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 ground. She was--her neck was above that level when she was cut.
MR. SHAPIRO: So is it your opinion, doctor, that the contusion that you discovered in the tissue at the Coroner's office of Nicole Brown Simpson's part of the brain, that the injury that caused that did not result in her being unconscious?
DR. BADEN: Yes. That would be my opinion. Such an injury can or cannot be associated with loss of consciousness. One needn't lose consciousness, and I think the position of her neck at the time that she forcefully bled from the carotid arteries that were cut would indicate she was not unconscious on the ground, but was at least somewhat higher.
MR. SHAPIRO: In order--in the order of occurrence of the stab wounds to--and injuries to Nicole Brown Simpson, do you have an opinion as to when her throat was slashed?
DR. BADEN: Yes. I agree with Dr. Lakshmanan's interpretation that that most likely was the final injury she received and she would have lost consciousness within seconds of suffering that cut wound because of the marked decrease in blood flow to the brain. The brain would have been deprived of oxygen and she would have lost consciousness.
MR. SHAPIRO: Now, there was a suggestion in the testimony by Dr. Lakshmanan that Nicole Brown Simpson was lying on the ground unconscious and that a shoeprint was placed on her back by the assailant. Do you agree with that conclusion?
DR. BADEN: I disagree with that conclusion.
MR. SHAPIRO: And why do you disagree with that conclusion, sir?
DR. BADEN: I disagree with that conclusion because there's nothing in the photographs or on the dress or on the body that to me looks like a shoeprint, that when Dr. Golden did the autopsy, he specifically says that there's no injury in that area and the little purple discolorations that are present that were referred to when--on the boards as a shoeprint, in my opinion, to a reasonably degree of medical certainty, is just the way blood settles after death and the variations in how the body changes after death. She had been laying on her back for many hours prior to the taking of that photograph. And my opinion is that there's no evidence at all to indicate that that's a shoeprint on the back. If a shoeprint were placed down hard enough to cause bruises and an imprint on the skin, given the circumstances, the setting, the soil, the area of struggle that had gone on in that narrow area where Mr. Goldman was found, there would also have to be some imprint of the soil or dirt or blood on the clothing and on the back also that wasn't present either.
MR. SHAPIRO: Is there any way an expert medical examiner could have performed any further type of test at the autopsy to confirm the cause of the discoloration?
DR. BADEN: Oh, surely. If there was any hint to Dr. Golden or to the other--remember, there were Miss Ratcliffe, there were criminalists, there were all the technicians, there were many people who were present and who saw the back. If any of them had thought there was a bruise or--a bruise in the nature of a shoeprint or any kind of bruise, a simple incision at the time of the autopsy could have distinguished between the normal settling of blood after death, the lividity that's been spoken of, which is a settling of blood in blood vessels, the blood vessels are all intact as opposed to a bruise where there's hemorrhage outside of the blood vessels, and a simple incision by Dr. Golden would have shown whether or not there was a bruise present. We--medical examiner doesn't normally do that unless there's reason to make incisions because of the care and sanctity of the body, but Dr. Golden clearly states there's no bruise there in his autopsy report.
MR. SHAPIRO: You heard Dr. Lakshmanan speculate that--
MR. KELBERG: Your Honor, I'll object. It misstates the testimony and argumentative.
MR. SHAPIRO: I haven't said what he speculated on.
THE COURT: Sustained.
MR. SHAPIRO: I haven't.
THE COURT: Proceed, but I'm suspicious.
MR. SHAPIRO: You heard Dr. Lakshmanan speculate--
MR. KELBERG: Your Honor, I object to the word "Speculate."
THE COURT: Overruled.
MR. SHAPIRO: --that one way that Nicole Brown Simpson could have been killed was that the perpetrator had a shoe on her back, pulled her hair up, hyperextended her neck and slit her throat, and the evidence of this was that there was no blood in her lungs.
MR. KELBERG: Your Honor, I object. That misstates Dr. Lakshmanan's testimony. I ask to be heard at sidebar.
THE COURT: Sustained.
MR. SHAPIRO: Did you hear Dr. Lakshmanan's testimony regarding Nicole Brown Simpson being on the ground unconscious, having her hair pulled back, her neck hyperextended and her throat slit? Did you hear that testimony?
DR. BADEN: Yes.
MR. SHAPIRO: Did he offer an explanation for that?
DR. BADEN: Well, he described it and supported it by the fact that there was no sucking of blood into the lungs, aspirating blood.
MR. SHAPIRO: In your opinion, is there any way a responsible medical examiner could offer that opinion with a reasonable degree of medical certainty?
DR. BADEN: I think Dr. Lakshmanan is responsible in general terms, but I think that--I disagree with that opinion. I think it's a wrong opinion.
MR. SHAPIRO: And why do you disagree with that?
DR. BADEN: Umm, whether or not a victim sucks blood into his or her lungs--in this instance, Miss Simpson didn't and Mr. Goldman did--depends on a stab wound going through the windpipe--opening up the windpipe or the mouth area so that blood can get in and then the person living long enough to inhale it. Inhalation of blood into the lungs is aspiration. And that could happen with the neck flexed or with the chin against--almost against the chest. Has nothing to do with the hyperextension of the neck. It has to do with whether there's bleeding into the airway, air passage area, and whether the person lives long enough to be able to inhale the blood and nothing to do with hyperextension.
MR. SHAPIRO: We have now gone through a series of questions on a general category of discussion as to whether or not in your opinion Nicole Brown Simpson struggled with the perpetrator or perpetrators of this crime. Based on what you have told the jury, do you have an opinion as to whether or not she was in fact engaged in a struggle prior to her death?
DR. BADEN: Yes, I have an opinion.
MR. SHAPIRO: What is that opinion?
DR. BADEN: My opinion is, she struggled with the assailant or assailants prior to succumbing when her neck was cut.
MR. SHAPIRO: And why is it your opinion that there was a struggle between Nicole Brown Simpson and her assailant or assailants prior to the time she died?
DR. BADEN: Well, because there were about nine or 10 stab wounds and cut wounds on her body before she suffered the fatal injury because there were cut wounds on her hands in a defensive manner and because the stab wounds on the neck, the four or five stab wounds on the neck were of different positions, indicating motion between the weapon and the skin, which is typical in a struggle, and that she suffered no--no incapacitating injury until the final cut wound of the carotid arteries. Up until that point, she--there was no reason for her to be unconscious and not to struggle except for the bruise on the brain. And that will knock some people out and some people won't lose consciousness. It certainly could cause a person to fall downward.
MR. SHAPIRO: So it's your opinion that you could not offer an opinion with a reasonable degree of medical certainty whether or not that contusion would cause unconsciousness?
DR. BADEN: That's correct.
MR. SHAPIRO: But there is no question in your mind that there was a struggle?
DR. BADEN: That's my opinion to a reasonable degree of medical certainty.
MR. SHAPIRO: I want to direct your attention now towards the murder of Ronald Goldman and, again, focus the overall attention on whether or not in your opinion there was a struggle. In that regard, was there any evidence of wounds on the hands of Ronald Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: What evidence was there?
DR. BADEN: There were stab wounds on the hands again in a defensive manner, called defensive wounds by Dr. Golden, and there were bruises on the backs of the hands and the knuckles and the fingers of the hands.
MR. SHAPIRO: Is it your experience that defensive wounds in an assault by a knife would generally cause injuries to the victim's palm and not cause cuts to the tops of the hands?
DR. BADEN: Yes.
MR. SHAPIRO: Does the fact that there were no cuts on the back of the hand indicate that Mr. Goldman did not make a fist?
DR. BADEN: It does not--in my opinion, has no indication that he didn't make a fist or didn't attempt to use a fist in a protective or offensive manner.
MR. KELBERG: I'm sorry. Offensive--
THE COURT: Protective or offensive.
MR. KELBERG: Thank you.
MR. SHAPIRO: If there was an opinion offered that because there were no cuts or bruises beyond one knuckle, that that would mean that there was no attempt to strike the assailant, would you agree or disagree with that proposition?
DR. BADEN: I disagree with that.
MR. SHAPIRO: Now, the hand wounds to Mr. Goldman were three stab wounds?
DR. BADEN: Uh, yes. Two on the right hand and one on the left hand if I recall.
MR. SHAPIRO: In the area where Mr. Goldman had defensive wounds on his hands, would they bleed a lot?
DR. BADEN: Yes. Yes.
MR. SHAPIRO: Now, there was evidence that there was an injury to a knuckle on Mr. Goldman. Did you observe that?
DR. BADEN: I observed that in the autopsy report and the photographs, yes.
MR. SHAPIRO: And is that injury consistent with striking a person?
DR. BADEN: Yes, it is.
MR. SHAPIRO: And if that injury was caused by striking a person, do you have an opinion as to whether or not it would leave a mark on the person who was struck?
DR. BADEN: Yes. I have an opinion that it's likely that a mark would be left, but it's not absolute. Not every punch leaves a mark, but it certainly would indicate that it landed with force on the person that it struck.
MR. SHAPIRO: Do you have an opinion as to whether or not that injury was caused by moving back and hitting your knuckle or on Mr. Goldman hitting his knuckle on a tree?
DR. BADEN: I have an opinion that--it is not my opinion that it happened that way.
MR. SHAPIRO: Do you have an opinion as to whether it occurred by Mr. Goldman backing up and hitting his knuckle on a wrought iron fence?
DR. BADEN: My opinion is it did not--the injuries did not happen that way.
MR. SHAPIRO: Why is that?
DR. BADEN: A lot of force is involved and a great deal more force can be generated by punching forward with the hand than by flailing backwards against a fence. There's not enough force generated and it's kind of purposeless motion. This is typical for injuries in punching somebody and which medical examiners, doctors see not uncommonly, and it would be very odd to have it against a wrought iron fence. It would have to be a fence that was punched with the same degree of force that you'd punch a body, and that's hard to do by flailing backwards.
MR. SHAPIRO: There--the evidence has shown that there were numerous or multiple stab wounds on Mr. Goldman. Did you count the number of stab wounds that he had?
DR. BADEN: Yes, I did. There are more than 22 stab wounds of various kind. In addition to the 22, there's some other clustering of wounds that could be individually called stab wounds and maybe one could have 30 stab wounds. But at least 22 depending on how one counted them.
MR. SHAPIRO: Would you agree that there are a significant number of stab wounds--
DR. BADEN: Yes.
MR. SHAPIRO: --on Mr. Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: And did those stab wounds come from different directions in your opinion?
DR. BADEN: Yes. They came from different directions, some front, some back, some from the side.
MR. SHAPIRO: Now, is there any evidence that Mr. Goldman attempted to kick his assailant or assailants?
DR. BADEN: Yes, there is.
MR. SHAPIRO: And what evidence have you found in that regard of Mr. Goldman kicking his assailant or assailants?
DR. BADEN: The evidence would be that I believe on his right shoe, there's a cut on the top of the shoe near the toe area, which is not proof that he kicked at somebody, but is indicative of that.
MR. SHAPIRO: And did you examine when you went to the police department the shoes and see photographs of the shoes that Mr. Goldman was wearing?
DR. BADEN: Yes. Yes.
THE COURT: Dr. Baden, if you would, would you allow Mr. Shapiro to ask the question?
DR. BADEN: I'm sorry, sir. I'm also anxious to get out of here.
MR. SHAPIRO: Your Honor, may I approach the witness?
THE COURT: You may.
MR. SHAPIRO: Let me show you a photograph on the bottom right-hand corner.
MR. KELBERG: I'm sorry. The number for this photograph, your Honor?
THE COURT: 1316.
MR. SHAPIRO: Photograph--do you see a photograph that shows the cut on the shoe of Mr. Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: And would you--
MR. SHAPIRO: With the Court's permission, may he come point that out to the jury, your Honor?
THE COURT: Yes.
MR. SHAPIRO: And then perhaps--I don't know. Do you have a magnifying glass that might be helpful to see?
DR. BADEN: I just happen to have one of those around I think.
MR. SHAPIRO: Thank you. Would you come and, with the Court's permission, just demon--show to each juror where--
THE COURT: Well, I think you just have to hand it down, pass it down.
MR. SHAPIRO: Or pass it down? Can he point out the area, your Honor, to the jury?
THE COURT: Yes. Actually, Dr. Baden, why don't you in the middle of the jury box just point out what it is you are referring to, directing their attention to.
MR. SHAPIRO: If you'll come here, Dr. Baden.
MR. KELBERG: Your Honor, the only difficulty I have, this page has four apparent photographs. It appears that they're using one photograph and that's the one that's marked for identification. I would ask that--
THE COURT: Dr. Baden has folded it over so there's only one pertinent photograph.
MR. KELBERG: Thank you, your Honor.
THE COURT: Why don't we put it on the elmo and you just point where it is--
MR. SHAPIRO: Well, it's going to be hard--
THE COURT: --so they know where to look.
MR. SHAPIRO: Where to look first. Thank you. That's a good suggestion, your Honor.
THE COURT: Thank you.
MR. SHAPIRO: Well, actually you can see it pretty good on this elmo.
DR. BADEN: There's a little horizontal cut up on the right shoe near the inner tip is what I was referring to (Indicating).
THE COURT: Can the jurors see?
MR. SHAPIRO: Yes. I didn't think it would come across that clearly.
THE COURT: All right. The jurors nodded yes, they can see it.
MR. SHAPIRO: I think we can take that down now.
MR. SHAPIRO: Dr. Baden--whoops.
THE COURT: We just need to put it up and print it. All right. We'll use the printout as 12--1316. Proceed.
MR. SHAPIRO: Based on what you have just testified to, do you have an opinion as to whether or not Ronald Goldman struggled with his assailants or assailant?
DR. BADEN: Yes, I have an opinion.
MR. SHAPIRO: And what is that opinion?
DR. BADEN: That Ronald Goldman did struggle with his assailant or assailants.
MR. SHAPIRO: And what is the basis for your opinion that there was a struggle prior to the time he was killed?
DR. BADEN: The basis for my opinion is that he had multiple cut wound injuries over different parts of the body, front and back, face and neck, chest and abdomen which occurred in different positions, that he had injuries on his hands indicative of protected, defensive, offensive wounds, that the blood on his clothing, the jeans especially shows that he was standing for time enough from the bleeding from the neck, the left jugular vein, to flow out of the--out of the cut down the left side of his body, down the jeans, staining the jeans and into his shoes, which takes time. The crime scene also is indicative of a struggle with a lot of disturbance of the soil and earth in the area that he collapsed and died and I think that the cut on the shoe is also indicative of a knife coming across that shoe at some point indicative of a struggle.
MR. SHAPIRO: You have just told the jury that Mr. Goldman's jugular vein was cut and blood would ooze from that.
DR. BADEN: Yes.
MR. SHAPIRO: Would that injury prevent him from screaming?
DR. BADEN: No. He had no injury to his vocal cords or his body that would have prevented him from calling out, screaming, making words or--neither did Miss Simpson. She also was able--had no--no injury that would have prevented her from crying out.
MR. SHAPIRO: In your opinion, was Mr. Goldman capable of screaming before his jugular vein was cut?
DR. BADEN: Yes.
MR. SHAPIRO: In your opinion, was Mr. Goldman capable of screaming after his jugular vein was cut, but before death?
DR. BADEN: Yes.
MR. SHAPIRO: If there was an assailant who had his hand over Mr. Goldman's mouth to prevent him from screaming, would that necessarily leave any identifiable marks that would be seen at autopsy?
DR. BADEN: Covering the mouth and even the nose with a hand, as you say, would not cause any injury that could be seen at autopsy.
MR. SHAPIRO: Would a hand over the mouth stop somebody from screaming?
DR. BADEN: If it were held tightly enough, yes.
MR. SHAPIRO: Could a hand around the throat stop somebody from screaming?
DR. BADEN: A hand or a choke-hold type with the forearm would prevent somebody from screaming, yes.
MR. SHAPIRO: Would a choke hold or a hand on the throat leave any noticeable injuries that would be seen at the autopsy?
DR. BADEN: Not in this instance, no.
MR. SHAPIRO: Now, I want to go back now and specifically direct your attention to the jugular vein cut and focus the jury's attention, if I might, on that. You've described that cut as causing blood that would ooze; is that correct?
DR. BADEN: Yes.
MR. SHAPIRO: If a person is cut in the jugular vein and the blood is oozing, is the person still capable of standing?
DR. BADEN: Yes.
MR. SHAPIRO: Is the person still capable of struggling?
DR. BADEN: Yes.
MR. SHAPIRO: If there's blood that came down onto the right side of the shirt as a result of a cut on the jugular vein on the left side, would that have any effect on your opinion as to whether or not there was a struggle?
DR. BADEN: No.
MR. SHAPIRO: In viewing this injury to the throat, do you have an opinion as to how long Mr. Goldman could have been standing after that injury?
DR. BADEN: In my opinion, to a reasonable degree of medical certainty, after the jugular vein was cut, from the time of the cutting until he would collapse because of blood loss could be many minutes.
MR. SHAPIRO: Could a person survive that wound?
DR. BADEN: Yes.
MR. SHAPIRO: How long could a person survive that wound?
DR. BADEN: If a person is brought promptly to a hospital, the jug--as opposed to the carotid arteries, which incapac--which caused--the injury which caused the death of Miss Simpson which caused rapid bleeding very quickly and cuts off blood--oxygen going to the brain, the veins, the jugular vein is a low pressure system and it's bringing blood back to the heart, and it bleeds very much more slowly and it would take many minutes of bleeding from the jugular vein to lower the blood pressure enough so a person would even get woozy and fall to the ground. At that time, the person would still be alive.
MR. SHAPIRO: Was there a thigh wound observed on Mr. Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: What side?
DR. BADEN: On the left side through the pocket area.
MR. SHAPIRO: And was there a lot of blood on Mr. Goldman's left pant leg?
DR. BADEN: Yes.
MR. SHAPIRO: And was there a lot of blood on Mr. Goldman's left shoe?
DR. BADEN: Yes.
THE COURT: I think you covered this already.
MR. SHAPIRO: I'm getting--I'm almost finished, your Honor. I mean they had a long time on this.
THE COURT: I understand. But I think we've covered the nature of this wound.
MR. SHAPIRO: I want to tie this altogether in a different way, if I may, please.
MR. SHAPIRO: And what does that indicate to you in relationship to what position Mr. Goldman was at?
DR. BADEN: At the time of the thigh wound, he was still standing because the blood was going still downward together with the blood coming down from the left side of the neck.
MR. SHAPIRO: And would that be consistent with him standing during a struggle?
DR. BADEN: Yes.
MR. SHAPIRO: Did you observe two wounds to the chest of Mr. Goldman?
DR. BADEN: Yes.
MR. SHAPIRO: Did those wounds pierce his lung?
DR. BADEN: Yes. There were two stab wounds to the right side of the chest that caused lacerations in the right--the lower part of the right lung.
MR. SHAPIRO: And did you observe a stab wound on the side of his abdomen that pierced his aorta?
DR. BADEN: Yes. There was another stab wound on the left side of the abdomen that went from left to right through the aorta about an inch and a half above the belly button.
MR. SHAPIRO: Would you describe for us, please, what the aorta is and where it's located in the body?
DR. BADEN: The aorta is--remember from biology days--the main blood vessel that brings blood with oxygen from the heart to the rest of the body. As the heart pumps out blood, the blood comes up the aorta, 20 percent goes up to the head and brain and the other 80 percent goes downward to all the other organs and muscles of the body. The aorta is the largest blood vessel in the body and carries that 80 percent downward.
MR. SHAPIRO: Now, of all the wounds you've described, they all bled; is that correct?
DR. BADEN: Yes.
MR. SHAPIRO: All 22 to 30 wounds?
DR. BADEN: Yes, except the superficial cuts on the neck may not have bled.
MR. SHAPIRO: Is there a difference between internal bleeding and external bleeding?
DR. BADEN: Well, what it refers to is bleeding inside the body and bleeding outside the body. It doesn't--either way has the same effect on cardiac function. If the blood gets out of the blood vessels, then it's not available to go to the brain, the kidneys and the other parts of the body. So in that sense, it doesn't matter whether it bleeds inside or outside if it's going to go out of the blood vessels.
MR. SHAPIRO: Now, my question to you is, on the jugular vein, would that cause external bleeding or internal bleeding?
DR. BADEN: External. Bleeds outside the body, and that's the blood that came, trickled down the chest and down the--to the left shoe, the left side of the body.
MR. SHAPIRO: The thigh area, the palm injuries?
DR. BADEN: External bleeding, and that's bleeding on the ground, on a perpetrator, on--outside the body.
MR. SHAPIRO: The thigh injury?
DR. BADEN: Outside the body.
MR. SHAPIRO: The chest and the aorta?
DR. BADEN: The chest and the aorta are internal bleeding, bleed inside the body, and the body captures that blood so it doesn't get lost, but it's not useful blood.
MR. SHAPIRO: Do you have an opinion as to which came first; the cut of the jugular vein or the stab wounds to the chest?
DR. BADEN: In my opinion, to a reasonable degree of medical certainty, the cut wound to the neck came first.
MR. SHAPIRO: How much blood is in the--contained in an average adult male?
DR. BADEN: About five quarts.
MR. SHAPIRO: How long--if you've told us--well, let me ask you this in this way. How long could someone survive after having a jugular vein cut? How long could they survive?
DR. BADEN: Assuming it's a transection, a cut as in Mr. Goldman, cut completely through, a person with a jugular vein cut could stay alive, not necessarily conscious, for 10, 20 minutes if it's untreated. Much of that time, he might be unconscious.
MR. SHAPIRO: And how much blood would accumulate in the chest cavity as a result of the chest wounds here? Do you have any way of knowing how much blood accumulated?
DR. BADEN: Yes.
MR. SHAPIRO: And how do you know that?
DR. BADEN: Dr. Golden in doing the autopsy, as is appropriate, measured the amount of blood that was in the cavity surrounding the lungs that measures the amount of blood coming out of the right lung, the two of them, the right chest and right lung, and he estimated he said between 100 and 200 cc. It's about three to seven ounces of blood.
MR. SHAPIRO: Can you tell this jury with a reasonable degree of medical certainty how long it was between the time Mr. Goldman's jugular vein was cut and he was stabbed in the chest?
DR. BADEN: Yes.
MR. SHAPIRO: Tell the ladies and gentlemen how long that was.
DR. BADEN: 100 to 200 cc of blood is very small amount of blood to bleed from stab wounds of the lung. So my opinion to a reasonable degree of medical certainty is that when he suffered the stab wounds of the lung, his heart was not functioning properly, he had already--the blood pressure had fallen considerably so that not much blood could flow out of the damaged lungs. So in my opinion, the reason that Mr. Goldman died was because of the blood loss from the internal jugular vein laceration. That was the major source of the bleeding. Even though he had other wounds, none of them bled as much. And that it would have taken about 10 minutes, certainly not less than five minutes for enough blood to be lost, a thousand, 1500 cc of blood to be lost that the lung would not be pumping out blood when the lungs were stabbed because my opinion is based on the fact that when the lungs are stabbed, the heart is not pumping effectively and it would take at least five, 10 minutes for their heart to stop pumping effectively after he started bleeding from the jugular vein.
MR. SHAPIRO: Could it have been as long as 15 minutes between the time the jugular vein was cut and the chest wounds?
DR. BADEN: There's so many factors involved, individual factors, it's possible--yes, it could be. Could be.
MR. SHAPIRO: Do you know when in the struggle in time from the beginning to the time--how much time elapsed before Mr. Goldman's jugular vein was cut?
DR. BADEN: No. No.
MR. SHAPIRO: Could have been one, two, three minutes into the struggle?
DR. BADEN: Yeah. There could have been a struggle going on, hand cuts, other injuries. I can only start dating the length of time to die once the left jugular vein is cut. At some point, the left jugular vein gets cut and then he will bleed slowly for many minutes until his heart can no longer pump blood when his lung is cut.
MR. SHAPIRO: Was the cut to the chest, which you have told us could have been as long as 15 minutes, more likely 10 minutes and as little as 5 minutes after the jugular vein, was that necessarily the last wound to Mr. Goldman?
DR. BADEN: No. No.
MR. SHAPIRO: If Ronald Goldman began a struggle with his assailants at 10:40 P.M., within a reasonable degree of medical certainty, can you tell us when the stab wounds to the chest would have occurred?
DR. BADEN: My opinion would be at least five minutes, more likely around 10 minutes after the neck started to bleed.
MR. SHAPIRO: So if the struggle started--just take basic minimum times now. If the struggle started at 10:40, taking into account that there could have been injuries and struggle before the jugular vein was cut and there could have been injuries after the chest, what is the earliest time, the earliest time that he would have been cut in the chest in your opinion?
DR. BADEN: In my opinion, 10--10:45.
MR. SHAPIRO: Could have been as late as 10:50?
DR. BADEN: Yes.
MR. SHAPIRO: Or later?
DR. BADEN: Yes.
MR. SHAPIRO: Thank you. Nothing further.
THE COURT: Mr. Kelberg.
MR. KELBERG: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
CROSS-EXAMINATION BY MR. KELBERG
MR. KELBERG: And good afternoon, Dr. Baden.
DR. BADEN: Good afternoon, Mr. Kelberg.
MR. KELBERG: Dr. Baden, a couple of preliminary questions. No. 1, I have never retained you on behalf of the District Attorney's office to review any case of our office; is that correct?
DR. BADEN: I've spoken to you in the past.
MR. KELBERG: Sir, my question--
DR. BADEN: But I have not been retained by you.
MR. KELBERG: In fact, I reminded you our only previous professional contact was, you were retained by a lawyer representing a physician I was investigating in a case of possible physician assisted suicide, and that was our contact, a brief telephone conversation about some of your findings. Do you recall that, sir?
DR. BADEN: A telephone conversation. I don't remember how brief it was.
MR. KELBERG: Sir, so I have never retained you on behalf of our office, correct?
DR. BADEN: Not that I'm aware of.
MR. KELBERG: You've never been an expert witness on behalf of our office in a case in which I've been the prosecutor?
DR. BADEN: I was--I'm not sure about that. I was advised that you had suggested me to--
MR. KELBERG: Your Honor, I'll move to strike.
THE COURT: Just answer the question.
MR. SHAPIRO: Your Honor, may we approach on that?
THE COURT: No. Proceed.
MR. KELBERG: The question was, you have never testified on behalf of our office in a case in which I've been the prosecutor, correct?
MR. SHAPIRO: Your Honor, I'm going to object.
DR. BADEN: That's correct.
MR. KELBERG: And, in fact, doctor, you have testified on behalf of our office in trial on only one incident, the Boggs case, although you've testified in two separate trials; isn't that correct, sir?
DR. BADEN: No. That's not correct.
MR. KELBERG: Sir, you said that Kathy Evelyn Smith's case, the Belushi case, you testified at trial. That's your recollection?
DR. BADEN: That's my recollection.
MR. KELBERG: Didn't she plead guilty to involuntary manslaughter and that you testified at the preliminary hearing, not at the trial, sir, there was no jury; isn't that correct?
DR. BADEN: I remember being cross-examined by Mr. Weitzman and being examined by Mr. Montagna. I remember it as a trial. Maybe it's a different name for it.
MR. KELBERG: If it wasn't a trial, if there wasn't a jury, if it was a preliminary hearing, then it would be correct to say, isn't it, sir, that you've only testified on behalf of our office arising out of one case for the Ellis Green death?
DR. BADEN: I have testified at trials where there are no juries. I've testified at bench trials.
MR. KELBERG: On behalf of our office, sir.
DR. BADEN: Mr. Kelberg, you know better than I what happened with Mr. Belushi. I testified at a grand jury. I testified in some kind of a--some kind of a court setting. Maybe it wasn't a trial.
MR. KELBERG: Doctor, please listen to the question carefully. Sir, is it accurate to say that you have testified in trial with a jury present on behalf of our office only in the cases arising out of the death of Ellis Green, the Boggs, Hanson, Hawkins case prosecuted by Mr. MacKenzie? Isn't that correct, sir?
DR. BADEN: I said to you I don't know that. I remember testifying at the Belushi what I thought was a trial.
MR. KELBERG: And if that wasn't a trial, then is the answer yes?
DR. BADEN: Yes.
MR. KELBERG: And, sir, that death occurred in 1988, didn't it, the Ellis Green death?
DR. BADEN: I believe so.
MR. KELBERG: And you were retained in 1989, weren't you?
DR. BADEN: I believe so.
MR. KELBERG: Have you been retained by our office at any time since 1989 for any case other than the Boggs, Hanson, Hawkins case?
DR. BADEN: Just the recent trials on Hanson and Hawkins that just completed.
MR. KELBERG: My question was, sir, have you been--and please listen carefully. Have you been retained by our office since 1989 on any case other than the Boggs, Hanson, Hawkins trials arising out of the death of Ellis Green in 1988?
DR. BADEN: No.
MR. KELBERG: Doctor, how much money have you been paid for your involvement in the Simpson case to this point in time?
DR. BADEN: It's about 70 times 1500, which would be about a hundred thousand dollars.
MR. KELBERG: Well, you said that you've been out in Los Angeles for about 70 days since the middle of June; is that correct?
DR. BADEN: Yes.
MR. KELBERG: You did work on this case well before coming out here in June for this 70-day period, didn't you, sir?
DR. BADEN: I've done a lot of work in New York.
MR. KELBERG: Yes. And, sir, you were billing for that time too, aren't you, sir?
DR. BADEN: No. I'm only billing for the time I come to Los Angeles.
MR. KELBERG: How many hours have you spent on this case prior to coming to Los Angeles?
DR. BADEN: Today, now?
MR. KELBERG: Prior to coming to Los Angeles in June, sir, how many hours have you spent on this case?
MR. SHAPIRO: Your Honor, June of what year?
MR. KELBERG: Of 1995 when you started your 70-day period out here.
MR. SHAPIRO: That's incorrect. That misstates the testimony.
THE COURT: Rephrase the question.
MR. KELBERG: Doctor, is it correct to say that since June of `95, you've been out here for 70 days--
DR. BADEN: No.
MR. KELBERG: --or 70 days from the time you first got involved in the case and came out on June 16th?
DR. BADEN: 70 days from the time I was first involved in the case in June 14th, 1994.
MR. KELBERG: And you arrived here on June 16th I think was your testimony.
DR. BADEN: Of `94.
MR. KELBERG: Correct.
DR. BADEN: Yes.
MR. KELBERG: All right. Other than those 70 days then, sir, how many hours have you spent on the case?
DR. BADEN: Oh, I would imagine a hundred, 200 hours in New York City from when I was in New York for which I didn't bill.
MR. KELBERG: Now, sir, you said on direct that you've spent at least 200 hours on the phone with Mr. Shapiro on the case. Was that accurate testimony?
DR. BADEN: I spent a lot of time on the phone with Mr. Shapiro for which I don't bill him.
MR. KELBERG: Did you say you spent 200 hours?
DR. BADEN: Umm, I don't recall.
MR. KELBERG: Well--
DR. BADEN: If I said it, I said it, yeah. I spent a lot of time on the phone with Mr. Shapiro.
MR. KELBERG: Are those calls primarily calls when you're in New York and he's in Los Angeles?
DR. BADEN: That's correct.
MR. KELBERG: Now, sir, is it your usual billing rate for parties that retain you 250 to $300 a hour?
DR. BADEN: That's correct.
MR. KELBERG: So if you were to charge for those 200 hours of phone calls, that would be another $75,000--I'm sorry--$60,000 if it's $300 an hour; isn't that correct?
MR. SHAPIRO: Objection. Calls for speculation.
THE COURT: Sustained.
MR. KELBERG: Doctor, let me briefly move to another area, and I'll come back to this. In Mr. Cochran's opening statement, he referred to you as one of the foremost pathologists in the United States. Do you agree that that is an accurate description of you?
DR. BADEN: I don't characterize myself--I'm a forensic pathologist. There aren't too many forensic pathologists around in this country and I'm one of a small group of forensic pathologists.
MR. KELBERG: You've known Dr. Lakshmanan Sathyavagiswaran since about 1975?
DR. BADEN: Yes.
MR. KELBERG: Do you consider him one of the foremost forensic pathologists in the United States?
DR. BADEN: I think he's a fine person and--
MR. KELBERG: My question--
DR. BADEN: --and a good forensic pathologist.
MR. KELBERG: My question, sir, is, do you consider Dr. Lakshmanan Sathyavagiswaran to be one of the foremost forensic pathologists in the United States?
DR. BADEN: I wouldn't say that, no.
MR. KELBERG: Now, doctor, you--do you consider yourself one of the foremost pathologists in--forensic pathologists in the area of time of death determination?
DR. BADEN: I consider myself an ordinary forensic pathologist trying to do what we're taught to do and what our experience teaches us to do as best we can.
MR. KELBERG: Do you consider yourself expert as a forensic pathologist in determination of time of death?
DR. BADEN: I think as much as all forensic pathologists have expertise and experience in determining time of death.
MR. KELBERG: Do you think--
DR. BADEN: And since I've been at it longer than most, I have a little more experience than most. But I don't consider myself foremost in anything. I'm just trying to do the best I can.
MR. KELBERG: Doctor, did you bring your curriculum vitae with you?
DR. BADEN: I don't think I have one with me, no, but I think the attorneys may have.
MR. KELBERG: Well, I have a copy in case Mr. Shapiro doesn't.
MR. SHAPIRO: We have copies.
MR. KELBERG: I'm sorry?
MR. SHAPIRO: We have a copy that you can use.
MR. KELBERG: May I borrow yours then, because I assume that's going to be the most up-to-date.
MR. SHAPIRO: They're all the same.
MR. KELBERG: Your Honor, I have a document, curriculum vitae, M. Baden, Md. may this be marked People's next in order?
THE COURT: 579.
MR. KELBERG: 579?
THE COURT: Yes.
MR. KELBERG: May I on the front page write 579? May I approach?
THE COURT: You may.
(Peo's 579 for id = Dr. Baden's CV)
MR. KELBERG: Dr. Baden, let me show this exhibit 579. Are you familiar with it?
DR. BADEN: Yes.
MR. KELBERG: And that is in fact the curriculum vitae you provided to Mr. Shapiro to provide to us?
DR. BADEN: It's a curriculum vitae provided to Mr. Shapiro at some point.
MR. KELBERG: May I collect it, your Honor?
MR. KELBERG: In fact, doctor, why don't you hold on to that copy and I'll use--I think I have another one. And, doctor, this is the same curriculum vitae that was used by Mr. MacKenzie in the Hawkins, Hanson case when you recently testified; isn't that correct?
DR. BADEN: I would imagine so. I'm not sure.
MR. KELBERG: Now, sir, you on--in this document, you include your professional publications, don't you?
DR. BADEN: Yes.
MR. KELBERG: Have you ever published an article in any forensic pathology text on the subject of time of death determination?
DR. BADEN: I don't believe so, no.
MR. KELBERG: Have you ever published an article in any recognized forensic pathology text on the subject of sharp force injuries, including stab wounds?
DR. BADEN: Not specifically, no.
MR. KELBERG: Doctor, have you ever published a chapter in any recognized forensic pathology textbook on the subject of blunt force trauma?
DR. BADEN: No.
MR. KELBERG: Have you ever published a chapter in any recognized forensic pathology textbook on the subject of blood spatter analysis?
DR. BADEN: No.
MR. KELBERG: Have you ever published a chapter in any recognized forensic pathology textbook on crime scene collection?
DR. BADEN: No.
MR. KELBERG: Doctor, have you ever published a chapter in any recognized forensic pathology text on the subject of shoeprint analysis?
DR. BADEN: No.
MR. KELBERG: Shoeprint comparison?
DR. BADEN: No.
MR. KELBERG: Have you ever published anything in any peer review journal on any of the topics I just gave you?
DR. BADEN: No, I haven't.
MR. KELBERG: Doctor, you're familiar with Dr. Spitz?
DR. BADEN: Yes.
MR. KELBERG: And his book, Spitz and Fisher?
DR. BADEN: Yes.
MR. KELBERG: 3rd edition?
DR. BADEN: Yes.
MR. KELBERG: In the first edition, you did publish a chapter. You were a contributor to a chapter in that book, weren't you, sir?
DR. BADEN: I wrote a chapter.
MR. KELBERG: What was that chapter about, sir?
DR. BADEN: On drug abuse.
MR. KELBERG: And in fact, that is what you claim to be your primary area of specialty within the field of forensic pathology; isn't that the case?
DR. BADEN: Not quite.
MR. KELBERG: Well, sir--I'm sorry.
DR. BADEN: If I may answer.
MR. KELBERG: Sure.
DR. BADEN: It's the area that I did most of my publishing when I was in New York City and we used to see a lot of drug abuse deaths. So that was the area that I had special interest in.
MR. KELBERG: And, sir, when you say that's where you published most of your materials in, in your curriculum vitae, you list 80 publications, don't you?
DR. BADEN: Yes.
MR. KELBERG: And of those 80, what number relate to the subject of drug and/or alcohol?
DR. BADEN: The great majority. I'm sorry. The great majority.
MR. KELBERG: And, doctor, when did you publish--well, if you'll look at your curriculum vitae, item 73 is published in the journal of trauma in 1979. Do you see that?
DR. BADEN: Yes.
MR. KELBERG: And then the next--starting with `74 through `80--I'm sorry--`74 through `79 go through the period of 1980, `81, `83, `85, correct?
DR. BADEN: Yes.
MR. KELBERG: Now, sir, what have you published since you left the medical examiner's office in New York City in 1985?
DR. BADEN: Well, I wrote a book that you may have and I'm in the process of writing a textbook.
MR. KELBERG: Now--
DR. BADEN: Where I'll cover the points that you've raised.
MR. KELBERG: The book that you wrote you've told us about, you gave the title as unnatural deaths, confessions of a medical examiner; is that correct?
DR. BADEN: Yes. That was made for--meant for public reading.
MR. KELBERG: You would not hold this out as the kind of forensic pathology textbook, for example, that Spitz and Fisher's medical legal investigation of death is, would you, sir?
DR. BADEN: That's correct. The latter is a textbook and this is meant as a nonfiction book.
MR. KELBERG: Or, for example, Dr. Knight's forensic pathology text?
DR. BADEN: That's correct. It's not a textbook. It's a--
MR. KELBERG: Now, sir, when you--you've testified at least a thousand times in your 30-year career, haven't you, sir?
DR. BADEN: Including grand juries, certainly, yes.
MR. KELBERG: And, sir, you're commonly asked since you wrote this book, aren't you, on direct examination the title of the book?
DR. BADEN: I'm sorry?
MR. KELBERG: When you're questioned by the party calling you as a witness, you're commonly asked to give the title of this book, aren't you?
DR. BADEN: Sometimes.
MR. KELBERG: And don't you, without variation, give the title as unnatural death when the question is asked by the party calling you?
DR. BADEN: No. Depends. The title is unnatural death. Its subtitle is confessions of a medical examiner.
MR. KELBERG: Isn't it usually through cross-examination that you have to testify that it has a subtitle, confessions of a medical examiner?
DR. BADEN: No.
MR. SHAPIRO: Objection, your Honor. That's--
THE COURT: Well, it's been answered, but let's move on.
MR. KELBERG: Doctor, the subtitle, confessions of a medical examiner, does that imply that you have sins that you confess to in this book?
DR. BADEN: No, it doesn't. It implies that the United States has sins that we have to address.
MR. KELBERG: Doctor, are you critical at all of yourself in this book?
DR. BADEN: Sure. I'm--
MR. KELBERG: How?
DR. BADEN: I'm part of the problem, that there is--the--the investigation of unnatural death in this country, one of the themes in my book, is a national disgrace. That most instances where autopsies are done, investigations are done on people who are murdered--it's 75 people today who are murdered in the United States, and the great, great majority of those murders are being investigated by persons not trained to do those investigations by--including physicians who are trained to be good hospital doctors, but who are not trained forensic pathology, and that's why lots of mistakes occur in this country and it has a relevance to capital punishment.
MR. KELBERG: Doctor, my question was, for example, you are critical of the autopsies performed by a number of doctors in cases that you use as case examples in this book; are you not?
DR. BADEN: Yeah. I do refer to cases, to autopsies including that of president Kennedy that were not done to the standards of a proper forensic pathologist.
MR. KELBERG: You are critical of a number of physicians who performed autopsies in cases that you use in this book; isn't that correct, sir?
DR. BADEN: Yes.
MR. KELBERG: Are you ever critical in this book of any autopsy you ever performed?
DR. BADEN: I'm critical of my early attitudes, you know, when I was starry-eyed and thought the media attention was a positive force.
MR. KELBERG: My question--
DR. BADEN: But I--I don't think I--I'd have to look through it again. I haven't really read through it in a long time.
MR. KELBERG: Well, sir, can you remember any incident--
DR. BADEN: In which I'm critical of me?
MR. KELBERG: --of where you are critical of any autopsy you performed?
DR. BADEN: I believe so, but I don't have anything that I can recall at this moment.
MR. KELBERG: Well, maybe if we don't finish today and you're back tomorrow, over the evening, I'll be glad to lend you my copy--
DR. BADEN: If that possibility exists, I will be glad to do that, Mr. Kelberg.
MR. KELBERG: Now, doctor, in fact, you alluded to it I think on direct exam, but let me go to an area in your book that discusses your attitude towards the press.
MR. KELBERG: If I could have just a moment, your Honor.
MR. KELBERG: Did you write this in your book? "I liked the reporters and the television cameras. The fact that they were covering my work added importance to it, an extra dimension. The visibility counterbalanced the low esteem in which we were held by the rest of the medical profession. Forensic pathology was filled with misfits. It was considered a dumping ground for incompetence, a field that alcoholics descended into, a refuge for doctors who couldn't make it in the real world." Did you write that in your book, doctor?
DR. BADEN: Yes. And that reminds me. If that's being self-critical, I'm entering a field that is poorly thought of by other physicians.
MR. KELBERG: Doctor--
DR. BADEN: Absolutely.
MR. KELBERG: --is that critical of your performance of an autopsy?
MR. SHAPIRO: Your Honor--
THE COURT: That's argumentative. Sustained.
MR. KELBERG: Well, doctor--
MR. SHAPIRO: Your Honor, may we approach on this?
THE COURT: No, but let's wind this up.
MR. KELBERG: Doctor, do you still like the press?
DR. BADEN: I think the press has a duty to inform the public. I think that it's a siren's call that--for the forensic pathologist because it can only lead to trouble for the forensic pathologist.
MR. KELBERG: Doctor, my question though was, do you still like the press?
MR. SHAPIRO: Objection. Irrelevant.
THE COURT: Overruled.
DR. BADEN: Not in the sense that you read from it. I think I have the highest regard for the press in the job that the press attempts to do, but I think that the medical examiner has to be very wary of the press and what's in the long run.
THE COURT: Let's move on.
MR. KELBERG: Doctor, have you appeared oh any television program since you've been retained in the Simpson defense to discuss this case?
DR. BADEN: As I recall, I--I came to Los Angeles on the--June 16th, and I did appear on a number of television programs immediately thereafter. But on June 22nd, after going to the Coroner's office and being finally allowed access to the various materials, I stopped talking, to having any contact with the press as I recall.
MR. KELBERG: Doctor--
DR. BADEN: There may have been one time after that that I spoke to somebody.
MR. KELBERG: Did you appear, for example, on June 18th, 1994 on a CNN program, Newsmaker Saturday?
DR. BADEN: I appeared on programs, yes, until June 22nd, the idea being to try and get--
MR. KELBERG: I'll move to strike as nonresponsive.
DR. BADEN: Okay. Yeah, I did. I don't know about that, but I did appear in the press between the 17th and the 22nd.
MR. KELBERG: And did you as part of that interview say that your job as part of the forensic team is to assist in identifying evidence, collect evidence, document it and interpret it in the light of to make a judgment as to whether or not he, meaning Mr. Simpson, is guilty or not of the crime and whether there's mental reasons that comes long after the initial investigation as to whether he's being falsely accused? Did you say that, sir?
DR. BADEN: I don't recall that, but--I don't recall that. I mean, I don't think so. I don't think so.
MR. KELBERG: Would you like to see it?
DR. BADEN: No. I'm sure I said something like that. My role was to identify whatever--
MR. KELBERG: I'll move to strike as nonresponsive.
THE COURT: All right. We're going to take our recess at this point. All right. Ladies and gentlemen, we're going to take our mid-afternoon recess. Please remember all my admonitions to you. And we'll be in recess for 15 minutes. Doctor, you may step down.
(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 jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you very much, ladies and gentlemen. Please be seated. The record should reflect we've been rejoined by all the members of our jury panel. Dr. Michael Baden is on the witness stand undergoing cross-examination by Mr. Kelberg. Mr. Kelberg, you may continue.
MR. KELBERG: Thank you, your Honor. And good afternoon again, ladies and gentlemen.
THE JURY: Good afternoon.
MR. KELBERG: And to you, doctor. Doctor, I don't believe you gave on direct examination whether or not you are presently employed full or part-time with any New York State police agency. You did not make any mention of that, did you, sir?
DR. BADEN: I don't think I was asked that.
MR. KELBERG: Okay. Are you in fact a part-time employee of the New York State police?
DR. BADEN: Yes.
MR. KELBERG: And, in fact, what is that part-time employment, sir?
DR. BADEN: I'm co-director of the forensic sciences unit of the New York State police. That's a half-time position.
MR. KELBERG: In fact, that obligates you to give them a minimum of 20 hours a week, correct?
DR. BADEN: A minimum of 20 hours, but I'm on call seven days a week, 24 hours a day or I have to provide coverage.
MR. KELBERG: How many forensic pathologists are associated with that New York State police unit of which you say you are the director?
DR. BADEN: I'm the co-director. Dr. Lowell Levine, the forensic dentist, is the other co-director, and we split one position. There are about eight forensic pathologists who are on our--associated with our unit.
MR. KELBERG: Are there any which are--who are full-time employees?
DR. BADEN: No. No.
MR. KELBERG: Is one of the people associated with that Dr. Wolf?
DR. BADEN: No.
MR. KELBERG: Is Dr. Wolf--Dr. Wolf is not associated with the unit of which you are a co-director?
DR. BADEN: That's correct.
MR. KELBERG: Is Dr. Wolf employed at all by the Albany State police?
DR. BADEN: Dr. Wolf is--has been director of anatomic pathology at Albany medical center and is a forensic pathologist to Albany county and to about 20 other counties in upstate New York, about 63 counties in New York state, and she covers a great number of them.
MR. KELBERG: How long has Dr. Wolf been a board-certified forensic pathologist?
MR. SHAPIRO: I'm going to object, your Honor. It's beyond the scope.
THE COURT: Sustained.
MR. KELBERG: Your Honor, may I be heard on this?
THE COURT: Sustained.
MR. KELBERG: Dr. Baden, did you bring Dr. Wolf into this case?
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. KELBERG: Dr. Baden, did you bring Dr. Wolf into the Boggs, Hanson, Hawkins case for the trials for the last two defendants?
MR. SHAPIRO: Objection. Irrelevancy.
THE COURT: Sustained.
MR. KELBERG: Dr. Baden, is Dr. Wolf going to be the co-editor of this book that you say you're in the process of preparing?
DR. BADEN: She and I--she and I are working on a textbook of forensic medicine, yes.
MR. KELBERG: And in fact, who, if anyone, is writing the chapter on sharp force injuries?
DR. BADEN: I will.
MR. KELBERG: And has that been done yet, sir?
DR. BADEN: No. Not completed.
MR. KELBERG: Are you going to use this case as an example for that chapter?
DR. BADEN: I don't know, Dr.--Mr. Kelberg. I doubt it. I wouldn't use any case that can be identified.
MR. KELBERG: Doctor, is it usually the case that with recognized forensic pathology text or any other field of medical text, that the editors are usually physicians who have vast experience in the area the textbook is covering?
DR. BADEN: Not necessarily. There are some--many text that are written by people who have little experience. That's why we don't have too many good text about.
MR. KELBERG: And therefore, let me ask you again, how long has Dr. Wolf been board certified in forensic pathology?
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. KELBERG: Doctor, you said you've done personally over 20,000 autopsies; is that correct?
DR. BADEN: Yes.
MR. KELBERG: And, in fact, the overwhelming bulk of those autopsies were done when you were still with the New York medical examiner's office; isn't that correct?
DR. BADEN: That's correct, yes.
MR. KELBERG: And that was a situation that you terminated 10 years ago; isn't that correct?
DR. BADEN: I left the New York City medical examiner's office in 1985, yes.
MR. KELBERG: And, sir, of those 20,000 autopsies that you--or over 20,000 that you've personally performed, how many of them were multiple murder cases arising out of a single incident?
MR. SHAPIRO: Objection. I don't understand the form of the question.
THE COURT: Overruled.
DR. BADEN: I'd say a few hundred. I mean, we have up to--we had single incident with 15 persons killed and down to two. But a few hundred I would imagine.
MR. KELBERG: How many of those involved sharp force injuries as the cause of death?
DR. BADEN: I don't know. I would imagine a good percentage of them, half maybe.
MR. KELBERG: Doctor--
DR. BADEN: Or probably gunshot wounds would be a little more than half.
MR. KELBERG: Gunshot wounds would be more--
DR. BADEN: Probably more than half.
THE COURT: Gentlemen.
MR. KELBERG: Gunshot wounds would be more than half of those multiple murder cases arising out of a single incident?
DR. BADEN: I would guess, yes. That would be my opinion as I sit here. I have never accumulated the cases in that manner.
MR. KELBERG: Now, doctor, if you do roughly a thousand autopsies a year--and that would be what would be required from 1965 to 1985 to get 20,000, right?
DR. BADEN: Umm, it would be starting in 1960--1955 actually, but most of them would have been done between `65--from about `63.
MR. KELBERG: Starting in 1955, doctor?
DR. BADEN: Yes. As a medical--I started as a medical student to do autopsies as a volunteer. However, I didn't do that many until `62, `63 when I worked at an official job on weekends and holidays and vacation time.
MR. KELBERG: You wouldn't be allowed to do criminal homicide autopsies when you were starting medical school, would you?
DR. BADEN: Not in medical school, no. Most of these autopsies would be in noncriminal cases.
MR. KELBERG: Now, doctor, roughly doing a thousand autopsies a year for 20 years would be accurate?
DR. BADEN: A little less than that, right. That is approximately. Approximately.
MR. KELBERG: And would it be accurate to say that you took perhaps usually two weeks of vacation a year?
DR. BADEN: In my early days, I rarely took vacation, but maybe two weeks, yeah.
MR. KELBERG: So if you worked 50 weeks a year doing roughly a thousand autopsies a year, you are doing roughly 20 autopsies a week?
DR. BADEN: That's correct.
MR. KELBERG: Personally doing?
DR. BADEN: That's correct.
MR. KELBERG: And you said you supervised over 50,000 autopsies during the same period; isn't that correct?
DR. BADEN: Umm, I got to supervise more as I rose up--I became deputy chief, but the supervision came a little later.
MR. KELBERG: All right. If we just took for average purposes that 50,000 over 20 years, would be roughly supervising 2500 autopsies a year?
DR. BADEN: Well, yeah. That easily, yes.
MR. KELBERG: And again, 50 weeks. So you're looking at another 50 autopsies that you're supervising, correct?
DR. BADEN: That's correct. Not that I'm doing. That I'm supervising.
MR. KELBERG: You're doing 20 and supervising 50?
DR. BADEN: Yeah.
MR. KELBERG: And that means you're doing four autopsies a day roughly working a five-day week?
DR. BADEN: It worked out about two or three during the week and about five or 10 on weekend days. It varied.
MR. KELBERG: And, doctor, you have to prepare reports for each autopsy you do?
DR. BADEN: Yes.
MR. KELBERG: And you have to testify in court sometimes?
DR. BADEN: Yes.
MR. KELBERG: And sometimes you have to have your deposition taken if it's a civil case?
DR. BADEN: Rarely we--rarely were there depositions. In New York state, it wasn't at that time a deposition type case. There weren't too many civil litigations that we were involved in.
MR. KELBERG: Doctor, of those 20 a week, how many of them were criminal homicide autopsies?
DR. BADEN: Umm, of 8,000 cases, about 1800 autopsies. Something like 20 percent, 15 percent.
MR. KELBERG: And how long would a criminal homicide autopsy take vis-à-vis the kinds that were not arising out of criminal homicide situations?
DR. BADEN: It varies. It varied.
MR. KELBERG: Some of them take less than a half an hour?
DR. BADEN: Not too many--not the homicide cases.
MR. KELBERG: No. Other than the criminal homicide. I'm talking about the noncriminal homicide.
DR. BADEN: An hour, two hours maybe.
MR. KELBERG: And some of these, did they not even involve dissection of the body at all?
DR. BADEN: The autopsies involved dissection of the bodies. There were many other cases that I would issue death certificates without doing an autopsy. Those are what were called sign-out cases where an autopsy wasn't needed. So we might have in the city of New York at that time something like 30,000 deaths reported to the medical examiner's office each year out of 60-, 70,000 deaths, and of those, about 8,000 would be autopsied. The rest would not be autopsied.
MR. KELBERG: Doctor, is there an organization of forensic pathologists nationwide that issues recommended guidelines as to the number of autopsies which should be done by a particular doctor on a particular day?
DR. BADEN: There is--there are guidelines set by national organization, yes.
MR. KELBERG: And isn't the guideline for the number of autopsies to be done no more than two a day?
DR. BADEN: I believe now the guideline might be two a day and no more than 250 a year per doctor, but that's of recent vintage. That's in the past 10 or 15 years. In 1960's especially, we just worked morning to night to get the work done, and there were very few doctors in the medical examiner's office at that time.
MR. KELBERG: Doctor, your work with the New York state police pays you approximately 39- to $40,000 a year?
DR. BADEN: You're very good. Yes.
MR. KELBERG: Well, you've testified about this in the past, haven't you, sir?
DR. BADEN: If I've been asked that question, I've given that answer.
MR. KELBERG: And that's an accurate answer, isn't it?
DR. BADEN: Yes.
MR. KELBERG: And, sir, your private practice--let's set aside the Simpson case. Are you still taking on other cases besides the Simpson case since you became involved in the Simpson case?
DR. BADEN: Not very much since my involvement with the Simpson matter, this matter. But in general, I do other cases and I will once this is finished.
MR. KELBERG: And in fact, is it true, sir, that three to four times of your annual income is made from privately retained cases rather than the 39- or $40,000 you make from New York?
DR. BADEN: That's correct.
MR. KELBERG: And in fact, you spend more than half of your time working on private retained cases rather than for the New York state police cases; isn't that correct?
DR. BADEN: I would think that's fair. That is counting the hours per week.
MR. KELBERG: Now, doctor, how many cases have you done where you've been privately retained--and by the way, privately retained insurance companies have retained your services?
DR. BADEN: Yes.
MR. KELBERG: And has that ever involved situations where the insurance company believes the decedent committed suicide and doesn't want to pay on the life insurance policy because there's a suicide exclusion?
DR. BADEN: It's not quite put that way. If the initial review by the insurance policy by the doctor on staff is that the cause of death is at issue or the question of suicide, which might exclude payment, then they would call myself or another forensic pathologist and ask us to review the case and ask us our opinion. If my opinion was that the person committed suicide, they act one way. If my opinion was the person didn't commit suicide, they might act in another way.
MR. KELBERG: Now, you've also been retained by attorneys representing plaintiffs in civil actions?
DR. BADEN: Yes, sir.
MR. KELBERG: And as you've said, by Defense attorneys in criminal matters?
DR. BADEN: Yes, sir.
MR. KELBERG: And by some Prosecutors as well?
DR. BADEN: Yes.
MR. KELBERG: And on these privately retained cases, you are paid; is that correct?
DR. BADEN: That's the intent. It doesn't always work that way, but I submit a bill, yes.
MR. KELBERG: Now, doctor, of those times that you've been retained privately, how many involved cases where you did not personally perform the autopsy?
DR. BADEN: Oh, in criminal or civil matters?
MR. KELBERG: Altogether.
DR. BADEN: Well, commonly in insurance matters, I'm asked to review other people's work and the results and in I would say majority of my private practice, I review cases other people have done, but I don't do an autopsy.
MR. KELBERG: My question though, sir, is, approximately how many cases have you been retained on in your career for which you're paid for which you did not personally do the autopsy?
DR. BADEN: Lots. I mean, we're going 30--back 30, 35 years. Many, many cases. Probably the majority of them. I'm just saying the majority of cases I'm retained on, I don't do the autopsy.
MR. KELBERG: And in those situations, do you review any autopsy report that's been issued by the pathologist who performed the autopsy?
DR. BADEN: Yes.
MR. KELBERG: Do you review photographs that may be in existence, whether police photographs or Coroner office photographs?
DR. BADEN: Yes.
MR. KELBERG: Do you review tissue samples if they are available?
DR. BADEN: Yes.
MR. KELBERG: And, doctor, when you do this, do you ever tell the party retaining you that you can't accept this work because since you didn't do the autopsy, it would be pure speculation for you to review these materials and render opinions?
DR. BADEN: No.
MR. KELBERG: And in fact, have you ever turned money back after you've done a review to tell the party that retains you, "I didn't do the autopsy. Whatever I have in the way of an opinion from these materials would be pure speculation. Here's your money back"? Have you ever done anything like that?
DR. BADEN: That's not my opinion, no. I--if I agree to review a case, I'll review the case, and I'll do the best I can with the information available.
MR. KELBERG: And in fact, you do render opinions in these retained cases based upon review of whatever was available even though you did not do the autopsy?
DR. BADEN: Certainly.
MR. KELBERG: Isn't that correct?
DR. BADEN: Absolutely.
MR. KELBERG: And in fact, in the Boggs case that Mr. MacKenzie retained you on, you didn't do the autopsy, did you?
DR. BADEN: No, I did not.
MR. KELBERG: And, in fact, you did review photographs, right?
DR. BADEN: That's true, yes.
MR. KELBERG: And you did review an autopsy report by Dr. Sy, S-Y, Evancia Sy?
DR. BADEN: Yes.
MR. KELBERG: And some of the photographs were taken of the body at the office of Dr. Boggs, right?
DR. BADEN: Yes. That's correct.
MR. KELBERG: Now, doctor, you said this morning that you are critical of any forensic pathologist who would get on the witness stand and testify to possibilities. Isn't that what you said this morning?
DR. BADEN: I think what I said this morning was in the context of Mr. Shapiro's question where all the opinions or much of the opinions of--on the direct, your witness, Dr. Lakshmanan, were couched in possibilities.
MR. KELBERG: Sir, in fact, the questions were couched as follows: "Doctor, is a set of circumstances consistent with certain findings?" Isn't that how the questions were couched, doctor?
DR. BADEN: Many of them were, but that's possible. "Consistent with" is difficult to interpret because it could be consistent with 1 percent or it could be consistent with 95 percent, and that's--that's a delicate area to explain to the trier of the facts as to what my opinion is. If my opinion is it's consistent with 1 percent that so and so happened, the jury should not give it as much weight as if it were consistent with 95 percent.
MR. KELBERG: So, doctor, is it your use of the term "Possibility" to relate to doctors who talk in terms of "Consistent with" or "Inconsistent with" when questions are posed?
DR. BADEN: What I said is that the witness, me in the blue chair, Dr. Lakshmanan in the blue chair here, can only answer the questions that the lawyers put to us, and I think we try to answer the questions the best we can. But if all we say is it's possible that it happened by a bushy-haired stranger whose right-handed from behind, yes, but it's also equally consistent with a bald-headed midget from the front who is left-handed. It's all--it depends on what kind of information I want to give across as an expert, but I don't have control over your questions or Mr. Shapiro's questions.
MR. KELBERG: Well, doctor, if you feel incapable of rendering an opinion because you do not hold an opinion to a reasonable medical certainty, then you can say that as a response to any hypothetical that's posed to you by any lawyer; can you not?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Overruled.
DR. BADEN: In most states, I could do that.
MR. KELBERG: I move to strike as not--
DR. BADEN: But not here.
THE COURT: Overruled. The answer stands.
MR. KELBERG: You cannot do that here?
DR. BADEN: No, no. I think how--my impression is from the testimony that questions are permissible here that wouldn't be permissible in other states.
MR. KELBERG: Well, doctor, my question though to you is, do you feel that you as the witness, as the expert in response to a hypothetical question can say, "I can't answer that. I don't have enough information. It would be speculation. I don't talk in terms of possibilities. I talk only in terms of reasonable medical certainty"? Can you do that, sir?
DR. BADEN: Surely I can. But you--that's a compound question. Certainly if I don't have enough information, I can't answer. I'll say I don't have enough information, that's beyond my expertise. But I think that I--I'm at the--you know, at the--I have to answer the questions that are put to me and as best I can.
MR. KELBERG: Well, and "As best you can" could involve answering, "I can't answer that question because I can't answer to a reasonable medical certainty." That is an answer you could give, isn't it?
DR. BADEN: I could give that, yes.
MR. KELBERG: Now, sir, didn't you in the course of your direct examination at least 10 or 12 times offer answers that included the word "Possibility" when asked hypothetical questions?
DR. BADEN: I don't think so. It's poss--that's possible, but I don't think so. If I did, I try to couch it in the sense that I'm giving it with a different degree of certainty than if I answered to a reasonable degree of medical certainty so that the jury can distinguish what I'm trying to say.
MR. KELBERG: Well, for example, the shoe, remember the shoe photo that was shown?
DR. BADEN: Yes.
MR. KELBERG: The cut in the front of the shoe? You said it was not proof of it, that Mr. Goldman had kicked the knife, right?
DR. BADEN: That's right.
MR. KELBERG: Not proof of it?
DR. BADEN: But it's my opinion--
MR. KELBERG: Excuse me. You said cut on the top was indicative of kicking.
DR. BADEN: Yeah.
MR. KELBERG: Isn't that correct, sir?
MR. SHAPIRO: Your Honor--
THE COURT: Wait, wait, wait. He didn't finish answering--asking the question. Let him finish. Let him finish answering the question as well.
MR. KELBERG: Thank you, your Honor. I will.
THE COURT: All right. We will be here through tomorrow if we keep up like this. Let's move along, all right?
MR. KELBERG: I'm trying to.
THE COURT: Let's get past the semantics.
DR. BADEN: By "Indicative," I meant more likely than not, more than 50 percent.
MR. KELBERG: What's your definition of "To a reasonable medical certainty," sir?
DR. BADEN: More than 95 percent.
MR. KELBERG: So according to your criticism that you gave this morning, you should not be offering an opinion that you cannot say to 95 percent certainty. Isn't that your view?
DR. BADEN: Depends on the question. It depends what the question is and what the information that's being elicited.
MR. KELBERG: Well, sir, did you ever qualify any of the answers you gave by saying this is not to a reasonable medical certainty, this is only something I feel 50 percent plus one, a sense of confidence in?
DR. BADEN: I don't think I used those words.
MR. KELBERG: Well, did you qualify any of them?
DR. BADEN: At times, I said it got monotonous to a reasonable degree of medical certainty when I gave answers.
MR. KELBERG: Sir, have you ever heard the term "Beyond a reasonable degree of medical certainty"?
DR. BADEN: Yes.
MR. KELBERG: That's a term you've used, isn't it?
DR. BADEN: Certainly.
MR. KELBERG: Can you tell me the source for your knowledge of that term?
DR. BADEN: It's a term that's used in New York state courts. It's one of the--I'd have to defer to Mr. Scheck on that. It's a lawyer term that we're asked not uncommonly in New York.
MR. KELBERG: Well, as a forensic pathologist, doctor, aren't you trained in the relationships between the law and pathology?
DR. BADEN: Oh, yes. But we're not trained in the law as such. I'm not a lawyer. I don't deem to answer legal questions. I don't even know the difference between a hearing and a trial as you pointed out. But what I'd say is, I--we know knowledge that's applicable to the law.
MR. KELBERG: Doctor, did you write in your report to Mr. MacKenzie on the death of Ellis Green, among other things? "It is further my opinion beyond a reasonable degree of medical certainty that the medical autopsy in toxicology findings presently available are entirely consistent with the cause of death being asphyxia by suffocation," and then: "Mr. Green's alcohol impaired condition at the time of death made him vulnerable and susceptible to die from such a cause." Did you write that in your report?
DR. BADEN: I will take you at your word. Yes, I--it sounds right.
MR. KELBERG: Sir, what does "Beyond a reasonable degree of medical certainty" mean to you?
DR. BADEN: 95--beyond 95 percent certainty. The same as to a reasonable degree of medical certainty. I'm not in a syntax mode there.
MR. KELBERG: In your mind, "To a reasonable degree of medical certainty" and "Beyond a medical degree of medical certainty" are synonymous terms?
DR. BADEN: They're used synonymously in New York courts.
MR. KELBERG: Doctor, did you prepare a report for this case?
DR. BADEN: No.
MR. KELBERG: In the cases where you were retained by our office, the Belushi case and the Boggs case, you either prepared a report or signed an affidavit spelling out your findings; isn't that correct?
DR. BADEN: I did prepare a report as you indicate in the Boggs case and I would be guided by whatever you said about Mr. Belushi.
MR. KELBERG: May I approach, your Honor?
DR. BADEN: Thank you.
THE COURT: Have you shown that to Mr. Shapiro?
MR. SHAPIRO: No, he has not, your Honor.
THE COURT: All right.
(Brief pause.)
MR. KELBERG: Doctor, were you asked to sign an affidavit in order to extradite Kathy Evelyn Smith from Canada?
DR. BADEN: Yes. Yes, I remember that now.
MR. KELBERG: And you read it thoroughly, in fact, made some notations on it, didn't you, before signing it?
DR. BADEN: It's 12 years ago. I assume so.
MR. KELBERG: Now, doctor, why haven't you prepared a report in this case of your findings?
DR. BADEN: Well, I wasn't asked to prepare a report. I was in constant conversations with Mr. Shapiro, but I was not asked to prepare a report. It's not usually my custom to prepare a report without being asked.
MR. KELBERG: And, doctor, is that because you don't want to give the opponent any advance notice of what your views may be to prepare for cross-examination?
DR. BADEN: No. That's not so. In fact, if you called me, Mr. Kelberg, I would have been glad to talk to you.
MR. KELBERG: Doctor--
DR. BADEN: As we once did before.
MR. KELBERG: We did, doctor, and that was arranged by the Defense attorney, wasn't it?
DR. BADEN: I believe so, yes.
MR. KELBERG: And then you had to cut short that conversation, didn't you, because you were tied up at a convention?
DR. BADEN: I don't remember. I don't remember.
MR. KELBERG: Well, in fact, I was not permitted to finish questioning you, that we had to put it off for another time and I was not permitted to follow up any questioning beyond the 20 minutes that I talked with you. Isn't that what happened in that case, sir?
DR. BADEN: I don't recall that at all, but I'm sure if you say so, I would think it's correct.
MR. KELBERG: Now, doctor, you examined Mr. Simpson's hands on June 17th; is that correct?
DR. BADEN: Yes, I did.
MR. KELBERG: And, sir, did you document carefully each and every finding that you made in that examination?
DR. BADEN: I made notes, yes. I made notes.
MR. KELBERG: And you've told us I think on direct how important it is for a medical examiner to document carefully all the findings, correct?
DR. BADEN: Oh, yes, with notes and photographs, and we took photographs too, yes.
MR. KELBERG: And, doctor, it doesn't matter whether you're the medical examiner performing the autopsy or you're a privately retained expert such as you are in this case. The need to carefully document exists in either situation, right?
DR. BADEN: That's fair, yes.
MR. KELBERG: Now, doctor, do you have your notes with you?
DR. BADEN: I think I have a copy of notes.
(Brief pause.)
DR. BADEN: Yes, sir.
MR. KELBERG: You do? Do you have your note or notes of the examination of Mr. Simpson's hand or hands on June 17th, 1994?
DR. BADEN: Yes.
MR. KELBERG: Could you produce that for me, please?
DR. BADEN: I have--there's a copy I think that you have, but also, it was documented with multiple photographs.
MR. KELBERG: Your Honor, may this document be marked as People's next in order, one page?
THE COURT: Why don't you show it to--
MR. KELBERG: Be glad to.
THE COURT: --Mr. Shapiro.
THE CLERK: 580.
THE COURT: 580. I'm going to have to get a clerk who talks louder.
(Peo's 580 for id = one-page document)
MR. SHAPIRO: Can we just have one moment, your Honor?
(Brief pause.)
MR. SHAPIRO: Thank you very much.
MR. KELBERG: Exhibit 580, your Honor?
THE COURT: 580.
MR. KELBERG: Then may I approach?
THE COURT: You may.
MR. KELBERG: Now, doctor, this is the--this exhibit is the only documentation in a written form of your observations of both the left and right hands of Mr. Simpson on June 17th; is that correct?
DR. BADEN: The only written material, yes.
MR. KELBERG: Mr. Fairtlough, may I ask you, please, to put this on the elmo.
MR. KELBERG: Now, during--we're looking at the upper portion, and, in fact, what we're looking at now is your written notation concerning the left hand examination; is that correct?
DR. BADEN: Yes. I can't see it very clearly and--
MR. KELBERG: Let me give you--I think I might have another clean copy of that.
DR. BADEN: Thank you.
MR. KELBERG: I'm sorry. I'm not sure that I can find it that quickly.
THE COURT: Why don't you give a copy to Mrs. Robertson. I'll have one of the law clerks make a quick photocopy.
MR. KELBERG: Let me give the doctor mine. It may be marked up a little bit, but it will be a little easier to tell--
THE COURT: Whose is whose?
MR. KELBERG: Whose is whose.
DR. BADEN: Thank you.
MR. KELBERG: Now, doctor, you only reflect in this notation the left hand; is that correct? You make no reference with respect to the condition of the right hand?
DR. BADEN: That's correct.
MR. KELBERG: And, doctor, did you follow the testimony of Dr. Robert Huizenga when he was called by the Defense as a witness earlier in this trial?
DR. BADEN: Uh, some of it. Not all of it.
MR. KELBERG: Have you read his testimony?
DR. BADEN: No.
MR. KELBERG: Have you heard--
DR. BADEN: He was present at the time.
MR. KELBERG: Have you heard his testimony regarding his examination of Mr. Simpson's left and right hands on June 15th and then his presence when you were examining the hand--hands on June 17th? Did you hear his testimony?
DR. BADEN: I recall testimony that he gave relative to what he saw in his office on June 15th.
MR. KELBERG: Now, doctor, do you recall hearing him say in response to a question I asked that he found on the left hand three or four cuts, depending on how you want to define the cuts, because there's one that had an interruption which, if it was all part of one process, would be one cut rather than two? Do you recall that?
DR. BADEN: I believe so, yes.
MR. KELBERG: Do you recall him also saying that he observed seven abrasions to the left hand?
DR. BADEN: I recall some of that type of testimony. I'm not specific that there were additional injuries that he saw that I had not seen.
MR. KELBERG: Doctor, let me just briefly refer you to some testimony that was given by Dr. Huizenga, referring to page 37267 of the transcript, line 18 through 20. "How many separate abrasions did you identify ?"
THE COURT: Just a second. Mr. Blasier, do you have that available?
MR. BLASIER: I do.
THE COURT: All right. Mr. Blasier has it available.
MR. KELBERG: "Question: How many separate abrasions did--"
MR. SHAPIRO: Can we just have a moment?
THE COURT: Hold on, hold on, hold on.
MR. BLASIER: What line, please?
MR. KELBERG: Starting on line 18.
MR. SHAPIRO: Your Honor, there will be an objection to this line of questioning. It's beyond the scope of direct examination.
THE COURT: Overruled.
MR. KELBERG: Doctor, did you hear this testimony from Dr. Huizenga? "Question: How many separate abrasions did you identify? "Answer: Seven. "Question: And did you also count the number of cuts to his left hand? "Answer: Yes, I did. "Question: How many did you identify? "Answer: Three cuts, one of which on the fourth finger had both an A and B portion. "Question: That's the right--" I'm sorry. "That's the ring finger, correct? "Answer: Correct." Did you hear that testimony before, doctor?
DR. BADEN: I think so.
MR. KELBERG: Doctor, how many abrasions did you identify in this note that you made of your examination of Mr. Simpson's left hand on June 17th?
DR. BADEN: I did not see those abrasions on the 17th, which is two days later, and I did photograph Mr. Simpson's hands with Dr. Lee and I don't--to document the injuries, and I don't recall there being abrasions at that time.
MR. KELBERG: May I approach, your Honor?
DR. BADEN: Which is two days later. So they could have healed.
THE COURT: Yes.
MR. SHAPIRO: Your Honor, may I see what he's going to show?
MR. KELBERG: These are the exhibits that have previously been marked.
MR. SHAPIRO: Are there different rules for this, your Honor?
THE COURT: These matters have already been marked. Do you need to see these? Let's bring them over--
MR. SHAPIRO: I would like to see what he's referring to.
THE COURT: All right.
MR. SHAPIRO: As a courtesy.
THE COURT: That is a common courtesy. You're right. Mr. Kelberg.
MR. KELBERG: I'll be glad to. I'm going to show the doctor in the 518 series.
THE COURT: All right. Mr. Shapiro, do you want to approach and take a look at these as well, the ones that Dr. Baden has in his possession at this moment?
MR. SHAPIRO: Yes, your Honor. Can I look at these first?
THE COURT: Take your pick. (Brief pause.)
MR. SHAPIRO: Thank you very much.
THE COURT: All right. Proceed.
MR. KELBERG: Thank you, your Honor.
MR. KELBERG: Doctor, let me show you if I could, please, first exhibit 518-E. Have you seen that photograph before?
THE COURT: Doctor, you can take it out of the holder if you want.
DR. BADEN: Thank you, sir. Umm, I believe I have, but I'm not sure what day it was taken.
MR. KELBERG: Let me show you 518-C. Have you seen that photograph before?
DR. BADEN: Yes. But, again, I--this wasn't taken by me.
MR. KELBERG: Doctor, do you see in this 518-C that there's a blue ruler?
DR. BADEN: Yes. It's--I believe it's supposed to be a gray ruler that turns out blue in this.
MR. KELBERG: Doctor, did Dr. Lee or you in the course of having photographs taken have a ruler placed in the photographs?
DR. BADEN: Umm, in some of the photographs, umm, we have rulers, yes.
MR. KELBERG: And if Dr. Huizenga did not use a ruler when he was having photographs taken at his office on the 15th, would that indicate to you that if the photo has a ruler in it, that it is a photo taken on the 17th?
DR. BADEN: I'm not sure. I'm not sure. We only have 17 percent gray rulers. So that doesn't look--it has the form of a ruler that Dr. Lee or I would have used, but not necessarily--but not the right color.
MR. KELBERG: I'm going to ask Mr. Fairtlough to put 518-C on the elmo.
MR. SHAPIRO: Objection. No foundation.
THE COURT: He said he's seen the photo, counsel.
MR. KELBERG: Doctor, I want to invite your attention--if Mr. Fairtlough can zoom in on the left thumb area, please. Doctor, do you see the area that is highlighted now by the close-up of this photograph?
DR. BADEN: Yes.
MR. KELBERG: Do you document that--what appears to be an injury below the thumbnail?
DR. BADEN: I don't recall seeing that. Uh, and I--I do not believe this is a photograph taken on the 17th.
MR. KELBERG: Doctor, then if it was taken on the 15th, your testimony is that that injury--you do believe that that's an injury; do you not?
DR. BADEN: Yes.
MR. KELBERG: Would you call it an abrasion?
DR. BADEN: That's fair, yes.
MR. KELBERG: Is it your testimony that it healed between its state as seen in this photo, if the photo was taken on June 15th, and when you saw Mr. Simpson's hand on the 17th?
DR. BADEN: Yes.
MR. SHAPIRO: Objection. Calls for speculation.
DR. BADEN: Oh, sorry.
THE COURT: Overruled.
MR. KELBERG: Now, doctor, is it your testimony then that you saw none of the seven abrasions that Dr. Huizenga said were present on the left hand along with the cuts?
DR. BADEN: I did not--I do not recall seeing any of those abrasions.
MR. KELBERG: And you don't document any of them on your note, do you, sir?
DR. BADEN: No. I don't have it in my notes and I would have to check photographs taken on the 17th that were further documentation.
(Brief pause.)
MR. KELBERG: And now let me ask that 518-E be placed on the elmo and ask Mr. Fairtlough--
MR. KELBERG: Looking now more below the fingers, back of the hand--
MR. SHAPIRO: Your Honor, I don't believe there's a foundation for this photograph.
MR. KELBERG: There was a stipulation that these photos were taken on the 15th and the 17th. Defense counsel offered it and I accepted it.
THE COURT: Correct.
MR. SHAPIRO: Yes, but that's not a foundation that this doctor has seen these on the 17th.
THE COURT: Ask him.
MR. KELBERG: Doctor, what we are looking at on this photograph, did you see this area that's highlighted now when you examined Mr. Simpson on the 17th?
DR. BADEN: No.
MR. KELBERG: And do those appear to be abrasions?
MR. SHAPIRO: Well, your Honor, no foundation--
THE COURT: Overruled.
MR. SHAPIRO: --to ask the question.
THE COURT: Overruled.
DR. BADEN: May I see the photograph? It's a little blurry here.
MR. KELBERG: Sure.
MR. KELBERG: May I take it, Mr. Fairtlough?
DR. BADEN: Yeah. There appears to be a healing--some kind of healing mark that you were referring to--
MR. KELBERG: And if--
DR. BADEN: --on the back of the hand. It's sort of--yeah. I'm sorry.
MR. KELBERG: And if Dr. Huizenga referred to it as an abrasion, would you trust his judgment on that?
DR. BADEN: Umm, yeah. Yes.
MR. KELBERG: Now, did you see abrasions along the left wrist of Mr. Simpson when you examined him on the 17th?
DR. BADEN: I would have to look at the photographs taken on the 17th because I have a notation in the sheet that you gave me and that you retrieved of some--something on the wrist, in the area of the wrist and I just don't recall.
MR. KELBERG: First of all, doctor, let me just show you one of the Defense photographs, which is 1249, and ask you if that appears to be a photograph taken on the 17th when you were present or at some other time and location.
DR. BADEN: It appears that this photograph, the top that you're showing to me, 1249, was taken at the time that I was examining Mr. Simpson on the 17th.
(Brief pause.)
MR. KELBERG: Your Honor, I'm looking for 518-B. I don't know if--Miss Clark might have it.
MR. KELBERG: Let me show you what's 516. I'm sorry. It's 516. Does that also appear to be a photograph that was taken on the 17th, doctor?
DR. BADEN: I think so. I think so from the surroundings.
MR. KELBERG: Now, doctor, do you see on the lateral side of the wrist what would be the ulnar side I believe, do you see what appear--
DR. BADEN: May I see the notes that you took back? That will help me.
MR. KELBERG: Sure.
THE COURT: Let's bring back 580.
MR. KELBERG: And I'm giving the doctor back my copy because I think we still have it for the elmo. I'd like to put it back on the elmo, please.
DR. BADEN: What I refer to in my notes is, on the medial aspect of the wrist--and when I say "Medial aspect," it's the ul--it's the pinky side of the wrist, the side into the body in the anton position. I have here a half inch in front of the wrist and 3/8 inch back of the wrist, would be the--what appear to be abrasions that are shown on this photograph that you showed me.
MR. KELBERG: You don't list them as abrasions, do you, doctor?
DR. BADEN: Umm, it says, "Wrist, medial aspect, half inch distal to wrist, 3/8 inch proximal to wrist," and I will have the original of this waiting for me at the hotel when I come back to see if anything was left out. But in my opinion, I was referring to the abrasions.
MR. KELBERG: My question is, sir, did you use the word "Abrasion"--
DR. BADEN: It's not here on this Xerox copy.
MR. KELBERG: Now, sir, did you appear on NBC Dateline on June 23rd, 1994, regarding your observations of that hand of Mr. Simpson's, the left hand?
MR. SHAPIRO: Your Honor, if there's going to be a document here, can we have an opportunity to look at it, please?
THE COURT: Yes.
(Brief pause.)
THE COURT: Is this a Burrell's transcript?
MR. KELBERG: I'm afraid I'm not familiar with the company, your Honor. Through our media relations, I've been provided with this.
MR. SHAPIRO: Your Honor, it's going to take me some time. This appears to be a whole segment.
THE COURT: What--are you just focusing on one particular portion?
MR. KELBERG: Absolutely. I showed Mr. Shapiro which area I was focusing on.
MR. SHAPIRO: Just to make sure it's in proper context, may I just have a few moments? I don't want to interrupt.
THE COURT: Sure. Take your time.
(Brief pause.)
MR. COCHRAN: Your Honor, may we approach?
THE COURT: Yes, with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. Mr. Kelberg--we're over at sidebar--what portion are you going after here?
MR. SHAPIRO: Page--
MR. KELBERG: Question--
MR. SHAPIRO: That's what we object to.
MR. KELBERG: Starting with, "You looked," and goes over to here (Indicating).
THE COURT: All right. I'll allow you to use just "Hours." I mean, "You were with O.J. on the 17th."
MR. KELBERG: Okay.
MR. SHAPIRO: Your Honor, here's one of the problems with this line of questioning. In fairness, Dr. Baden was not there on the 17th to conduct an autopsy examination or a full body examination. This was the time that we had been alerted by the police department that he was to surrender by 10:30 and was called at 8:30, and we had begun certain forms of testing, including forms of psychiatric and psychological testing, medical testing by Dr. Huizenga that he talked about and other examinations that had to be done, and they had to be done very, very quickly. And because of the time constraints, we were pressed for time. In order for me to put this in proper perspective, as Mr. Kelberg knows it to be, before the jury to show that this was not a time that this doctor had full rein, plenty of time to sit down and conduct this examination, I have to get into those areas. And so I might ask you under 352 to consider that this is going to open the door to that area, and I just want to alert the Prosecution to that.
MR. KELBERG: It doesn't open any door, your Honor. Counsel on direct brought out that he examined Mr. Simpson on the 17th. That's what I'm asking about and his findings.
THE COURT: All right. I think it is within the scope. So the objection is overruled. It's a prior inconsistent statement.
MR. SHAPIRO: May the doctor have time to look at that statement first? Under 356, there's other stuff in there also. It talks in part about this so-called struggle, the part where it says, "It is not consistent with any struggle. Are you aware of that?"
MR. KELBERG: I'm going to go through that.
MR. COCHRAN: There's more. Maybe it will save some time.
MR. KELBERG: No.
THE COURT: Okay.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Proceed.
MR. KELBERG: Dr. Baden, did you in fact appear on the NBC Dateline program on June 23rd, 1994 in which you were asked about your examination of Mr. Simpson's left hand?
MR. SHAPIRO: Your Honor, may he have an opportunity to review that transcript?
THE COURT: No. Mr. Kelberg is entitled to lay the foundation under 770 as he chooses. Proceed.
DR. BADEN: I don't specifically recall, but if you have that date, I would agree with it I guess.
MR. KELBERG: Doctor, on that program, were you asked by a reporter by the name of John Larson whether on the 17th of September, you looked at the cut hand of Mr. Simpson and did you give the following answer?
DR. BADEN: 17th of June?
MR. KELBERG: Yeah. Your examination was on the 17th.
DR. BADEN: Of June. You said September.
MR. KELBERG: Of June. I'm sorry if I misspoke. Your answer: "I looked at the injury. There was very whatever cuts. I think saying "Cuts" gives it a magnitude it doesn't have. They were tiny little marks on the body on the hands." Then the question from the reporter: "Could they have been the result of a struggle?" And your answer: "They could, may or may not be consistent with a struggle. Certainly it is not consistent with a lot of struggle. I mean, there's no other marks on the body." Did you give those answers to those questions asked of you by a reporter?
DR. BADEN: I do not have an independent recollection. But I would agree with what you say. I mean, I have no reason to say what you're reading to me isn't what I said.
MR. KELBERG: Sir, in that, you never mention any abrasions being seen, even the two that you indicate may be reflected by this lower entry on your form, correct?
MR. SHAPIRO: Your Honor, objection. That's argumentative. This is a cuts and paste interview.
THE COURT: Overruled.
MR. KELBERG: You may answer the question.
DR. BADEN: From what you read to me, I didn't say anything about abrasions, and I agree with you, I think that my mark, that wrist that's on the elmo refers to two abrasions, yes.
MR. KELBERG: Doctor, in your answer here, were you trying to minimize the significance of injuries that you had seen on Mr. Simpson's left hand on June 17th?
DR. BADEN: I don't think so.
MR. KELBERG: Well, in fact, sir, you testified that these were cuts, correct?
DR. BADEN: You mean--
MR. KELBERG: Here in trial, you testified they were cuts that you observed; isn't that correct?
DR. BADEN: Yes.
MR. KELBERG: You said on the interview, "I think saying cuts gives it the magnitude it doesn't have." Were they cuts or not, sir?
DR. BADEN: I think that they're two cuts--
MR. SHAPIRO: Your Honor, that misstates the evidence.
THE COURT: Overruled.
MR. SHAPIRO: May I be heard?
THE COURT: Overruled. Have a seat.
DR. BADEN: I think I called it laceration on the back of the third finger, not a cut, a laceration, and cuts on the inside of the two hands or the two fingers, but I would like to--if I might, could I see that in context, because I was responding to whatever the situation was at the time. I'm not there to give a full medical work-up to the media, but--
MR. KELBERG: Well, doctor, you weren't--
MR. SHAPIRO: Your Honor, may he see it? He's asked to see it.
THE COURT: Hold on.
MR. KELBERG: You were not obligated to talk to the media, were you, Dr. Baden?
DR. BADEN: That's correct. I'm not obligated to talk to the media.
MR. KELBERG: You could have told the reporter to go pound sand, that you've been retained by the Defense and it's a privileged communication between the client, Mr. Simpson, and an expert retained by the lawyer, Dr. Baden?
DR. BADEN: I could always refuse to talk to the media, certainly.
MR. KELBERG: But you didn't, did you?
DR. BADEN: I did not.
THE COURT: All right. Would you show Dr. Baden the transcript you're referring to, please?
MR. KELBERG: Sure. Sure.
THE COURT: Dr. Baden, feel free to take a moment and see if the context is appropriate.
DR. BADEN: Thank you, your Honor. Thank you very much.
(Brief pause.)
DR. BADEN: Yes. It's hard to get it in context because there's voice-overs and many different people talking, but I think what you quoted me saying is--sounds accurate.
MR. KELBERG: Now, sir, was it your opinion that those injuries could have been the result of a struggle between Mr. Simpson and another human being?
DR. BADEN: I think that's what I said and I would have to agree with it.
MR. KELBERG: Now, doctor, you also said in response to a question from Mr. Shapiro that the source of the cut on the middle finger of the left hand was more likely from glass; is that correct?
DR. BADEN: Yes.
MR. KELBERG: But in your opinion, sir, could it have been caused by a knife, a sharp-edged knife?
DR. BADEN: It could be, but it's--that's not my opinion, no. My opinion is, it could be, but very unlikely because a sharp knife would not cause as jagged a cut and--may I see the--what I said there, please, once again?
MR. KELBERG: See what you said to--
DR. BADEN: What you quoted, yeah, because I think I misspoke just a moment ago. What I said on the program was, they could, may or may not be consistent with a struggle. It is not consistent with a lot of struggle because there are no other marks on the body. So the only place I saw injury was on the hands. He had a lot of injury, a lot of old healed injuries on his body from previous--so could or couldn't be a struggle, but I can't exclude a struggle, but it didn't look like a significant struggle is what I was trying to convey and there were small cuts on the inside of the fingers.
MR. KELBERG: Were those cuts consistent with a sharp knife, sir?
DR. BADEN: Yes. Could be. The edge or tip of a sharp knife, I can't exclude that.
MR. KELBERG: Doctor, did you ask Mr. Simpson on the 17th when he received any of the injuries you identified in your examination?
MR. SHAPIRO: Objection.
THE COURT: Let me see counsel at the sidebar with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar.
MR. SHAPIRO: Your Honor, that objection will be withdrawn.
THE COURT: All right.
MR. KELBERG: Let me just point out for the record, your Honor, I'm not asking about any statement to the police. I'm asking solely about any question he asked him on the 17th.
THE COURT: All right. Phrase the question carefully.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel.
MR. KELBERG: Let me reask the question, doctor. Did you on the 17th of June ask Mr. Simpson when he received any of these injuries?
DR. BADEN: Yes, I believe I did.
MR. KELBERG: And what was his response on the 17th of June with respect to when he received any of the injuries?
DR. BADEN: His response was that he received cuts on his hand on the third finger on the knuckle in Chicago the--the 14th I guess, on June 14th, just before he returned to New York and that he may have cut himself on his fingers before he came to--he got on the airplane while getting his stuff together, but he didn't really know because he cut himself very frequently. He has a lot--and he did have a lot of nicks and bruises that were old and healed up.
MR. KELBERG: Did he say to you, sir, that he received any of those cuts while he was still in Los Angeles on the 12th of June in preparation to go to the airport for a trip to Chicago?
DR. BADEN: Yes. That he had cut himself, wasn't quite sure how he cut himself and noticed he had been bleeding, but didn't know how it came about in his home, someplace in this home on Rockingham before he got onto the airplane going to Chicago.
MR. KELBERG: And which cut or cuts did he refer to as receiving before leaving his home on Rockingham to go to the airport?
DR. BADEN: My interpretation was--
MR. KELBERG: I'll move to strike, your Honor, as nonresponsive.
THE COURT: Overruled. Which cut?
DR. BADEN: Yeah. My interpretation was that one of the cuts on the distal inside of the fingers, the third or fourth finger, not the one on the knuckle. The one on the knuckle, he clearly recalled cutting himself in Chicago before coming back I guess on the 13th, not the 14th, and that he had a cut on the inside of one of the fingers which he didn't even realize had happened until he saw some blood coming out of it.
MR. KELBERG: Is that what he told you or is that what your interpretation is?
DR. BADEN: That's the best of my recollection. I didn't tape-record it.
MR. KELBERG: Now, doctor, did you ask him on the 17th how the mechanism, the manner in which he got any of the cuts you observed?
DR. BADEN: Yes.
MR. KELBERG: What, if anything, did Mr. Simpson have to say as to the manner in which he got the cuts?
DR. BADEN: That he recalls some blood after trying to retrieve his phone or some material from the Bronco--from a car--from a car that he had his phone, I think it was the Bronco, that he had gone to the Bronco to get something and may have somehow cut himself while getting stuff, stuff from the Bronco to bring with him to Chicago.
MR. KELBERG: And what, if any, explanation, did he give for the cut to the middle finger?
DR. BADEN: The back--the knuckle and middle finger was that he broke a glass in the hotel room in Chicago after hearing about his ex-wife's death.
MR. KELBERG: Now, doctor, as a forensic pathologist by training, do you usually treat with some suspicion self-reporting made by possible suspects in crimes?
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. KELBERG: Doctor, did you accept Mr. Simpson's explanation as the truth?
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. KELBERG: May I be heard on that, your Honor?
THE COURT: Sustained.
MR. KELBERG: Doctor, the injury to the middle finger that you say Mr. Simpson claimed was due to glass, did he show you how you could get a cut along the middle finger, the back of the middle finger by having some involvement with glass?
DR. BADEN: Well, he said to me words to the effect that after hearing the news by telephone, he was at a sink or something and squeezed and broke and banged a glass against, as I recall, the sink top right next to the faucet, right next to the sink faucets and somehow cut his--his--back of his finger from the shatter or the broken glass.
MR. KELBERG: Did you see any cuts to the palm of his hand?
DR. BADEN: No. His palms of his hands had no cuts as I recall.
MR. KELBERG: Did you see any cuts along the edge where the pinky finger is?
DR. BADEN: No. I had the--you have the photograph showing the scrape marks on--on the inside of the wrist at that area.
MR. KELBERG: Those are not cuts, are they, sir?
DR. BADEN: Well, they're scrapes. They're not cuts. They're scrapes.
MR. KELBERG: And that is something that is consistent with, for example, Mr. Goldman scratching or rubbing across that area of Mr. Simpson's arm if Mr. Simpson had Mr. Goldman from behind with his left arm as Dr. Lakshmanan demonstrated; isn't that correct, sir?
MR. SHAPIRO: Objection. Assumes facts not in evidence, calls for speculation.
THE COURT: Overruled.
DR. BADEN: No. I think that whole demonstration of Dr. Lakshmanan I have difficulty with and I think that--because it's purely speculative. But there are many ways in which one can scrape the inside of the wrist, and it could have happened on Monday, on Sunday, on Saturday, on Tuesday. There's no way of dating when it happened except that it was healing when I saw it.
MR. KELBERG: Doctor, my question to you was, assuming that Mr. Simpson did have Mr. Goldman as Dr. Lakshmanan demonstrated, with his left arm around the chest of Mr. Goldman and his right hand holding the knife at Mr. Goldman's neck, making those two parallel superficial incise wounds, is it consistent with what you see as the abrasions along this area of the wrist that that can be caused by Mr. Goldman's effort to free himself from that bar arm hold?
MR. SHAPIRO: Objection to the tone of the voice of counsel.
THE COURT: Overruled.
DR. BADEN: Uh, that's not my opinion. I don't think it's consistent with that.
MR. KELBERG: Doctor, how in your opinion can somebody get a cut on the back of their middle finger from slamming a glass down without having cuts or other injuries in the palm or pinky or fourth finger areas when the glass is slammed down, if in fact that ever occurred?
DR. BADEN: If the glass is slammed down, there are broken shards of glass, a piece of glass and the individual tries to move it aside with the back of his hand. People can get cuts on the back of their hands from a broken glass. I mean, they're not grabbing the cuts. They're shaving into the sink, because I did see photographs of--from Chicago of glass in the sink. And if he were to have moved the glass with the back of his hand, it's possible to cut himself.
MR. KELBERG: Did he ever tell you he moved the glass with the back of his hand and that's how he cut himself?
DR. BADEN: He told me he didn't--he was so disturbed, he didn't recall exactly what happened except that he cut himself, and then there was blood on the sheet next to the telephone which gave support to that.
MR. KELBERG: Your Honor, I have a series of photographs that counsel has seen.
MR. SHAPIRO: I haven't seen them today and I don't know what photographs they are.
MR. KELBERG: They were provided to counsel.
MR. SHAPIRO: No. We've gotten thousands of photographs.
THE COURT: No. I--
MR. SHAPIRO: These are the Chicago photos.
THE COURT: Proceed.
MR. KELBERG: Your Honor, may they be marked--I think we're at 581--a through whatever the last appropriate number will be--letter?
THE COURT: Letter. A through whatever.
(Peo's 581-A through 581-D for id = photographs)
THE COURT: But we'll need to mark them so the record will reflect which one we're referring to.
MR. KELBERG: I will, your Honor. I'm going to mark them as I get to them. May I approach?
THE COURT: You may.
MR. KELBERG: Doctor, let me show you what I'll first mark as 581-A, and it has a designation already, no. 16 in the upper left-hand back corner.
DR. BADEN: Yes, sir.
MR. KELBERG: Do you see that?
DR. BADEN: Yes.
MR. KELBERG: Is that one of the photographs you looked at?
DR. BADEN: Yes.
MR. KELBERG: Let me show you second one, ask that that be B, and it has the number 1 in the upper--well, would be the lower right hand as one looks at the photo. Did you look at that?
DR. BADEN: Yes.
MR. SHAPIRO: Your Honor, may I approach the witness, please?
THE COURT: Yes, you may.
MR. KELBERG: And C, another photo, this one has the number 5. So may that be 581-C?
THE COURT: Yes
MR. SHAPIRO: Your Honor, Mr. Douglas, who is keeping track of our exhibits, asks that if they may be described a little better for the sake of keeping our records. We'd appreciate it.
THE COURT: Well, we'll make that available to Mr. Douglas at the conclusion of the court day.
MR. KELBERG: As D, the photo that has the number 8 on the back.
DR. BADEN: Yes.
MR. KELBERG: Mr. Fairtlough, if you'll put these up on the elmo. This is 581-A.
THE COURT: All right. Appears to be a photograph of a sink with what appears to be glass in the drain area.
MR. KELBERG: Doctor, assuming that this is a photograph taken in Chicago after Mr. Simpson had been notified by the Los Angeles Police Department of the death of Nicole Brown Simpson and that the room was secured at some point after that call and found in the sink was what you see in this photograph.
DR. BADEN: Yes, sir.
MR. KELBERG: Do you see what appears to be any blood on any aspect of that glass?
DR. BADEN: No.
MR. KELBERG: And showing you the balance of the photograph--I don't know how closely you had an opportunity to look at them--this is B showing the sink area and the floor. Do you see at least on the sink area what appears to be blood anywhere?
DR. BADEN: No, I don't see any suggestions.
MR. KELBERG: And this is--I believe this is the one that's marked no. 5. I believe this is C showing the left side of the sink with a partial picture of the glass. Do you see that?
DR. BADEN: Yes.
MR. KELBERG: And again, do you see any evidence of blood?
DR. BADEN: No, I do not.
(Discussion held off the record between the Deputy District Attorneys.)
MR. SHAPIRO: Your Honor, I believe he showed some more photographs.
MR. KELBERG: I've got one more.
MR. KELBERG: Well, Dr. Baden, I'd be glad to show you the front of the hotel if that will be of any assistance to you, but I don't think it will.
MR. SHAPIRO: I'm talking about the photograph of the wash cloth.
THE COURT: No. Counsel, he gets to conduct his examination and show what he wants. You get to do whatever you want on redirect.
MR. KELBERG: Can we have the last photo--did I only give you three? I'm sorry.
MR. KELBERG: And now a photograph showing the right side. Do you see that?
DR. BADEN: Yes, sir.
MR. KELBERG: And again the question, do you see what appears to be evidence of blood?
DR. BADEN: Not in those photographs.
MR. KELBERG: Now, doctor, if the glass had been slid across into the sink and a cut had been incurred in that fashion, would you expect to see some smearing of blood along the surface where the action is taking place?
DR. BADEN: Might if the bleeding started right away and if it weren't washed off in the interim, afterwards.
MR. KELBERG: That's a very vascular area, this area of the middle finger around the knuckle. Isn't that what you said?
DR. BADEN: I didn't say that, but I--the hand is vascular and the knuckles are vascular. One bleeds from the--that kind of a cut and I would expect him to bleed pretty quickly. I don't know. These photographs are obviously taken many hours after the incident. So I don't know--
MR. KELBERG: How do you know that, doctor?
DR. BADEN: Because I assumed there was no cameramen in the hotel in his room when he did this.
MR. KELBERG: I'll move to strike, nonresponsive.
THE COURT: Overruled.
MR. KELBERG: Doctor, you have no personal knowledge, do you, as to when these photographs were taken in relationship to the injury allegedly being incurred with a broken glass?
DR. BADEN: My--
MR. KELBERG: Correct?
DR. BADEN: I do have some knowledge, that these were taken after he checked out of the hotel.
MR. KELBERG: You have no personal knowledge?
DR. BADEN: No personal knowledge.
MR. KELBERG: And you don't know when an inspection of that room took place in relationship to when Mr. Simpson checked out of the hotel, do you?
DR. BADEN: That's correct.
MR. KELBERG: And you don't know if during that inspection this was the condition that the room was found in and it was secured for the police to arrive? You have no personal knowledge or dispute that either?
DR. BADEN: That's correct. That's correct.
MR. KELBERG: Doctor, by the way, did Mr. Simpson tell you when he went out to the Bronco to get the phone and allegedly cut himself possibly on that area, fourth finger?
DR. BADEN: He told me that while preparing to go to Chicago, at some point, he went to the Bronco to get a phone and maybe other material and he also did things around the house in the kitchen, and at some point he noticed some blood. But--from--coming from his finger, but this was shortly before he left for Chicago.
MR. KELBERG: Doctor, at the time you talked with Mr. Simpson on the 17th, had you been apprised by listening to anything or seeing anything indicating that Mr. Simpson's blood had been found in the Bronco and at his Rockingham home found by police?
DR. BADEN: I don't recall. I--I don't recall what I knew at that time. I had not known--I doubt it. I doubt it because I didn't know too much about the death and the investigation until I came into Los Angeles at Mr. Shapiro's request, and that was just a few hours--the evening before Dr. Lee and I came to Mr. Kardashian's house to look--to examine Mr. Simpson. So I don't know what I knew at that time, Mr. Kelberg.
MR. KELBERG: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. KELBERG: Doctor, you were in communication with Mr. Shapiro between the 14th and the 16th when you arrived, correct?
DR. BADEN: Yes.
MR. KELBERG: And did you ask Mr. Shapiro at any time during the course of those conversations basically what was the status of the police investigation?
MR. SHAPIRO: Your Honor, may we approach?
THE COURT: I'm going to sustain the objection to that.
MR. KELBERG: I'm going to move to a different area. And, your Honor, are we going to 5:00 is it?
THE COURT: 5:00.
MR. KELBERG: Okay.
MR. KELBERG: Doctor, you talked about the stomach contents. Do you recall your testimony in that regard?
DR. BADEN: Yes, Mr. Kelberg.
MR. KELBERG: And would you expect that Dr. Golden's description of Nicole Brown Simpson's stomach contents would not be a difficult task to do; that is a trained forensic pathologist can examine stomach contents and identify sometimes by the naked eye what the contents are?
DR. BADEN: Yes, that can be done.
MR. KELBERG: Now, sir, Dr. Baden--I'm sorry--Dr. Golden identified rigatoni, correct?
DR. BADEN: Yes.
MR. KELBERG: He identified black olives?
DR. BADEN: He--in the report, it says rigatoni and spinach leaves.
MR. KELBERG: And did you hear the testimony--
DR. BADEN: And in the tape, some tape, he said black olives. That isn't included.
MR. KELBERG: But on the dictation, he actually included black olives, right?
DR. BADEN: Yes.
MR. KELBERG: And leafy material that appeared to be like spinach, correct?
DR. BADEN: Yes.
MR. KELBERG: Doctor, did you ever contact people at the Mezzaluna restaurant to see what was served that night to the Brown Simpson party?
DR. BADEN: I made inquiry. I didn't call Mezzaluna restaurant, but I asked--discussed that with Mr. Shapiro about finding out that information.
MR. KELBERG: And did you find that, in fact, there were pasta dishes served which come with rigatoni?
MR. SHAPIRO: Objection. Assumes a fact not in evidence.
THE COURT: Sustained. Rephrase the question.
MR. KELBERG: Doctor, did you receive information that Nicole Brown Simpson had rigatoni?
MR. SHAPIRO: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. KELBERG: Did you hear the testimony of Tia Gavin, the server?
DR. BADEN: No.
MR. KELBERG: If she testified that she had heard after the incident from talking to the other employees that Miss Brown Simpson had rigatoni, would that refresh your memory of any information you received in that regard?
MR. SHAPIRO: Two objections. Misstates the evidence and calls for hearsay.
THE COURT: Sustained.
MR. KELBERG: I have a transcript here, your Honor. I would like to be heard.
THE COURT: Sustained.
MR. KELBERG: Referring the Court and counsel to pages 13568, 135--
THE COURT: Let me see counsel at sidebar without the court reporter, please.
MR. KELBERG: I'm sorry. With or without?
THE COURT: Without.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Rephrase the question, please.
MR. KELBERG: Doctor, I want you to assume that Tia Gavin testified as follows in this case?
MR. KELBERG: And referring Court and counsel to 13568 and 13569, starting at line 18. "Question: Do you have any independent recollection as to what Nicole Brown Simpson had for dinner that night? "Answer: No. No. "Question: Do you have any way of refreshing your memory as to what she had for dinner? "Answer: Only discussions that happened after the event. "Question: Discussions with who? "Answer: People in the restaurant, employees, fellow employees. "Question: And did that refresh your memory as to what she had for dinner? "Answer: Yes. "Question: And, well, what did they tell you? "Answer: Rigatoni." Doctor, assuming that that testimony was given, would Dr. Baden's--I'm sorry--Dr. Golden's findings in the stomach contents of rigatoni tend to support the accuracy of Tia Gavin's testimony as to what Nicole Brown Simpson had?
MR. SHAPIRO: Objection.
THE COURT: Rephrase the question.
MR. KELBERG: Doctor, assuming Dr. Golden had no information at the time of the autopsy as to where Nicole Brown Simpson had eaten dinner on the 12th and what she had had for dinner on the 12th and he identified rigatoni in the stomach contents along with a leafy material apparently like spinach and black olives, would that be consistent, sir, with the testimony of Tia Gavin?
MR. SHAPIRO: Objection. That's not within his scope of knowledge.
THE COURT: Sustained.
MR. KELBERG: Doctor, the menu--did you ever see the bill from Mezzaluna that showed the entries?
DR. BADEN: No, I did not.
THE COURT: Mr. Kelberg, isn't the issue whether or not that testimony by Tia Gavin would have any impact on Dr. Baden's testimony here about the presence of rigatoni in the stomach contents as it relates to the time to digest and the time of death? Isn't that the issue?
MR. KELBERG: It's certainly part of the issue, your Honor.
THE COURT: All right. Why don't you ask him that question.
MR. KELBERG: I'll do it a different way.
THE COURT: All right.
MR. KELBERG: Dr. Baden, you said that rigatoni as a pasta will break down from its identifiable condition within a half an hour?
DR. BADEN: Yes. Usually within a half hour, maybe a little longer, depending on how much is eaten.
MR. KELBERG: What research are you relying upon, if any, to support that view?
DR. BADEN: Studying stomach contents at every autopsy for 30 years.
MR. KELBERG: Well, sir, if you study the stomach contents, you would have to know, A, the exact time of death, correct?
DR. BADEN: Not necessarily, Mr. Kelberg, because, especially with pasta like materials, the stomach can keep breaking down the materials after death you see. There's certain amount of digestive juices in the stomach that keep acting even after a person dies.
MR. KELBERG: Well, doctor, you would need to know then, no. 1, when the person ate the alleged pasta, right?
DR. BADEN: Okay. Yes.
MR. KELBERG: Where are your studies, if any, have been done to show how you have correlated actual time of eating pasta with identification of stomach contents?
DR. BADEN: I haven't published any studies along those lines, but this is ordinarily medical examiner daily work.
MR. KELBERG: Sir, is it your view that the stomach normally empties within two hours of the time of eating?
DR. BADEN: For a normal meal, 95 percent of a meal in a healthy person will empty within two hours. Yes, sir.
MR. KELBERG: Are you familiar with the bent case, b-e-n-t, case?
DR. BADEN: Yes.
MR. KELBERG: And that's a case where the Prosecution in Albany, New York, retained your services on a possible murder of a woman, Joan Bent, correct?
DR. BADEN: Yes.
MR. KELBERG: And in that case, Joan Bent had been missing for about 11 days when her body was found in the trunk of her car, correct?
DR. BADEN: Yes.
MR. KELBERG: And her body was basically in a frozen condition given the cold temperatures at the time of these events; isn't that correct?
DR. BADEN: Yes.
MR. KELBERG: Her husband had given an account to the police reporting her missing in which he said that they had been together about 4:30 for dinner, correct?
MR. SHAPIRO: Your Honor, I'm going to object to this on relevancy grounds and 352 if we go through the whole case, which took a long time to try.
THE COURT: Overruled.
MR. KELBERG: Correct? He told the police they had dinner about 4:30?
DR. BADEN: That sounds correct, yes.
MR. KELBERG: And that his wife left about 6:30 in the evening for business, right?
DR. BADEN: I--I will accept what you're saying. I don't remember the exact timings on it.
MR. SHAPIRO: Well, your Honor, I'm going to object then as an improper hypothetical.
THE COURT: Overruled.
MR. KELBERG: Doctor, and you formed an opinion based upon the contents of potatoes in the stomach that the husband had lied to the police because the form of the potatoes was such that it would have to have been death within about an hour at the most of the meal being taken in by Mrs. Bent; isn't that correct?
DR. BADEN: Yeah. That was part of my evaluation. That is that the--the knife cuts, serrated knife cuts on the potatoes, which were swallowed and not chewed, were still identifiable.
MR. KELBERG: And in the course of your testimony in that case--
MR. SHAPIRO: Your Honor, may I see the document?
THE COURT: Yes.
MR. KELBERG: I'm sorry?
THE COURT: You're referring to a transcript?
MR. KELBERG: I'm just going to get it first before I--
THE COURT: You need to show that to Mr. Shapiro.
MR. KELBERG: I'll be glad to. In fact, I'm going to use the report first.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. SHAPIRO: Your Honor, may we approach, please?
THE COURT: No.
MR. KELBERG: Your Honor, I'll do it without the transcript. I'll let counsel review the transcript over the evening hours. I would like my binder back.
MR. SHAPIRO: Don't we have a procedure?
THE COURT: He can be confronted with inconsistent testimony. It may not be necessary. Proceed.
MR. KELBERG: Thank you, your Honor.
MR. KELBERG: All right. Doctor, your view is that in general, 95 percent contents of the stomach will pass from the stomach within two hours of eating, correct?
DR. BADEN: In a normal meal, yes.
MR. KELBERG: And a normal meal in the bent case included a meal of a thousand cc's, right?
DR. BADEN: It was pork and potatoes I remember. I don't remember the volume, but I do remember they were intact potato, sliced whole potatoes with I believe serrated edges on some of the potatoes from the cut--from the knife.
MR. KELBERG: Doctor, are you relying on any research for your position that the stomach empties within two hours, 95 percent of the stomach empties within two hours of eating?
DR. BADEN: From personal experience, from studies done by giving people barium meals; that is the radiologist commonly or used to in the old days before cat scans and all, would give patients barium meals and then x-ray the meal to see how quickly it emptied, and my experience in readings, yes.
MR. KELBERG: You were here for Dr. Lakshmanan's testimony regarding stomach contents?
DR. BADEN: I was.
MR. KELBERG: And you heard him testify about the Bolandi study, which was a study using ultrasound to see how a pasta meal went through a person's stomach?
DR. BADEN: I have a vague recollection. Incidentally, I don't believe I was here every day for Dr. Lakshmanan. Either I or Dr. Wolf were here. So I don't specifically remember that.
MR. KELBERG: But if you missed it, Dr. Wolf was to fill you in?
DR. BADEN: Umm, yes.
MR. KELBERG: If Dr. Lakshmanan testified regarding the Bolandi study, that a pasta meal took 248 minutes, roughly four hours, to pass, that would be inconsistent with your opinion about a pasta meal such as a rigatoni meal passing within two hours; isn't that correct, sir?
MR. SHAPIRO: Objection. Speculation, misstates the testimony.
THE COURT: Overruled.
DR. BADEN: No. It isn't inconsistent because it depends what you mean by the meal passing. What I'm talking about is the bulk of the meal passing--
MR. KELBERG: 95 percent--
DR. BADEN: Because--approximately 95 percent because the stomach in a normal person has little grooves in it, what are called rugae, and food often gets trapped so that things that we eat can still be in those grooves 24 hours later. But the great bulk of the meal will normally be out of the stomach in about two hours.
MR. KELBERG: If Nicole Brown Simpson finished eating at the Mezzaluna restaurant a rigatoni dinner with a salad and left that restaurant between 8:30 and 9:oo, a quarter to 9:00 as one witness testified, and stopped eating sometime before she actually left the restaurant, sir--
DR. BADEN: That's the usual way, yes.
MR. KELBERG: --and then did not have any additional rigatoni, did not have any additional salad, based upon your view of how the stomach empties, sir, what time of death would you give for her murder?
MR. SHAPIRO: Objection on two grounds. No. 1, that she had a rigatoni dinner, and, no. 2, and it assumes facts not in evidence.
THE COURT: Overruled.
DR. BADEN: I have a problem with your question because it depends how much she ate at the time of her death two hours--somewhere around two hours later according to your theory. She had a half a quart of food in her stomach. That's a huge amount of food. So if you're asking me to assume that she didn't eat anything after she left the restaurant, that's a big assumption. I'll assume what you're asking, but then she would have had to have a huge amount of food at the Mezzaluna restaurant, assuming she was a healthy person, had normal digestion.
MR. KELBERG: Doctor, if you testified in the bent case that a thousand cc's was the content of Mrs. Bent's stomach and that constituted a heavy meal and if we assume that Dr. Golden found 500 cc's in Miss Brown Simpson's stomach--and that is in fact what his report indicates, isn't it, sir?
DR. BADEN: 500 cc's, yes.
MR. KELBERG: And you would describe that at least a medium size meal?
DR. BADEN: Well, it's the remnants of a bigger meal.
MR. KELBERG: But just the quantity of 500 cc's is certainly equivalent to a medium size meal?
DR. BADEN: Medium to large.
MR. KELBERG: And, doctor, assuming that she had her rigatoni and her salad at the restaurant, maybe went for ice cream, but didn't have rigatoni, didn't have salad after that, what would you estimate the time of death to be given your view that 90 to 95 percent of the stomach contents is gone within two hours of the meal being eaten?
MR. SHAPIRO: Objection. Improper hypothetical. May we approach, please?
THE COURT: Overruled. No.
DR. BADEN: As I recall my opinion, the bent case that you're referring to--
MR. KELBERG: I'll move to strike as nonresponsive.
THE COURT: Sustained. The answer is stricken.
MR. KELBERG: Doctor, that hypothetical I gave you, my question to you is, your opinion in this case as to the time of death for Nicole Brown Simpson, given that hypothetical set of circumstances.
DR. BADEN: Leaving out the bent case because you made an improper comparison. Leaving out the bent case.
MR. KELBERG: Your Honor, I'm going to move to strike as nonresponsive.
THE COURT: No. He can answer the question. You're asking him to give an expert opinion based on a hypothetical set of circumstances. He stated which does not include the bent case.
MR. KELBERG: Okay.
DR. BADEN: Umm, my--
THE COURT: He can clarify.
MR. KELBERG: All right. Thank you, your Honor.
DR. BADEN: My opinion would be that if she had 500 cc, milliliters of food in her stomach with recognizable pasta, rigatoni, having eaten before 8:30 P.M., that it doesn't make sense that she could have lived for two hours after--after that meal. She must have eaten a huge amount more than that because most of it would have--she was alive at around 10:00ish I guess when she had a telephone conversation. So an hour and a half, for example, after eating that meal, a great portion of it would have had to gone out of the stomach. So it would have had to start out much greater than 500, and there would have been more digestion of the rigatoni, making it very difficult to identify. I don't know how intact the rigatoni was. Maybe Dr. Golden is very good at this stuff and can get a little fragment of a pasta and identify it.
MR. KELBERG: Did you ask him?
DR. BADEN: Umm, I spoke to Dr. Golden, but he--not on this matter.
MR. KELBERG: Did you ask Dr. Golden, sir, how he identified the condition of the rigatoni?
DR. BADEN: No. Umm, however, that's why other people have to be able to look at it. That's why it should have been saved, because the degree of digestion of the rigatoni would be very important, and I think, my view would be that if she stopped eating before 8:30 and had this in her stomach at 10 o'clock, that she ate in-between.
MR. KELBERG: Doctor, did you--I withdraw the question. Doctor, would it be your opinion that the more recognizable the rigatoni, the shorter the interval between the time she last ate and the time she died, assuming she did not have rigatoni after she left the restaurant?
MR. SHAPIRO: Objection. It's an improper assumption based on the doctor's answer.
THE COURT: Overruled.
DR. BADEN: Yeah. The more intact--see, I can't see with--I don't--
MR. KELBERG: Move to strike as nonresponsive.
THE COURT: Overruled. He started to answer before you interrupted. Doctor, finish your answer.
DR. BADEN: The more intact and the more recognizable the rigatoni is, the less digestion there is of the rigatoni, that they're all intact tubes, the closer the death is to the time of eating.
MR. KELBERG: Now, doctor, did you hear or review Dr. Lakshmanan's testimony, if you were not here, in which we reviewed what the literature says; for example, knight's book on stomach emptying as a measure of time since death?
DR. BADEN: I was here when you went through a lot of time of death information.
MR. KELBERG: And did you hear at that time from Dr. Knight's book on page 82: "It was assumed that the physiological process of digestion--"
MR. SHAPIRO: Your Honor, may we also have an opportunity to see this before--
MR. KELBERG: This was used, your Honor, on direct examination of Dr. Lakshmanan. May I--thank you.
MR. KELBERG: "It was assumed that the physiological process of digestion of an average meal lasted some two hours. This is based on the consumption of a test meal of a gruel, hardly--however, hardly a representative example of a modern mixed diet. Moreover, the subjects of experimental work were healthy and presumably free from sudden stress during the experiments. More elaborate descriptions of digestive times of various foods have been drawn up, but they are of dubious value. As an example of the great variations offered, modi gives four to six--"
THE COURT: Slow down.
MR. KELBERG: I'm sorry. "--modi, M-O-D-I, gives four to six hours for a meat and vegetable meal and six to seven hours for a farinaceous meal. Adelson--" and Adelson's book is pathology of homicide; is it not, doctor?
DR. BADEN: Yes.
MR. KELBERG: You're familiar with it?
DR. BADEN: Yes.
MR. KELBERG: "Adelson stated that the stomach begins to empty within 10 minutes of swallowing, that a light meal leaves the stomach by two hours, a medium meal takes from three to four hours and a large, heavy meal takes four to six hours." Recall hearing that from Dr. Knight's book?
DR. BADEN: I read that in Dr. Knight's book.
MR. KELBERG: You disagree with his view that it is not appropriate to say that the stomach empties within two hours, correct? You disagree with his view?
DR. BADEN: I agree with some things and not with other things. A great deal has to do with just deciding how much volume of food and what kind of food is taken in. But my experience has been and the experience of others--even Dr. Knight has this wide variation--is that in a normal healthy person, not under stress as indicated, 90--90, 95 percent, the great bulk of the meal will empty in two hours. That's the way it works.
MR. KELBERG: If you testified in the bent case that a thousand cc's was a heavy meal, then 90 to 95 percent emptying would leave roughly a hundred cc's?
DR. BADEN: Well, in the bent case, my opinion was that--
MR. KELBERG: Excuse me. I'll move to strike.
DR. BADEN: --death occurred almost immediately after she ate.
THE COURT: Overruled.
MR. KELBERG: If the stomach contents had passed under your two-hour theory, she would have had about a hundred cc's if death occurred after that two-hour period, right, using the 90 to 95 percent rule that you have?
MR. SHAPIRO: Objection. Very difficult to follow.
THE COURT: Overruled.
DR. BADEN: Except a thousand cc's a huge amount. That's much more than the average meal. That's a quart of food in the stomach. So--but in the bent case, my opinion was as I recollect, that she died very quickly after she ate. He didn't wait around two hours to kill her.
MR. KELBERG: Well, doctor, if 500 cc's is found in Nicole Brown Simpson's stomach and that represents 90 percent passage of a meal, how much would have been in her stomach?
DR. BADEN: A huge amount when she ate at Mezzaluna. That's why looking in the refrigerator and looking in the garbage and looking in the sink is important to a medical examiner, to see what food was eaten at the house at the scene of death.
MR. KELBERG: And, doctor, isn't that why you've offered those explanations, because you realize that using your theory of stomach emptying means that the time of death for Nicole Brown Simpson is closer to 10:15 than it is to 11 o'clock? Isn't that your change of view to looking in the stomach--I'm sorry--looking in the refrigerator, looking in the garbage can and so forth?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Sustained.
MR. KELBERG: May I briefly--your Honor, two photographs that have been previously marked 75 and 76?
THE COURT: No. I think we're going to call it a day.
MR. KELBERG: Okay.
THE COURT: All right. Ladies and gentlemen, at this time, as far as the jury is concerned, we are going to take our recess for the evening. Please remember all my admonitions; don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter is submitted to you, don't allow anybody to communicate with you with regard to the case. Have a pleasant evening. We'll see you tomorrow morning at 9:00. Dr. Baden, you may step down. You are ordered to return tomorrow morning at 9 o'clock. All right.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Let's proceed. All right. Back on the record in the Simpson matter. The Defendant is again present before the court with counsel. The jury is not present. We have two matters to take up. First is the matter of the items that have been subpoenaed and delivered to the Court. I'm about to clear the courtroom. All right. Let's take up the issue of the first dibs on the material that has been subpoenaed and delivered. Mr. Cochran.
MR. COCHRAN: Thank you very kindly, your Honor. I'll be brief. The hour is late. The Court I think is somewhat aware of the fact, which we previously indicated, the tapes which were turned over this afternoon are tapes which I went to North Carolina, pursued through the North Carolina Court of Appeal and then asked to be brought here. They are copies of the originals. Pursuant to the order of the North Carolina court, those tapes would be turned over to, as petitioner's counsel, myself. Mr. Simpson paid for the copies of those tapes, paid for the reproduction of those transcripts. The District Attorney's office had nothing to do with this at all. What happened was, according to Messers. Regwan and Schwartz, who have fought vigorously on behalf of their client, they were summoned downtown yesterday by the D.A.'s office and given a subpoena duces tecum according to them, and they came pursuant to that. But these tapes by our previous arrangement, once we won in North Carolina on Monday, I made arrangements in talking with Miss McKinney--because she'll still be coming to California with the originals for this court--to pay for these, to have them brought out because, as the Court is aware, we're going to have--I'm very concerned about security of these things, and we made arrangements to have these brought to us so I could then check the actual transcript that accompanies these tapes and they would be put in a safe place and they would not be leaked.
Mr. Simpson paid for those as he will be paying for the witness when they come to California. In fact, I don't think I have to remind this Court when I asked the Court for further declaration, the Prosecution objected and said you couldn't do this and we were the ones arguing full faith and credit. We were the ones who stood up for this Court. Those are our tapes. They have nothing to do with these tapes. If they want to pursue them, let them pursue them. This is impeachment. And as I just was reminded in the course of Mr. Kelberg as he would run up there with all these transcripts and things and try to impeach Dr. Baden, we get to see them at the very last moment. We will at the appropriate time--if they want to make motions, they will be available to them. But this sneak attack of trying to go and subpoena the lawyers for the tapes, which we have now been given custody of by the North Carolina court, we have paid for, is just not right, your Honor. So what I'm asking is that the Court turn those tapes over to me right now. They would have been turned over to me at 10 o'clock, and by now, I would have had a transcript under seal for this Court. I have a 1054.7--
THE COURT: You are being awfully optimistic how long it takes to transcribe tapes.
MR. COCHRAN: Well, your Honor, I've made some arrangements because I appreciate the importance of this. And perhaps we would have made our best efforts at any rate, and now we've been waylaid. And the Court understands the plan as I've laid it out to you, and I won't go into that here in open court. But what I indicated to you we want to do, I want to proceed and I want to do that. The Court had an occasion to speak with those two young men about these tapes and the sensitivity therein, and I have since our conversation--
THE COURT: You're referring to counsel?
MR. COCHRAN: Yes, sir. Messers. Regwan and Schwartz in a kind of in camera proceeding, and I have since talked to them also. And any protective order, I have absolutely no problem with one provision which I have asked them to include therein, and I think that will be done. And I want to be able to proceed with our tapes, our copies of the tapes. The originals will be brought to this Court. The People can do whatever they have to do. But this is not an issue where they have any standing at all. They can subpoena the two lawyers all they want. But the subpoena duces tecum for these copies of these tapes are the fruit of the Defense labor paid for by Mr. Simpson.
He's the one who went to bat to uphold this Court's order. And now that we've victorious, the People want to come in and try to get the fruits of this, and they don't get them yet. At some point, when your Honor determines it appropriate, they will be able to get them. And the Court knows the other provisos that I've asked about that I will not go into now. But that succinctly has stated the issue. I'd like to have my tapes, I'd like to have this over and I'd like to be able to leave as soon as possible.
THE COURT: Mrs. Robertson, do you have the original SDT--
THE CLERK: No.
THE COURT: --- for that matter?
MR. COCHRAN: Does the Court by the way have the order from North Carolina? I gave the clerk the order.
THE COURT: It's floating around my bench somewhere.
MR. DARDEN: Did Mrs. Robertson indicate that she has the SDT, your Honor?
THE COURT: No. She indicated she did not. My recollection is, the original, since it was an out-of-state matter, was signed by the Court with certain findings in the transcript to the state of North Carolina.
MR. COCHRAN: That is correct, your Honor.
THE COURT: All right. Mr. Darden.
MR. DARDEN: Well, your Honor, I'm not sure what the arrangements were between Mr. Schwartz and Mr. Cochran and I'm not concerned about those arrangements. Whatever contractual obligations Mr. Schwartz may have had to Mr. Cochran, they aren't at issue here before this court. What is at issue is an SDT, a court order that the Prosecution drafted and served on Mr. Schwartz. And in response to the Prosecution's SDT, Mr. Schwartz came here to court and delivered those tapes to the court. So that now these tapes are under the court's jurisdiction. This isn't an impeachment issue or a discovery issue or 1054 issue, and that is because these tapes are not in the Defendant's possession. They're in the Court's possession pursuant to our SDT. If Mr. Schwartz or Miss McKinney has failed to somehow respond accordingly or properly to the North Carolina court's order, that's an issue Mr. Cochran should take up in North Carolina or here in L.A. with Mr. Schwartz and Miss McKinney. It's none of our business, just like our SDT is none of Mr. Cochran's business.
But we're not here this afternoon to deprive Mr. Cochran of access to those tapes. We have no objection to Mr. Cochran having access to our tapes after we copy them. And we have someone upstairs right now who is ready, available and willing to begin that copying process right now if the Court would kindly release our tapes to us so that I might leave. There is no provision under the law at this point that would require the Court to surrender our tapes to Mr. Simpson or to the Defense. As the Court may recall, and I alluded to this this morning, back on July 14th when we heard of the existence of these tapes, we came to the Court ex parte and advised the Court of what we had heard and learned about these tapes, and we asked the Court for guidance. We didn't hide the ball. We didn't hide the fact of the existence of these tapes if they existed, and we weren't sure, from the Court and we asked for guidance. The Court directed us to issue an SDT for those tapes. We issued an SDT on Mr. Schwartz. He indicated to the Court that he did not have the tapes. The Court directed us to notify the Defense of the existence of those tapes, and we did that.
We have always operated from a position of fairness in this case like in all the cases we prosecute, and we want to be fair again this afternoon. We'd like the Court to be fair to us. They're our tapes. We won't deprive Mr. Cochran of access to those tapes. I will take them upstairs, I will copy one for him and one for me and I will return those copies delivered to the court today to the court forthwith. Mr. Simpson will get the value of his money and his dollar. The Prosecution will get the value of its SDT. That's a fair approach I think to this situation, and I think we're being awfully kind this afternoon to offer Mr. Cochran a copy of our tapes. And I'm going to go out on the limb on this one, Judge, and I'm going to say that I'm sure the board of supervisors won't mind springing for the cost of these tapes this one time for Mr. Simpson and Mr. Cochran. But this is unnecessary, this fight over these tapes is unnecessary. We don't want to delay this trial. We have a jury that has been sequestered for seven months. We don't want to be in a position where Mr. Fuhrman or some other witness is confronted with these tapes and then we are forced into a position where we need to take days to review 15 hours or 12 to 15 hours of cassette tapes. We'd like to move this case along. I don't know why Mr. Cochran doesn't want us to help him move this case along. The law is on our side on this issue I think, and I would ask that the court order the clerk to turn those tapes over to us. And you may order us to deliver a copy to the Defense. They may wait with us with our representative in the sound lab while those tapes are being copied. One additional issue. It is our SDT to McKinney and Schwartz. They did not oppose that SDT. They did not move to quash the SDT, and Mr. Schwartz told the Court this morning that he delivered the tapes to the Court in response to our SDT and not in response to the North Carolina Court's order. As I said before, the law is on our side on this issue, and we would ask that the Court direct the clerk to give us our tapes forthwith.
MR. COCHRAN: May I respond?
THE COURT: Briefly.
MR. COCHRAN: We're from the government. We're here to help you. Your Honor, let me make this as clear as possible. These are Mr. Simpson's tapes that he has paid for. These are the copies of the tapes that I arranged for, your Honor.
THE COURT: I've heard that for the third time.
MR. COCHRAN: Yes. But, your Honor, how many times can I say that since they want to help me so much? These are the tapes I went through. Where were they in North Carolina when the Court ruled against us, when Miss Clark was fighting me, fighting me until North Carolina Court of Appeals--
MS. CLARK: I object to counsel's characterization to my response. All I did was alert the Court to the legalities of the procedure. That's all I did. I never--
MR. COCHRAN: I said where were they. That's all I said, your Honor. And what I'm trying to say, is that these are our tapes. Mr. Schwartz made it very, very abundantly clear, the tapes--arrangements have been made to get the tapes here for us, for Mr. Simpson. The subpoena duces tecum served last night or when they were brought down here was for them, not for our tapes. They cannot do that, the tapes we are entitled to pursuant to North Carolina court order and pursuant to your order. The originals of these tapes I had made arrangements for, will be brought to this court by Miss McKinney and I told the Court when they would be here. That was the arrangement. Since she's our witness, we are the ones who would determine when we're going to call her, Judge, and that's the deal. Not what the People have tried to do by this preemptive strike. It's a real easy issue as Mr. Darden said. I don't have any desire for them not at some point to have copies of these tapes, and we will do that appropriately as we've indicated. But right now, it's premature. These are our tapes, and I'd ask the Court to resolve this matter right now. I'd like the tapes and the transcripts and I'd like to comply as I've indicated to you in 1054.7 with regard to appropriate copies. We want to proceed.
THE COURT: Thank you. Well, this is an issue of what came first, the chicken or the egg, since both sides were pursuing discovery of these particular matters. The Prosecution's effort to serve counsel, local counsel here of Miss McKinney was unsuccessful since counsel agreed to not have possession of the matters sought, the tapes and transcripts. The out-of-state process pursued by the Defense was, in fact, successful, and the Court has a copy of the order entered by the honorable Peter McHugh, the presiding Judge in North Carolina, County of Foresight, directing that Miss McKinney and her counsel turn over these tapes to the counsel for the Defendant, in this matter, Mr. Simpson, and this date--this order was dated August the 8th, 1995, which predates the issuance of the SDT by the Prosecution in this case. The Court also, in issuing the SDT, the out-of-state subpoena duces tecum, made a finding of materiality and the matter was, as in the declaration in support of the SDT, indicated that these matters were for the purposes of impeachment. And at this point in time, I'm going to make a finding that the Defense is under no obligation to disclose contents of these tapes pending further order of the Court. And since these tapes are here in the jurisdiction of the County of Los Angeles pursuant to the efforts of the Defendant, the Defendant is entitled to the fruits of his labors and those of his counsel. However, as I indicated to you previously and to counsel for Miss McKinney, I'm going to enter a protective order regarding duplication, dissemination and publication of the tapes and contents. Further, Mr. Cochran, I'm going to order that your office may not--that only yourself and Mr. Douglas shall have any access to these tapes, other than the staff that you're going to use for the transcription. And those people will have to sign a declaration under penalty of perjury that they agree to the Court's order that they not discuss or otherwise disseminate the contents of those tapes or the transcripts, and that order will be in effect pending further order of the Court. Also, Mr. Schwartz indicated that he wanted to protect the proprietary interest of Miss McKinney and that he would forward to the Court by facsimile a protective order, and I indicated to him my inclination was to sign a reasonable protective order that he wanted to propose to the Court on behalf of his client.
MR. COCHRAN: May I say one thing, your Honor, as a point of clarification?
MR. DARDEN: I also require a point of clarification.
THE COURT: Mr. Cochran was first.
MR. COCHRAN: Thank you, your Honor. With regard, your Honor, to this, I would ask that--and I have no problem with that, and I have talked to the Court about the protective order and some specific language where I want one particular portion in there the Court's aware of that Messers. Regwan and Schwartz said that they would agree to that. Without stating anything further on the record, the Court is aware of what I'm talking about. The other thing is, because of--I would like and ask leave of the Court, because they're officers of the Court, that my brethren colleagues and my sister who is also not here, Miss Shawn Snider Chapman, also be allowed to have access, that we will be governed by the same thing. They will be kept in the office under those circumstances.
THE COURT: I would feel more comfortable with the order that I've made because there's two individuals in the same office. I don't want these things traveling around. You're lead counsel. Mr. Douglas is in charge of discovery matters. That's why I selected you too. Given the nature of this issue, I feel that's a reasonable order, and I expect you to abide by that. All right. Mr. Darden, you wanted clarification?
MR. DARDEN: Yes. First of all, I am not aware of the content of this protective order that the Court is apparently about to issue, and I want to make certain that there is nothing in this protective order that is going to preclude us from pursuing recovery of copies of these tapes from Mr. Schwartz or Miss McKinney or by someone--
THE COURT: When I receive the fax copy from counsel, I'll share it with you before I sign it. If you have any objections or additional directions, as I asked counsel to propose since they are most interested in the protective order.
MR. DARDEN: All right. In any event, so that is clear to Mr. Schwartz, the Court isn't going to issue any order that might preclude him from giving us a copy should he decide to do so?
THE COURT: No, I'm not. That copy is here pursuant to the efforts of the Defense. All right. Miss Sager, you had some burning desire to speak with the Court?
MS. SAGER: Well, your Honor, I have been advised that this morning's session included a discussion about calling my client, Tracie Savage, to the stand early next week, and that raised two issues. The first is a preliminary issue of whether there is anything that Miss Savage can testify to that is relevant and admissible in light of your Honor's order of yesterday, and we think that there is not and there's no reason for her to be called to the stand at all. But in the event that the Court disagrees and decides that there is something--and I should preface that by saying, it's my understanding that there have some kind of discussions, perhaps in chambers or off the record--and I'm not sure to what extent the Prosecution has indicated its opposition to the Defense intention to call Miss Savage and Mr. Bosco to the stand, but I have not been able to confirm that.
THE COURT: Well, let me bring you up to speed. The Court's ruling yesterday was merely to indicate that your client, along with Mr. Bosco, were entitled to claim protection under the reporter shield law and I found insufficient basis to go beyond the shield law and to pierce that shield. However, that does not protect your client from otherwise testifying to other matters that are--that are--that were published by your client. Whether those things are relevant, admissible, that's another issue that the Prosecution has indicated that they are going to strenuously object to and they're going to fight every inch of the way. Those matters have not been determined yet, and I suspect we will have a 402 hearing both with Mr. Bosco and Miss Savage and as well as perhaps other witnesses. And given the pace that we are proceeding with Dr. Baden, it looks to me like we won't see your client until next week.
MS. SAGER: Well, your Honor, as to the first thing, that is how I understand the order from yesterday. But in making that decision, the order does describe whether or not the information is material to the Defendant's case.
THE COURT: And there's a logical correlation between relevance and materiality. Is that the argument you're about to make?
MS. SAGER: Yes, your Honor. And that's simply--when referring to the order of yesterday, that's what I was intending to mean; that given that ruling and the Court's findings, that it seems to us that certainly a strong argument could be made there is nothing left that Miss Savage could testify to that would be relevant and admissible, and obviously I know the Prosecution intends to argue that point.
THE COURT: Well, the Defense feels quite the opposite. They feel the fact that Miss Savage made the publication that she did is evidence of something that they wish to present to the jury, and also, they wish to present the facts and circumstances that led Mr. Bosco to comment on that situation last month.
MS. SAGER: No. I understand that there's a difference of opinion on that subject, your Honor, and at least on this subject, we respectfully disagree with the Defense counsel's position and find ourselves perhaps rarely on the side of the Prosecution. We either seem to be on one side or neither side. But in this instance, we agree with them, that this is not material or relevant evidence.
But I understand that there is a dispute and the Court has not yet made a determination whether either Miss Savage or Mr. Bosco have anything to say in front of the jury that is relevant and admissible. But in the event that the Court is deciding those issues and makes a determination of admissibility that would require Miss Savage to testify, there is a second issue, which is the timing of that. And I've already advised Defense counsel of this, and they suggested that we come down here and do this on the record at the close of the session, which is why I'm here. Miss Savage has long planned a vacation to take her out of state and she has already left Los Angeles and is planning to be gone until the 20th of August, which would make her availability next week very difficult for her. And I have asked that if this issue is to be reached, that it be reached during the week of the 21st when she will be back in town. And I also have planned to be out of the country next week. And given those two factors, have asked the Defense counsel whether this matter can be taken up on the 21st or any time during that week and that both myself and Miss Savage can be made available so that in the event the Judge, your Honor decides that she needs to take the stand, she can be here and I can be here.
THE COURT: The problem is, she was released from this Court subject to recall.
MS. SAGER: That's not clear from the record, your Honor. At least, she was released from this Court, but there's nothing in the transcript that I could find that indicates that that was done subject to recall. But even subject to that, I would ask if the Court determines that that's the case, that her schedule and counsel's schedule be accommodated to the extent that's possible so that this matter not be taken up during a week when both of us had planned to be out of state and out of the country. And I understand that there's some difficulty in scheduling, but would ask to the extent possible that those things be accommodated.
THE COURT: As far as scheduling, what's the position of the Defense?
MR. COCHRAN: Well, your Honor--thank you. Usually we're on the same side with Miss Sager and it is rare. We're the ones who asked to have her come down this afternoon. We had--as I indicated to you this morning, we had thought if the cross-examination of Dr. Baden ever finishes, we wanted to put these witnesses up next, as I mentioned to you this morning. You know, given 402 hearings, we wanted Kestler, we wanted Bosco, we want Savage next week. We want to finish our case, you know, as soon as possible, and that's why we thought we should resolve this. We'd like to have them next week if at all possible.
THE COURT: Well, that "Like to," I mean you don't sound particularly adamant at this point.
MR. COCHRAN: Well, I'm adamant. You know, Judge, I'd like to know we are going to finish Dr. Baden tomorrow. If that happens, then I would like to call them on Monday. But it could be Tuesday, it could be Wednesday. But they would be the next ones up. All right. That's what we're intending, your Honor, Kestler and then those two.
THE COURT: Well, we do have ahead of us a rather what looks like an interesting legal battle over the admissibility of this material as well. So perhaps we ought to resolve that first.
MR. COCHRAN: Well, we'll be glad to do that, your Honor. But still, again, you know, hope springs eternal. We believe that--we've had a 402 hearing at least with Mr. Bosco, and it seems to me that's not going to be a difficult issue for the Court.
THE COURT: Well, yeah. I mean, the record is clear what we're dealing with. So I think we can proceed with the 402 hearing without the actual presence of the two witnesses and their counsel. But do you want to accommodate Miss Sager as far as the 21st?
MR. COCHRAN: May I have a moment? May I have a moment, your Honor?
MR. GOLDBERG: Your Honor, could we also be heard as to the issue of scheduling on this?
THE COURT: Sure.
MR. COCHRAN: In talking with Mr. Sullivan, he may have a similar problem. May we take a moment?
THE COURT: Mr. Goldberg, what's the People's position regarding scheduling?
MR. GOLDBERG: Your Honor, the People's position is very simple. We've already been heard three times on this issue. So has the Defense. The Court has already issued a ruling that this isn't material for discovery purposes. Materiality for discovery purposes is a lower threshold than the issue of relevance for admissibility in court. There is no way that the Court can issue any other ruling based upon the rulings that the Court has already done other than finding--
THE COURT: No. Counsel, I wanted you to address the issue of scheduling.
MR. GOLDBERG: That's why, for the purposes of scheduling, your Honor, we would like this matter also to be resolved expeditiously, and that means that we would like it to be resolved, in all due respect to the Court, right now. We don't see any reason why it can't be resolved right now. This is a very simple straightforward issue and I don't think anyone needs to be heard--
THE COURT: Another no brainer, huh? All right. All right. Mr. Sullivan.
MR. SULLIVAN: Your Honor, may it please the Court, basically I'm in a slightly different position than Miss Sager because her client now is not here. My problem unfortunately is, my client is here every day and could be called literally almost at a moment's notice. At some point, I have to return to Washington, D.C. what I find myself in need of is some degree of certainty. If we could take up these foundational issues, determine whether Mr. Bosco's testimony is indeed necessary and then if it would be possible to get some kind of reasonable notice if it turned out that he was going to have to, in fact, go on, then I could be prepared to be back here. As delightful as it has been, at some point, I do have to go back to my office in Washington. I'm only supposed to be here for a week originally. I've extended it because of these proceedings obviously, but it would helpful to know, you know, what the deal is.
MR. COCHRAN: Can I make a suggestion, your Honor?
THE COURT: Sure.
MR. COCHRAN: I've asked Mr.--in trying to accommodate everyone, I've asked Mr. Douglas to see if he can reach Dean Uelmen. What I would propose, that the Court might consider resolving this matter and granting our motion to call these witnesses tomorrow, there will be no holding of one's breath and we can then, if you--if the motion is granted, we'll then agree perhaps to call them on the 21st. Also, it'll throw our case off, but we'll try to rearrange if that helps out.
THE COURT: How does that impact Dr. Baden tomorrow?
MR. COCHRAN: Well, no. No. I meant at the conclusion. No, we don't want to take Dr. Baden off. I thought at the end of the day--I was being optimistic that Mr. Kelberg might finish fairly earlier. If we can get an estimate on that.
THE COURT: Mr. Kelberg?
MR. KELBERG: Your Honor, is the court day tomorrow to be a half day?
THE COURT: Yes. We'll conclude at noon. I have medical appointments in the afternoon.
MR. KELBERG: I can't guarantee that I would be done. I would hope to, but it depends on how responsive Dr. Baden is to the questions.
THE COURT: Well, let's shoot for noon tomorrow or 11:30 tomorrow for this hearing.
MR. COCHRAN: Let me see if Jerry can be here. Well, no, he can't be here.
THE COURT: The 21st it is.
MR. COCHRAN: One second.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Your Honor, I'm advised that Dean Uelmen can be here Monday afternoon. What I would ask is--let's assume in the best case scenario, Dr. Baden is finished by Monday afternoon. These are the next witnesses we intended to call. Mr. Bosco--and I think Mr. Sullivan is indicating, at least regarding Mr. Bosco, that might be--perhaps we can take that up on Monday and maybe Miss Sager could work something out. We can perhaps proceed in Miss Savage's absence if you have someone here perhaps and resolve it on Monday afternoon. That would be easier and then we can work on the testimony thereafter if we're successful.
MR. GOLDBERG: Your Honor, could we inquire what the nature of the hearing will be? Are we going to actually have testimony? If so, what would it be?
THE COURT: No. This is a legal argument only. I mean, the issues are framed.
MR. GOLDBERG: So the legal argument is going to be, we're going to argue the issue of materiality again?
THE COURT: No. The admissibility, not materiality.
MR. COCHRAN: And the theory of that admissibility.
THE COURT: Right.
MR. COCHRAN: We understand, your Honor. And so I'm saying Monday afternoon might work out better.
MR. GOLDBERG: Could the Court perhaps just frame the argument so we know what we're going to be addressing? Is the argument--
THE COURT: No. Well, counsel we've discussed--as you've said, we've discussed this three times before. They want to put on the videotapes of Tracie Savage making these reports. They want to put on Mr. Bosco to say, yes, the same misinformation came to him. They want to use that as evidence in support of their evidence tampering, their rush to judgment theory and all the other arguments--
MR. GOLDBERG: I understand, your Honor. I just want to know what we have to be confronted with because we might like to brief it or we might like to argue at another time.
THE COURT: All right. Mr. Sullivan, are you available Monday?
MR. SULLIVAN: Yes, indeed, your Honor. I just have a commitment at the end of the week in Oklahoma in another case, Thursday and Friday.
THE COURT: All right. Monday it is. Monday as far as Bosco. We will address both issues since they're related. All right. What time do you want to do this Monday? First thing Monday morning? Monday at 1:30?
MR. COCHRAN: Monday at 1:30. I think--Dean Uelmen cannot be here until Monday afternoon. Monday at 1:30?
THE COURT: Monday at 1:30.
MS. SAGER: Well, your Honor, I will be out of the country on--
THE COURT: I understand that, counsel. We have Mr. Sullivan. We'll take up the issues regarding Mr. Bosco, which is a related issue. It's all part of the same thing.
MS. SAGER: And if the decision is made that Miss Savage has to take the stand, that will happen sometime after August 20th?
THE COURT: Yes, it will.
MS. SAGER: Thank you.
THE COURT: All right. Thank you very much. Anything else before we call it quits for the day?
MR. DARDEN: I'd like my tapes.
THE COURT: All right. We'll stand in recess until tomorrow morning, 9 o'clock. Thank you, counsel.
(At 5:45 P.M., an adjournment was taken until, Friday, August 11, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Thursday, August 10, 1995 volume 203
Pages 40972 through 41240, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
ALSO PRESENT: Paul M. Kistler, Esquire Matthew H. Swartz, Esquire Ron Regwan, Esquire Kelli Sager, Esquire Michael Sullivan, Esquire
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I N D E X
Index for volume 203 pages 40972 - 41240
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Day date session page vol.
Thursday August 10, 1995 A.M. 40972 203 P.M. 41077 203
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
Baden, Michael 40979s 203 (Resumed) 41081s 41111bk
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Baden, Michael 40979s 203 (Resumed) 41081s 41111bk
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
579 - Curriculum vitae 41119 203 of Dr. Michael Baden
580 - 1-page document 41156 203 described as the notes of Dr. Michael Baden
581-A thru 581-G - 41186 203 photographs of sink area