but not in the nature they were--that the testimony was with Mr. Goldman, in my opinion.
MR. SHAPIRO: And you heard the testimony of Dr. Lakshmanan that in his opinion these wounds that he described as control wounds or taunting wounds occurred before the cutting of the jugular vein of Mr. Goldman. Did you hear that testimony?
DR. BADEN: That is my recollection.
MR. SHAPIRO: Do you agree with that assessment?
DR. BADEN: No.
MR. SHAPIRO: Why not?
DR. BADEN: I think the cutting of the jugular vein occurred early on in the--in the struggle that he had and led to his death by hemorrhage over a period of many minutes of hemorrhage from the jugular vein. The cuts on the--the other cuts on the neck could have happened after that and near the time of death, because there is very little bleeding in those, but I--that could have happened after the cut wound in the neck.
MR. SHAPIRO: On June the 17th of 1994, you examined Mr. Simpson, did you not?
DR. BADEN: Yes.
MR. SHAPIRO: And you examined his hands?
DR. BADEN: Yes.
MR. SHAPIRO: And did you notice any cuts on his hands?
DR. BADEN: Yes. He had a healing cut on the middle finger of the left hand and healing cuts--smaller cuts on the inside of the left middle finger and on the outside--what I'm saying--there were cuts on the fourth and fifth fingers, in the skin between the fourth and fifth fingers.
MR. SHAPIRO: All right. Let's first focus--
DR. BADEN: So three different cuts I think as I recall.
MR. SHAPIRO: And some might have been in separate parts?
DR. BADEN: One can count them in different ways.
MR. SHAPIRO: All right. Let's focus in particular on the middle finger of the left hand above the knuckle.
DR. BADEN: Yes.
MR. SHAPIRO: That has in previous testimony been referred to as a fishhook injury or cut. Do you have any opinion as to what type of material caused that cut?
DR. BADEN: Yes. My opinion, when I examined the skin, the healing on Friday, that is about four or five days after it occurred, after the injury occurred, was that it was irregular and more likely due to a broken piece of glass than to a sharp knife.
MR. SHAPIRO: Now, I want you to assume hypothetically that that injury happened in Los Angeles and that Mr. Simpson, with that injury, got on a plane in Los Angeles to Chicago and that injury was not observed by anyone and no one observed any bandages, Band-Aids or any type of splint on that finger. In your opinion, if that would had healed before the person--had stopped bleeding before Mr. Simpson had got on the plane, if he was on that plane for an entire trip from Los Angeles to Chicago, what is the likelihood of that unbandaged finger reopening and bleeding?
MR. KELBERG: Objection, calls for speculation.
THE COURT: Overruled.
DR. BADEN: I think there is a--it was likely to bleed further in the course of that--an unprotected trip like that.
MR. SHAPIRO: Now--
DR. BADEN: When I say "Unprotected," with the finger not being protected.
MR. SHAPIRO: Regarding--is there anything significant about the place of the injury on the knuckle and the closing of a hand?
DR. BADEN: Yes. It overlaid the knuckles so that when the fingers would be opened and closed it would tend to disturb the clot that was developing and could easily open up for some bleeding to occur. And if it were unprotected by a Band-Aid or bandage, it would be easy--any contact with a chair, with luggage, with movement, would--could cause it to open even, so I think that it would be very likely to bleed further or to be obvious, it would be an obvious wound on the knuckle under those circumstances.
MR. SHAPIRO: Now, regarding the superficial cuts that you've observed on the sides of the fingers, do you have any opinion as to how long those would bleed before clotting?
DR. BADEN: They would bleed less profusely, they were less deep, they were smaller and they weren't over the knuckle area. They were in a protected place so that they could clot and stop bleeding more easily than a cut that was present over the knuckle.
MR. SHAPIRO: Are these as likely as the knuckle to reopen and bleed, if unprotected or unbandaged?
DR. BADEN: Less likely, less exposed to the environment.
MR. SHAPIRO: Now, assume Mr. Simpson cut his hand at his residence that resulted in these smaller types of cuts on his finger and he got these injuries at about ten o'clock. How long would you anticipate he would bleed.
MR. KELBERG: Objection, your Honor, assuming facts not in evidence.
THE COURT: One moment. Mrs. Robertson.
(Discussion held off the record between Defense counsel and the Defendant.)
(Discussion held off the record between the Court and the clerk.)
THE COURT: Counsel I need to take a recess at this time. All right. Ladies and gentlemen, I need to take our noon recess as far as the jury is concerned at this time. Please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you or allow anybody to communicate with you with regard to the case. Counsel, we will stand in recess until 1:30. Dr. Baden, you can step down, sir.
DR. BADEN: Thank you, your Honor.
(At 11:58 A.M. the jury was excused and the following proceedings were held in open court:)
THE COURT: All right. Let me see Miss Clark and where is Mr. Cochran?
DEPUTY MAGNERA: He is outside, your Honor.
(Brief pause.)
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Mrs. Robertson, would you invite Mr. Schwartz, et al, to join us, please.
(Brief pause.)
THE COURT: All right. Back on the record in the Simpson matter. The record should reflect that the jury has withdrawn from the courtroom. We now have present counsel who represent the interests of Miss McKinny. Counsel, do you want to state your appearances for the record and spell your names for the court reporter, please.
MR. SCHWARTZ: Matthew Schwartz, M-A-T-T-H-E-W S-C-H-W-A-R-T-Z. Ron Regwan, R-E-G-W-A-N, for Laura Hart McKinny.
THE COURT: All right. Gentlemen, you are here in response to a court order?
MR. SCHWARTZ: Yes, your Honor.
THE COURT: What have you produced for the court?
MR. SCHWARTZ: We have brought with us twelve audio cassettes and a couple of transcripts that are responsive to the subpoena duces tecum that was served by the Prosecution last night.
THE COURT: All right. And they are in the box that is presently on counsel table?
MR. SCHWARTZ: No. Actually they are in the suitcase of my attorney.
THE COURT: All right. And you are prepared to turn those materials over to the Court at this time in response to the subpoena duces tecum?
MR. SCHWARTZ: Yes, I am, your Honor, but I would like to request a brief meeting in chambers for a brief discussion, if possible.
THE COURT: All right. Is there a request for protective orders regarding the contents?
MR. SCHWARTZ: Yes, your Honor.
THE COURT: All right. It is my inclination at this point to--what is your request likely to be, that no copies be made?
MR. SCHWARTZ: No copies be made and at this point that anything that is not to be used by the Defense or by the Prosecution be placed under seal because it would not be necessary to be disclosed for the purposes of this trial. I would like to try to protect the proprietary interests of my client.
THE COURT: All right. Will you fax to the Court then at your earliest convenience a proposed protective order. My inclination is to grant that order.
MR. SCHWARTZ: Thank you, your Honor.
MR. COCHRAN: May I be heard, your Honor?
THE COURT: So ordered.
MR. COCHRAN: The Court indicated we are here pursuant to the Court's order. That is not exactly correct. May I just state while we are here, basically the Court is aware that we asked this Court, I guess maybe some ten days ago, to issue a subpoena for Miss Laura Hart McKinny, a subpoena duces tecum. I then went to North Carolina, and I don't have to go through the steps we went through last month. The North Carolina Court issued an order which I gave the Court indicating the tapes, a copy of the tapes at least were to come to the petitioner's counsel. These gentleman are here today primarily because I have made the arrangements to have these copies of these tapes made. These are not the original tapes as I understand it. These are copies for--
THE COURT: Excuse me just a minute. Mr. Schwartz, these are copies, correct?
MR. SCHWARTZ: I believe these are copies.
MR. COCHRAN: These are copies and in conversation--and these gentleman have fought vigorously for their client, but at the same time they have been very professional. And so in talking with them as early as Monday evening I made arrangements to have a copy which the Defense, the petitioners, will pay for pursuant to the order of the North Carolina court, to have it delivered out here today. And so I have previously asked for a 1054.07 meeting with your Honor regarding this, so these are here--they were due to present these to my office this morning. I spoke to them after our meeting this morning and found out the People have tried now to subpoena after we have done all this work and that is improper. These are impeachment documents. And so before the Court rules--by the way, we have previously stipulated, as Mr. Regwan and Mr. Schwartz will indicate, I have absolutely no problem with a protective order vis-à-vis anything not used or whatever, but these were subpoenaed by Mr. Simpson and his counsel from the North Carolina court and are here. And these are copies of tapes which I have been willing to pay for and through counsel have made arrangements for ms. McKinny to come to California. Mr. Simpson will be paying for that, not the Prosecution. And further, I said that pursuant to the subpoena she should keep the originals with her and bring them when she comes. These are copies for Mr. Simpson.
And the petitioners will be putting on this evidence so I think it is imperative--I understand you have a meeting, so it is imperative that before we go any further, we have no problem about the protective order or whatever, no problem about you placing them with the Court, but these are things we are paying for and this is what I went through you; not the Prosecution.
THE COURT: Let me tell you, Mr. Cochran, what I am inclined to do. The operative document here, the legal process, is the subpoena duces tecum, so when it comes to the Court--
MR. COCHRAN: Yes.
THE COURT: --well, Mrs. Robertson is obligated to log in, catalogue what is there, and then you can request that these items be released to your custody and with a standard removal order, which I am inclined to do as soon as I receive the protective order and--
MR. COCHRAN: We will stipulate.
MR. DARDEN: What about the Prosecution, your Honor? We would also like copies of these documents and tapes.
THE COURT: Well, it is something you will have to take up with counsel for Miss McKinny. This is an arrangement that--what counsel has gotten from North Carolina is an enforcement of the order that Miss McKinny appear in this jurisdiction in person and with the original tapes. That is the order that has been secured. Counsel have also agreed, apparently between themselves--
MR. COCHRAN: Yes.
THE COURT: --to provide a copy to the Defense; however, this is still under the authority of the subpoena duces tecum which is why I'm going to have Mrs. Robertson log it and then turn it over once I get a protective order signed and issued.
MR. COCHRAN: Then I would like to address the Court as I indicated earlier.
MR. DARDEN: Your Honor, this is in response to the Prosecution's subpoena.
MR. COCHRAN: No.
MR. DARDEN: And the court in North Carolina directs Miss McKinny to turn it over to the Defense. It doesn't direct counsel here in California to turn it over today. We served an SDT on Mr. Schwartz and his colleagues insisting that they bring these documents here before the Court. And as the Court is well aware, we appeared in chambers before the Court on July 14th, minutes after we heard about the existence of these tapes. We asked the Court for guidance. We issued an SDT back on July 14th. To give these tapes to the Defense only under these circumstances is inherently unfair. This is our SDT. These tapes are here because of our SDT. Those are our tapes, your Honor.
THE COURT: Doesn't appear to be the fact.
MR. COCHRAN: Those are not the facts. These are--
THE COURT: Hold on, Mr. Cochran. Mr. Schwartz, whose SDT are you here responding to?
MR. SCHWARTZ: Today?
THE COURT: Today.
MR. SCHWARTZ: That would be one served by the Prosecution last night.
THE COURT: All right.
MR. COCHRAN: One further question. Mr. Schwartz, why are the tapes--why are the copies of these tapes--
THE COURT: Wait, Mr. Cochran. I'm sorry, I get to ask questions.
MR. COCHRAN: I'm sorry. May I ask the Court to ask that question, why these tapes are here in California.
THE COURT: I understand--we understand all of that counsel. Let's do this: Mr. Schwartz, I will direct you to deliver to Mrs. Robertson, the clerk of the Court, the items that you've brought to Court and if you will provide the Court and give the Court a protective order sometime this afternoon, I would appreciate that. The clerk will maintain custody until I've had a chance to determine this dispute. And I've got to go to a meeting.
MR. COCHRAN: Thank you, your Honor. They will be safe with Mrs. Robertson.
THE COURT: All right. Thank you, counsel.
(At 12:09 P.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; THURSDAY, AUGUST 10, 1995 1:55 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also appearing, Kelli Sager, Esquire and Michael Sullivan, Esquire.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, People are represented. The jury is not present. The record should reflect that the Court, starting at 1:30, conducted a 1054.7 hearing with counsel for the pros--excuse me--counsel for the Defense. And, counsel, the issues regarding discovery of the SDT materials we'll take up at 5 o'clock today. I would like to finish as much of Dr. Baden as we can. I understand Miss Sager wants to come in on behalf of some of the news media people who are subpoenaed for next week to make some arguments. So we'll take that up at 5:30. So we'll take up the discovery issue at 5:00 and hopefully have enough time to get into the news media issues. But I would like to at least finish the direct examination of Dr. Baden this afternoon.
MR. SHAPIRO: Yes, we will do that. We'll have enough time to start the cross-examination, your Honor.
THE COURT: Okay.
MS. CLARK: And I assume that the presence of the media people will be for the purposes of the 402?
THE COURT: Yes. That's one of the issues. And apparently, there's some problem regarding availability of witnesses and counsel for the witnesses is one of the issues. Okay. Let's have the jurors, Deputy Magnera.
(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. Dr. Baden, would you resume the witness stand, please.
Michael Baden, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: All right. Let the record reflect we've been rejoined by all the members of the jury panel. Dr. Michael Baden is again on the witness stand undergoing direct examination by Mr. Shapiro. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: And, Mr. Shapiro, you may continue with your direct examination.
MR. SHAPIRO: Good afternoon. Thank you very much, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION BY MR. SHAPIRO
MR. SHAPIRO: Good afternoon, Dr. Baden.
DR. BADEN: Good afternoon, Mr. Shapiro.
MR. SHAPIRO: Dr. Baden, when we broke for our lunch recess, I was asking you to consider the superficial cuts on Mr. Simpson's hand. My question in that regard is, do you have any opinion as to how long it would take for those superficial cuts to stop bleeding?
DR. BADEN: Yes.
MR. SHAPIRO: And what is that opinion?
DR. BADEN: Six to eight minutes.
MR. SHAPIRO: I want to now direct your attention to your observations and conclusions of Nicole Brown Simpson on the night she was murdered. I want to first ask you, did you examine all the material to come to a conclusion as to whether or not there was a struggle between Nicole Brown Simpson and her assailants?
DR. BADEN: Yes, I did.
MR. SHAPIRO: Did you examine the neck area in photographs of Nicole Brown Simpson and see four different stab wounds?
DR. BADEN: Yes.
MR. SHAPIRO: And were those stab wounds of blunt edges going in different directions?
DR. BADEN: Yes.
MR. SHAPIRO: Would you describe those as a cluster of stab wounds?
MR. KELBERG: Your Honor, I'll object as leading and suggestive.
THE COURT: Sustained.
MR. SHAPIRO: How would you describe those stab wounds?
DR. BADEN: It was a grouping or cluster of stab wounds on the left side of the neck, but they were of different orientation. It wasn't rapid fire. The position of the knife and the skin changed during the course of the stab wounds.
MR. SHAPIRO: For purposes of explaining to the jury "Different orientation," could you just try to paint a picture in words for them?
DR. BADEN: Well, if a weapon, say a single-edged weapon is stabbed into somebody very rapidly and the victim is not moving, then a very tight grouping of stab wounds all oriented in the same direction, since the weapon and the hand tends to be oriented in the same direction, can occur and can indicate a very rapid striking of a person who isn't moving, and that can be an interpretation sometimes of stab wounds.
MR. SHAPIRO: Were you able to come to any conclusion regarding injuries on Nicole Brown Simpson's hands?
DR. BADEN: Umm, there were injuries--stab wounds and injuries on Nicole Brown Simpson's hands.
MR. SHAPIRO: And could you describe for the jury what those injuries resulted from in your opinion?
DR. BADEN: In my opinion, they represent what's been described previously as defensive type wounds that occurred while she was attempting to ward off blows or blows with a weapon.
MR. SHAPIRO: And in your opinion, would those injuries cause a bleeding of her palm areas of the hand?
DR. BADEN: Yes. Yes.
MR. SHAPIRO: I want to direct your attention now to blood under the fingernails of Nicole Brown Simpson. Are you familiar with cases where a victim has scratched at and clawed an assailant?
DR. BADEN: Yes.
MR. SHAPIRO: And do you have an opinion as to whether or not that type of reaching out and scratching of the skin that would result in blood would also result in a scraping of the skin on the part of the perpetrator or perpetrators?
MR. KELBERG: Objection, your Honor, unless we're talking about this case.
THE COURT: Rephrase the question.
MR. SHAPIRO: In this case, there's evidence that Nicole Brown Simpson had blood under her fingernails.
DR. BADEN: Yes.
MR. SHAPIRO: If that blood was the result of her scratching out at an assailant or assailants, would you expect that she would also have skin under her fingernails?
DR. BADEN: No, I would not expect it. Although it's possible, it rarely happens.
MR. SHAPIRO: What would you expect and why?
DR. BADEN: Well, just from experience, when scratching occurs during a struggle, wounds can open up on the skin of the assailant, of the scratched person, but the skin is often pushed to the side, a little blood comes under the fingernails and it is very unusual to find the skin from a perpetrator underneath the fingernails of a victim even though we often look for it. It is much more common--well, it's uncommon also to find assailant's blood, but that's more common, appreciably more common that finding assailant's skin.
MR. SHAPIRO: If that blood was not the blood of Nicole Brown Simpson, would that indicate to you that there would be injuries on someone else?
DR. BADEN: It would strongly suggest that.
MR. SHAPIRO: There was some discussion by Dr. Lakshmanan about the state of consciousness of Nicole Brown Simpson. Do you recall that testimony?
DR. BADEN: Yes.
MR. SHAPIRO: Is it your opinion, doctor, that prior to the time Nicole Brown Simpson's throat was cut, that she was unconscious?
DR. BADEN: No, it isn't my opinion.
MR. SHAPIRO: What is your opinion in that regard?
DR. BADEN: My opinion is that Miss Simpson struggled for some period of time with the assailant during which time she received various stab wounds including the stabs--the injuries to the hands. And when she suffered the fatal cut wound of the neck, her neck was above the bottom staircase. It was at least 18, 20 inches off the ground because much of the spurting blood from the cut through the carotid arteries went in that direction, toward the top of the first staircase and the riser on the second staircase, so that in my opinion, she wasn't lying unconscious on the g