Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record. Are we missing Mr. Shapiro?
MR. DOUGLAS: We are, your Honor.
THE COURT: It's his witness.
MR. DOUGLAS: Can I go outside?
THE COURT: No. I'm sure he knows where to come. While we're at it, let me--I need to talk to counsel on the record with the court reporter, please. Mr. Douglas and Mr. Darden.
(Pages 41242 through 41244, volume 203A, transcribed and sealed under separate cover.)
(The following proceedings were held in open court, out of the presence of the jury:)
MR. SHAPIRO: My apologies, your Honor.
THE COURT: All right. Are you ready to proceed?
MR. SHAPIRO: Yes, we are. I'm sorry.
MR. KELBERG: Could we perhaps approach with the reporter to save some time before the jury?
THE COURT: Why don't you do it right now. We don't need to approach.
MR. KELBERG: I wish to display on the elmo, have printed out as exhibits some photographs from Spitz and Fisher which demonstrate defensive wounds to the arms and leg areas of people who have been killed by sharp force injuries. These are from photographs on pages 260, 261, 262, 263, 264 of the Spitz and Fisher medical legal investigation of death, 3rd edition.
MR. SHAPIRO: I've seen it.
THE COURT: All right.
MR. KELBERG: Is there going to be an objection to their use?
MR. SHAPIRO: Yes.
MR. KELBERG: That's why I want to do it now. Perhaps we could show the Court.
THE COURT: Let me see.
MR. KELBERG: I think that's the end of the photographs, your Honor.
THE COURT: All right. Mr. Kelberg, starting on--I'm sorry. Which--
MR. KELBERG: I'm sorry. Is it 261? A full-page photograph as I recall. Can I just approach briefly, your Honor, to--260. May I proceed, your Honor?
THE COURT: All right. Mr. Kelberg.
MR. KELBERG: Your Honor, Dr. Baden has opined regarding the extent of a struggle between both Nicole Brown Simpson and the perpetrator or perpetrators and between Ronald Goldman and the perpetrator or perpetrators, and as part of a basis for his opinion, he refers to defensive wounds and possibly the absence of defensive wounds as pertains to Dr. Lakshmanan's testimony on the issue of a punch being inconsistent with the kind of blunt force trauma seen on the back of Mr. Goldman's hands.
These photographs from this recognized forensic pathology text show the kind of forensic wounds which in fact are seen on the back of the arms and so forth, and it's important that the jury see what would be there if in fact Dr. Baden's opinion of a punch being thrown were in fact supportable. It is the absence of those kinds of wounds which Dr. Lakshmanan says is part of the reason he forms the opinion that the one bruise on the knuckle is not the product of a blow from a fist of Mr. Goldman to the perpetrator. It's important that this jury see how defensive wounds appear. The photograph of the legs, for example, there's one--
THE COURT: The photograph of 264.
MR. KELBERG: --of the legs is important because Dr. Baden has also formed an opinion with respect to a cut in Mr. Goldman's shoe. And what the text will indicate is that sometimes you will see defensive wounds in the legs, primarily or more commonly with women than with men, according to the text, and will see of course there are no such injuries, no cuts to the jean and so forth in that area of Mr. Goldman's leg to support our contention that Dr. Baden's view of what that cut in the shoe is simply wrong. So the jury needs to see what these kinds of wounds look like, these defensive wounds in various areas of the body so they can understand what is the significance if any of the presence or absence of defensive wounds on both victims in those areas of the body.
MR. SHAPIRO: Your Honor, with regard to the extent of cross-examination, clearly this is an area where the Prosecutor can make inquiry. With regard to the photographs specifically, I think we're going to run into a 352 problem because that will open a door for enormous amounts of potential photographs of all types of wounds on victims who were unrelated to this case, and there is no showing that those wounds as depicted in those photographs have anything to do with the wounds to the victims in this case. So I think the area of examination can be done, but without photographic demonstration with those photographs because I think we are going to be spending an inordinate amount of time then viewing photographs of potential defense wounds which may run into the tens of thousands.
THE COURT: All right. Mr. Kelberg, you propose to use the photographs of 261, 262, 263 and 264?
MR. KELBERG: I think also 260, was that the first one, your Honor?
THE COURT: 260.
MR. KELBERG: Back of the arm of person--
THE COURT: Yes.
MR. KELBERG: --with the arm raised over the head area?
THE COURT: I agree with Mr. Shapiro that the issue--I mean the issue is relevant. But these photographs deal with examples and case histories and multiple other bodies and multiple other cases.
MR. KELBERG: I understand, your Honor. But these are representative of the kinds of defensive wounds one can commonly see in these cases of death by sharp force injuries, and whether we have them or we don't have them with respect to these two victims is extremely important for the jury to see and understand in evaluating whether Dr. Baden's opinion of the struggle is correct or Dr. Lakshmanan's opinion of the struggle is correct; and in particular, with respect to Mr. Goldman, whether he threw a punch or he didn't throw a punch, whether he got these injuries to the back of his hands by flailing backwards and hitting trees or bars or whether he got them from trying to punch the perpetrator, whether that cut in the shoe is really a cut from a knife or is pure speculation on Dr. Baden's part. The jury has no way of putting this into context without some kind of reference to what kind of injuries can one see in the form of defensive wounds when people are killed by sharp force injury.
MR. SHAPIRO: I think your Honor has framed the issue very succinctly, and that is that these are only examples and that when we get into defensive wounds, the position of the Prosecution through their entire eight days of examination has been consistent with, which medically means "Possibly," "Could it have been." And when we get into "Could it have been," we can offer examples for a month as to possible defensive wounds.
THE COURT: Well, I think what Mr. Kelberg is going to say though is, aren't defensive wounds of this particular area commonly found, answer, yes or no; here's an example. Did you see anything like this on either Nicole Brown Simpson or Ronald Goldman. The answer will be no I suspect.
MR. SHAPIRO: And doesn't that give us the opportunity if we so choose to come back with a myriad of examples of photographs showing defense wounds that are consistent and then we have a trial--
THE COURT: Trial by odd ball photograph.
MR. SHAPIRO: Exactly.
MR. KELBERG: Your Honor, I doubt Dr. Spitz would put odd ball photographs in a book that is to be used nationwide.
THE COURT: Well, what I mean by odd ball, I mean a potpourri of different cases of different specific examples of other things that could have happened.
MR. KELBERG: I understand. But I think it's logical to infer that Dr. Spitz uses representative samples of photographs to highlight the kinds of things one commonly sees in the form of defensive wounds with people who are murdered by sharp force injury.
THE COURT: All right.
MR. SHAPIRO: My recollection of Dr. Spitz' book is, there's nothing in there which says these are representative types of injuries and exclude all others, and I think Mr. Kelberg knows that. And then we're getting back away from why an expert is called. An expert is called for the purpose of offering an expert opinion, an opinion that is reasonable to a degree of medical certainty, not speculation. If we want to speculate on defensive wounds, I assure your Honor--and I think your Honor well knows--we could be here for a very long time as we have been in the past with other examples of what could have been, what might have been, what possibly was.
THE COURT: All right. Thank you, counsel.
MR. SHAPIRO: Thank you, your Honor.
THE COURT: All right. These photographs are in black and white. They appear to be illustrative of certain types of defensive wounds. They do have probative value. I am concerned about the amount of time, however, that we're going to involve in using this. Mr. Kelberg, the manner in which I framed the question is the manner in which I expect it to be done here, in other words, three questions per--
MR. KELBERG: Absolutely, your Honor. And that's exactly what I would use the photographs for.
THE COURT: All right. The objection is overruled.
MR. KELBERG: May I approach, your Honor?
THE COURT: You may. All right. Let's have the jury.
(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. The record should reflect that we've been rejoined by all the members of our Friday morning casual jury. Dr. Michael Baden is on the witness stand. Dr. Baden, would you resume the witness stand, please.
Michael Baden, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Good morning, Dr. Baden.
DR. BADEN: Good morning, Judge.
THE COURT: Doctor, you are reminded, sir, you are still under oath. And, Mr. Kelberg, you may continue with your cross-examination.
MR. KELBERG: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS EXAMINATION (RESUMED) BY MR. KELBERG
MR. KELBERG: Good morning again, doctor.
DR. BADEN: Good morning, Mr. Kelberg.
MR. KELBERG: Doctor, when we were last in court questioning you, we were talking about your opinion on how the stomach empties. Do you recall that area of inquiry?
DR. BADEN: Yes.
MR. KELBERG: And just to bring it up to speed again, your basic view is that a person's stomach empties approximately 90 to 95 percent of the stomach volume within two hours of the meal having been eaten; is that correct?
DR. BADEN: Of a normal eating person within a reasonable meal.
MR. KELBERG: And you would find, would you not, from your review of the evidence that Nicole Brown Simpson was a normal healthy person at the time of her death?
DR. BADEN: That's correct.
MR. KELBERG: And same for Mr. Goldman?
DR. BADEN: Yes.
MR. KELBERG: And now, doctor, I offered you an opportunity before we started with the jury to review a transcript of your testimony in the bent case; is that correct?
DR. BADEN: Yes.
MR. KELBERG: Did you have an opportunity to review that?
DR. BADEN: I looked at some of the portions, yes.
MR. KELBERG: And I highlighted a couple of areas that I asked you to take a look at, in particular, dealing with the volume of stomach contents of Joan Bent at the time of the autopsy. Did you look at those areas?
DR. BADEN: Yes. I have--I think so. I mean, I looked at a couple of areas. I just want to see what you highlighted.
MR. KELBERG: May I approach again?
THE COURT: You may.
MR. KELBERG: Let me show you what's page 1180 of the transcript at the bottom. Was that one of the areas you looked at, doctor?
DR. BADEN: I haven't, but I will. A thousand cc, yes, a thousand grams.
MR. KELBERG: And I have another highlighted area, I think it's 1206. Would you take a look at that? 1205. Sorry. At the bottom?
DR. BADEN: Yes. Yes.
MR. KELBERG: Now, doctor, is it accurate to say that in the bent case where you formed the opinion that Mrs. Bent had been killed within an hour of having eaten her dinner rather than what her husband said, that she left about two hours after eating dinner not to be seen again, that you found the stomach volume of the contents of the meal to be about a thousand cc's? Is that correct?
DR. BADEN: That's what was reported in the autopsy, yes.
MR. KELBERG: And you did get that material for your review later on when you were brought into the case, correct?
DR. BADEN: I got some of that material, yes, and I examined some of the stomach contents personally.
MR. KELBERG: And you then later on were asked by the attorney for Mr. Bent, the Defendant, how you would describe a thousand cc meal, and you said it would be on the heavy side, correct?
DR. BADEN: Yes.
MR. KELBERG: Now, Nicole Brown Simpson's stomach volume, according to Dr. Golden's report, is 500 cc's, correct?
DR. BADEN: Yes.
MR. KELBERG: About half the volume that was reported in the bent case; is that correct?
DR. BADEN: Yes.
MR. SHAPIRO: Your Honor, I'm going to object. We went over all of this yesterday, the exact same questions.
THE COURT: I think this is foundational for what we're about to--
MR. KELBERG: It is, your Honor.
THE COURT: All right.
MR. KELBERG: Now, doctor, if in fact Nicole Brown Simpson had rigatoni at the Mezzaluna restaurant and had a salad at the Mezzaluna restaurant, left the restaurant about 8:30 to 9 o'clock, say a quarter to 9:00, stopped eating perhaps by 8:30 and did not have rigatoni after getting home, did not have additional salad after getting home and was killed between 10:15 and 10:30 on that same evening or roughly two hours after she left, if your opinion as to how the stomach empties were correct, a finding of 500 cc's in her stomach would have required her to have eaten a meal of approximately 5,000 cc's; isn't that correct?
MR. SHAPIRO: Objection. Improper hypothetical.
THE COURT: Overruled.
DR. BADEN: You're getting there. That's right. She would have had to eaten a huge amount of food, no. 1. No. 2, you left out one important factor in the bent case, is the state of digestion.
MR. KELBERG: I'm going to move to strike as nonresponsive, your Honor.
THE COURT: Overruled. He can explain his answer.
DR. BADEN: The state of digestion is important.
MR. KELBERG: Doctor, my question to you is, would it have required her to have eaten a meal of about 5,000 cc's for your opinion of how the stomach empties to leave 500 cc's in her stomach two hours after she last ate at the time of her death?
DR. BADEN: No.
MR. KELBERG: 90 percent of 5,000 cc's is how much, doctor?
DR. BADEN: 90 percent would be 4--4500.
MR. KELBERG: And 4500 from 5,000 would leave how much?
DR. BADEN: Yeah. But that's a huge meal. A huge meal doesn't empty in two hours. You're mixing apples and oranges.
MR. KELBERG: Doctor, in the bent case, did you ever testify that a heavy meal does not empty within a two-hour period according to your 90 to 95 percent rule?
MR. SHAPIRO: Your Honor, I'm going to object to Mr. Kelberg badgering Dr. Baden.
THE COURT: Overruled.
DR. BADEN: In the bent case, you're distorting what I said. I relied on the unlack of any digestion of the potato fragments, and that was an important part of my opinion that the food was in the stomach less than an hour. The potato showed no digestion. Page 1187, bottom.
MR. KELBERG: Doctor, my question to you is, you were asked at the bent trial your opinion as to how the stomach normally empties, correct?
DR. BADEN: Yes. I think so.
MR. KELBERG: And referring to page 1180--let me give you the transcript.
DR. BADEN: Thank you.
MR. KELBERG: And you can follow along with me. Under questioning by the Prosecutor, were you asked the following question starting on line 8, page 1180? "Now, doctor, would you tell us or explain to this jury about the digestive process? Once someone consumes food, what happens to that food? "Answer: Yes. In the normal condition, when food is swallowed, taken into the body, within about two hours, the food has undergone preliminary digestion in the stomach and has been moved onto the small intestine so that normally very little food remains in our stomachs after two hours or so. This can be affected by factors such as illness and fright and alcoholism, but is rather an universal manner in which people digest food and how long it stays in the stomach." Did you give that answer in response to that question, sir?
DR. BADEN: Yes.
MR. KELBERG: And, sir, did you qualify that in any way when you listed the factors that may affect the two-hour period by adding the volume of the meal? Did you qualify that answer in any way at that time, sir?
DR. BADEN: Well, can I read--the question was, "Would you tell us what is the basis of your opinion?" I did qualify it, yes.
MR. KELBERG: Sir, my question--
DR. BADEN: My answer to you is, yes.
MR. KELBERG: Did you qualify it in the answer I just read? Did you list that as one of the factors that affects the normal process?
DR. BADEN: The amount of food?
MR. KELBERG: Yes.
DR. BADEN: Yeah. I said in the normal condition. 5,000--five quarts of food is not a normal condition.
MR. KELBERG: You would not expect any human being short of an athlete, a pro athlete perhaps to eat what is 5,000 cc's; isn't that correct?
DR. BADEN: You don't have adult children.
MR. KELBERG: How much is 5,000 cc's?
DR. BADEN: Five quarts.
MR. KELBERG: All right. Doctor--
DR. BADEN: A quart of water--my son drinks a quart of water in two minutes.
MR. KELBERG: Doctor, you described the bent meal of a thousand cc's as a heavy meal; isn't that right?
DR. BADEN: Yes. The thousand cc that's left, yes, a quart.
MR. KELBERG: You did not believe that Nicole Brown Simpson had a 5,000 cc meal at the Mezzaluna restaurant, do you?
DR. BADEN: No. No. I don't think so. No.
THE COURT: Hold on, guys.
MR. KELBERG: I apologize, your Honor.
THE COURT: Both of you, slow down. The jury is only six feet away. They can hear you, Mr. Kelberg.
MR. KELBERG: Thank you, your Honor.
THE COURT: All right?
MR. KELBERG: Maybe I'll move from the microphone.
THE COURT: Why don't we move on. I think we've discussed this point.
MR. KELBERG: I have just a few follow-up questions.
MR. KELBERG: Doctor, in fact, if Nicole Brown Simpson ate at Mezzaluna the rigatoni and the salad, went for some ice cream with her children, came home at around 9:40 or 9:42, made a call to the Mezzaluna restaurant after a call from her mother regarding her missing glasses, the mother's missing glasses, that she was killed between 10:15 and 10:30 without having eaten rigatoni, without having eaten salad, the finding of 500 cc's in her stomach of the food that was described by Dr. Golden would demonstrate that your view of how the stomach normally empties is inaccurate; isn't that correct, sir?
MR. SHAPIRO: Objection to the hypothetical.
THE COURT: Overruled.
DR. BADEN: No.
MR. KELBERG: Dr. Knight does not agree with your view of how the stomach normally empties, does he?
DR. BADEN: Not true. He just summarizes of what a lot of other people say. And I don't know--I haven't spoken to him about it. I've spoken to Dr. Spitz about it, but not to Dr. Knight.
MR. KELBERG: Dr. Spitz you consider a foremost pathologist in the United States?
DR. BADEN: Yes. He's one of the foremost pathologists in the United States. Yes, I would consider that.
MR. KELBERG: And in his book, doesn't he say that if you can recognize identifiable food in the stomach at autopsy, in general, that means the person died within two hours of having eaten the meal, correct? Isn't that what he says?
DR. BADEN: Something like that.
MR. KELBERG: And, doctor--
DR. BADEN: He quotes something like that.
MR. KELBERG: He quotes or that's his statement?
DR. BADEN: I'd have to review it. But there's something to that effect in the book, yes.
MR. KELBERG: May I approach, your Honor?
THE COURT: You may. What page are you referring to?
MR. KELBERG: 31. And I've got it boxed in blue, doctor. Are there quotation marks there, doctor?
DR. BADEN: I'll read. "It has been found by others that stomach contents which are readily identified by naked-eye inspection were usually ingested within a two-hour period." I'd agree with that.
MR. KELBERG: Well, doctor, if in fact at autopsy, you find identifiable food in the stomach and that indicates death within two hours, that would be inconsistent with your view that the stomach empties 90 to 95 percent of it's contents within that same two-hour period, wouldn't it, sir?
DR. BADEN: By the end of two hours, most of the food is out in the normal situation, when people are not emotionally upset, et cetera. We don't know about Miss Simpson's state during that two-hour period. I can not tell you--if you're asking me, I can not tell you from the stomach contents the difference between being killed at 10:30 or 10:40 or 10:50. I have not said that and I would not claim that. There's no way of looking at that stomach contents and determining whether Miss Nicole Brown Simpson was murdered 10:15, 10:20, 10:25, 10:30, 10:40, 10:50. I'm not claiming that and I don't want to have to defend it.
MR. KELBERG: My question though, sir, was, Dr. Spitz' statement about if you can identify food in the stomach, it generally indicates death within two hours--
DR. BADEN: Depending on how much food there is. As I said, we can find pieces of food 20 hours later in the stomach.
MR. KELBERG: Your Honor, could I finish the question, please?
THE COURT: Well, the problem is, I've heard the question now, this is the third time.
MR. KELBERG: All right.
MR. KELBERG: Doctor, can you cite any recognized forensic pathology text which supports your contention that the stomach empties generally 90 to 95 percent of its stomach contents within two hours?
DR. BADEN: Sure. Even the Spitz thing you say is--can I read that?
MR. KELBERG: Sure.
DR. BADEN: Within two hours--if it's still--
MR. KELBERG: No. The question is, can you cite any recognized forensic pathology text which says that the stomach empties 90 to 95 percent of its contents within two hours, the view that you expressed in the bent case?
DR. BADEN: Umm, I would be glad to get you references if you'd like, Mr. Kelberg. I don't have it here with me. I have it--you cited my book that you have in front of--that you gave me to look at last night which says that without criticism.
MR. KELBERG: Your book confessions of a medical examiner?
DR. BADEN: Yeah. Yeah. Yeah.
MR. KELBERG: That's not a recognized forensic pathology text, is it, doctor?
DR. BADEN: It's a description of forensic pathology. It's not meant to be a textbook, but there's been no objection to that in--
MR. KELBERG: Well, that was just a repetition of your own view, wasn't it?
DR. BADEN: That's my view, yes.
MR. KELBERG: I'm asking you any recognized forensic pathology text that supports your view that the stomach empties 90 to 95--
DR. BADEN: I will be glad to get that to you. I don't have it with me.
THE COURT: Wait, wait, wait, doctor. Let him finish speaking and asking the question before you start to answer.
MR. KELBERG: Last question. I'm moving on. What forensic pathology text that is a recognized forensic pathology text supports your view that the stomach normally empties 90 to 95 percent of the stomach contents from a meal within two hours of the meal having been eaten?
DR. BADEN: I will get you articles if you wish. That is a commonly recognized view. And it's my experience. This is my experience of 40 years of looking at stomach contents, is that a normal healthy person, it empties within two hours, 95 percent, most of the stomach contents, and that's my opinion.
MR. KELBERG: I'm sorry--
DR. BADEN: And it's been very valid over the years.
MR. KELBERG: Doctor, for that to be valid, you would need to know in each case--
THE COURT: Counsel, we've already asked that question yesterday.
MR. KELBERG: All right. I'll move on.
MR. KELBERG: Doctor, you said something about examining the socks. Do you recall that?
DR. BADEN: Looking at the socks. I didn't examine--I didn't touch the socks. I looked at the socks.
MR. KELBERG: And Dr. Wolf was with you at the time?
DR. BADEN: Dr. Wolf, Miss Kestler, Mr. Vannatter, Detective Vannatter, Lieutenant Rogers were there, yes.
MR. KELBERG: And Dr. Wolf was taking the notes for you or were you taking the notes or were each taking notes?
DR. BADEN: Dr. Wolf was taking notes.
MR. KELBERG: Your Honor, I have a document that's been provided through discovery that has the page from the imprinted sequential numbering, 1022. May that be marked as People's 582 I think we're at?
THE COURT: 582.
(Peo's 582 for id = document)
MR. KELBERG: May I approach?
DR. BADEN: May I just read from this?
THE COURT: No. We've moved on.
DR. BADEN: We've moved on. Let me just take--because there is something here.
MR. KELBERG: Want a page number?
MR. KELBERG: I'll be glad to let him read it if you want, your Honor.
THE COURT: Let's move on. We've spent enough time with that.
MR. KELBERG: Okay. Doctor, is that one of the notes of the visit that you indicated you and Dr. Wolf used at the LAPD crime lab on June 24th at I believe it's--well, I can't read the time. Let me show you a page and ask--maybe that will refresh your memory as to the time.
DR. BADEN: We began--we arrived about 11:00 A.M.
MR. KELBERG: And does this page refer to the observations of those socks?
DR. BADEN: Yes.
MR. KELBERG: Your Honor, may I ask to put this on the elmo?
MR. KELBERG: And, sir, when you and Dr. Wolf were examining the socks, you were looking for--
DR. BADEN: We didn't examine the socks. We just looked at the socks. We weren't allowed to touch them, pick them up, hold lights to it or to photograph it.
MR. KELBERG: But--
DR. BADEN: Just to inventory it in a sense.
MR. KELBERG: A visual observation is an examination. It may not be a complete examination, but it is an examination, isn't it?
DR. BADEN: Yes. Yes.
MR. KELBERG: And now if we could look at item 13, if Mr. Fairtlough can bring that one into focus. Now, doctor, you see--and maybe Mr. Fairtlough can outline that so we'll have it preserved. Just box in--yeah. Box in item 13. The area that Mr. Fairtlough has just outlined, doctor, is the notation made regarding the socks; is it not?
DR. BADEN: Yes. I believe so.
MR. KELBERG: And what does that say?
DR. BADEN: "No. 13, two dark socks, no analysis yet."
MR. KELBERG: Do you see anything written regarding "No blood observed"?
DR. BADEN: I--we didn't write that down, no. There was no blood observed or else I would have included it.
MR. KELBERG: Well, sir, wouldn't it be important for you to document that in looking at the socks, as far as you were able to see, that you couldn't see blood on them?
DR. BADEN: No.
MR. KELBERG: Doctor--
DR. BADEN: I--I don't document the negatives. I document the positives.
MR. KELBERG: Isn't the negatives sometimes as important as the positive?
DR. BADEN: Can be.
MR. KELBERG: Now, doctor, what does "No analysis yet" refer to?
DR. BADEN: Miss Kestler had told me that no analysis had yet been done on the socks.
MR. KELBERG: And did that--
DR. BADEN: By the Los Angeles Police Department, and we didn't do any further analysis on it.
MR. KELBERG: And did that analysis, as she spoke, was that something you understood to be an analysis looking for things like blood?
MR. SHAPIRO: Objection. Calls for speculation.
THE COURT: Sustained.
MR. KELBERG: What was your understanding of "No analysis yet" as reflected in the notes Dr. Wolf wrote for the two of you?
MR. SHAPIRO: Objection. It's irrelevant, what his understanding was.
THE COURT: Overruled.
DR. BADEN: That no detailed examination had been done.
MR. KELBERG: And--
DR. BADEN: By the LAPD.
MR. KELBERG: For what?
DR. BADEN: For anything. Whatever. When we examine for things, we look for the unexpected.
MR. KELBERG: So you did not do any kind of microscopic examination--
DR. BADEN: I--I'm sorry.
MR. KELBERG: You did not do any kind of microscopic examination of the socks; is that correct?
DR. BADEN: I was not allowed to touch the socks. That's correct.
MR. KELBERG: And they weren't turned inside out for you by anyone at the time you and Dr. Wolf were looking at them with the naked eye?
DR. BADEN: That's correct.
MR. KELBERG: What was the lighting like at the time of your observations?
DR. BADEN: Not very bright. It was a little better than the--better lighting than here presently, but not very bright.
MR. KELBERG: Not what you would describe as the kind of ideal lighting for conducting a close visual examination of something like a dark pair of socks?
DR. BADEN: Yes. That's fair.
MR. KELBERG: There was no high intensity lighting, was there?
DR. BADEN: That's correct.
MR. KELBERG: And high intensity lighting is the kind of lighting that you would like to have when conducting a close visual inspection of an item like black socks, right?
DR. BADEN: That's correct, yes.
MR. KELBERG: Let's see. I think we're done with that. If we could print that out. I don't know if the red lines print out.
THE COURT: Yes. That will be 582-A.
MR. KELBERG: Thank you, your Honor.
(Peo's 582-A for id = printout)
MR. KELBERG: Now, doctor, I wanted to go into this issue of interpretation. Forensic pathologists do interpretation, crime scene reconstruction. That's interpretation; is it not, sir?
DR. BADEN: The criminalist does crime scene interpreta--interpretation. The forensic pathologist examines the body in the context of the crime scene. There's a certain amount of interpretation, but not to the extent that a criminalist would do.
MR. KELBERG: Well, for example, when you offered opinions about the extent of a struggle between Ronald Goldman and any perpetrator or perpetrators, that was interpretation of the findings that the forensic pathologist makes. Isn't that what you do?
DR. BADEN: That's correct. To that extent, yes.
MR. KELBERG: And interpretation by you or any other forensic pathologist to some degree employs simple common sense, doesn't it, sir?
DR. BADEN: Well, includes common sense, but includes mixed with some expertise or else it's no more valuable than common sense.
MR. KELBERG: And logic plays a role in the interpretations that you draw?
DR. BADEN: Yes.
MR. KELBERG: Would you agree that interpretation such as you offered yesterday is more of a subjective process than necessarily an objective process?
MR. SHAPIRO: Objection, your Honor. Calls for speculation.
THE COURT: Overruled.
DR. BADEN: You'd have to give me a--the specific issue you're alluding to. It varies.
MR. KELBERG: Well, doctor, for example, in the science field, the term "Reliability" is familiar to you; is it not, sir?
DR. BADEN: Yes.
MR. KELBERG: And doesn't that mean reproducibility?
DR. BADEN: Yes.
MR. KELBERG: That means--
DR. BADEN: It can mean that.
MR. KELBERG: --if two people are doing some form of testing, if the test is a reliable test, the two people should reach the same conclusion from the same test that is performed by the two of them?
DR. BADEN: It depends whether you're using a very scientific interpretation or a more general interpretation. And when doing experiments, when doing an experiment in a laboratory, reproducibility is--can be equated to reliability. But in common discussion, reliability can have a little different meaning.
MR. KELBERG: Well, I'm talking to you as a scientist, doctor. Do you consider yourself to be a scientist?
DR. BADEN: No. I'm a physician.
MR. KELBERG: Well, isn't a physician a form of a scientist?
DR. BADEN: Art and science to medicine.
MR. KELBERG: Isn't interpretation more an art than a science?
DR. BADEN: Among--in medicine, that's probably true.
MR. KELBERG: And as an art, isn't that suggesting then that the process is subjective rather than objective in the sense that two people can look at the very same set of circumstances and draw different conclusions, not the same conclusions?
DR. BADEN: That's true. That two people--two physicians can look at the same set of circumstances and draw different conclusions, and I guess that suggests a subjectivity to it, yes.
MR. KELBERG: And with subjectivity comes the possibility of bias; isn't that correct, sir?
DR. BADEN: Oh, sure. Yes.
MR. KELBERG: Now, doctor, when you are retained by a Defense attorney in a criminal case, you understand that there are privileges that attach to whatever you do and find such that you may not disclose those findings unless the lawyer authorizes you to do so or through the litigation is required to have that disclosed. Isn't that your understanding, sir?
MR. SHAPIRO: Objection, your Honor. That calls for a legal conclusion that is beyond his expertise.
THE COURT: Overruled.
MR. KELBERG: You may answer the question.
DR. BADEN: Yeah. I'm not--as we--as you showed yesterday, I'm not a lawyer, and that's a complicated question. I know that there are some things that are considered work product or privileges that I'm constrained from talking about, but that goes with Prosecutors also, all lawyers, when I work with Defense attorneys or with Prosecuting attorneys.
MR. KELBERG: Doctor--
DR. BADEN: What that extends to, I would have to ask the attorney as to what I can talk about, what I can't talk about. But usually it doesn't come up.
MR. KELBERG: Doctor, you understand there is a fifth amendment privilege that prevents you from disclosing what your findings are if you're not going to be called as a witness by the Defense when you're retained by the Defense?
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. SHAPIRO: May we approach, your Honor?
THE COURT: No. Sustained.
MR. KELBERG: Doctor, you understand that unless you find favorable findings to a criminal Defendant who retains your services, the likelihood is, you will not be called to the witness stand; isn't that correct, sir?
MR. SHAPIRO: Objection. Calls for speculation.
THE COURT: Overruled.
DR. BADEN: In general, I am aware that if my findings are contrary to the theory of the Prosecutor or the Defendant, they're not likely to call me as a witness, yes. But it works for both sides, not just for one side.
MR. KELBERG: Excuse me, doctor. If your findings are contrary to the view of the Prosecution and you have been retained by the Defendant, it would be logical that you would be called by the Defense attorney just as you've been called here to try and refute the Prosecution theory. Isn't that your understanding?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Sustained.
MR. KELBERG: Doctor, isn't it your understanding--and please listen to the question carefully--your understanding--
MR. SHAPIRO: Objection, your Honor. I think that's improper.
THE COURT: Overruled.
MR. KELBERG: --your understanding that unless--when you're retained by a criminal Defendant's lawyer, unless your findings are favorable or helpful to that Defendant, you will not be called by that Defendant's lawyer to testify at any trial. Isn't that your understanding?
DR. BADEN: That generally is the way it works with all lawyers. With all lawyers.
MR. KELBERG: But, doctor, when you're retained by the Prosecution, isn't it also your understanding that the Prosecution is obligated constitutionally to turn over to the Defendant, the criminal Defendant, your findings even if your findings are not helpful to the Prosecution?
MR. SHAPIRO: Objection, your Honor. That's a question of law and a question of ethics.
THE COURT: Let's not pursue this area.
MR. KELBERG: All right, your Honor.
MR. KELBERG: Doctor, would you agree that if you want to testify in court in a high publicity case, it helps for you to have findings that are favorable to the side that have retained your services?
MR. SHAPIRO: Objection, your Honor. It's argumentative.
THE COURT: Overruled.
DR. BADEN: Could you repeat that, please, Mr. Kelberg?
MR. KELBERG: Your Honor, may I have a moment to try and read it back? I would like the--
THE COURT: Doctor, would you agree that if you wanted to testify in court in a high publicity case, it helps for you to have findings that are favorable to the side that has retained your services?
DR. BADEN: No. 1, I do not wish to testify in court. But if I should have the desire to testify in court, I guess what you say is correct. But I would much prefer not to be here, Mr. Kelberg.
MR. KELBERG: Doctor, are you familiar with a special on HBO, Home Box Office called Autopsy Confessions of a Medical Examiner?
DR. BADEN: Yes, I am.
MR. KELBERG: And how are you familiar with that program?
DR. BADEN: It was a program emanating from the book I wrote that you have in which I narrated. It had to do with a number of my--the cases I was involved with, and HBO made a special about it to demonstrate autopsies and findings.
MR. KELBERG: And, doctor, was there a premier for this special, a special kind of gala presentation?
DR. BADEN: Well, there was some kind of in-house HBO cocktail party when it was--the first night that it was shown. It's been shown many times, but the first night, they had some kind of a cocktail party.
MR. KELBERG: Doctor, would it be fair to say that this special puts you in a very favorable light?
DR. BADEN: I think the HBO program was about cases that I was involved with and was favorable to me, yes, I guess.
MR. SHAPIRO: We have no objection to this document.
DR. BADEN: I cooperated with it.
MR. KELBERG: Well, doctor in fact, the special--
MR. KELBERG: Your Honor, may the--I have a videotape. May that be marked as 583?
THE COURT: For identification purposes at this point.
MR. KELBERG: Yes.
(Peo's 583 for id = videotape)
MR. SHAPIRO: Your Honor, can we also mark the document that Mr. Kelberg--
MR. KELBERG: I'm going to use it, Mr. Shapiro. Trust me.
THE COURT: Proceed.
MR. KELBERG: And I'll ask that one-page document be marked as exhibit 584.
MR. SHAPIRO: If he's going to use the videotape, your Honor, there is a procedure that your Honor--
THE COURT: We're not there yet.
(Peo's 584 for id = document)
MR. KELBERG: May I approach, your Honor?
THE COURT: You may.
MR. KELBERG: Let me show you, doctor, 584. Are you familiar with that document?
DR. BADEN: No, I'm not.
MR. KELBERG: Doctor, would you read to us how the document starts?
MR. SHAPIRO: Your Honor, there is no foundation.
THE COURT: Foundation? Sustained.
MR. KELBERG: You never saw this document until I just showed it to you, doctor?
DR. BADEN: I've never seen that document. I'm familiar with what it says, but I've never seen that document, no. It was not sent to me.
MR. KELBERG: Were you asked to be basically a co-host of this premier, of your HBO special?
DR. BADEN: No. I was there. I was there. They had a--they made a--you know, a fuzz about it. They had a cocktail party and I was there, yes.
MR. KELBERG: Doctor, I believe you said yesterday that perhaps of your total annual income, you said 39- or 40,000 comes from your relationship with the Albany state police, correct? New York state police. Excuse me.
DR. BADEN: Yes. My position with the New York state police, yes.
MR. KELBERG: Part-time position. And about four times that amount is brought in annually from your privately retained cases; is that correct?
DR. BADEN: Yes.
MR. KELBERG: Doctor, was it your expectation that by having this HBO special, it would generate further business for you, sir?
DR. BADEN: No, Mr. Kelberg. It was my expectation that that special would help educate people and the public about what medical examiners do, what forensic pathology is all about and why we need reform in this country, to have a uniform system of forensic pathology investigation that doesn't exist. And that was the main thrust of my involvement with HBO. And we're doing another one because it was very successful. But it was not done because I wanted more business.
MR. KELBERG: Doctor, wasn't the first case that was used the bent case?
DR. BADEN: The bent case I believe was involved, yes. That was one of the cases they referred to with the importance of stomach contents and importance that medical examiners and police, when they go to a scene, they find out what the last meal was, what's in the refrigerator, what's in the stove, what's in the garbage so it can be then compared with the autopsy findings and that the stomach contents should be looked at. In most autopsies in this country, the stomach contents are ignored.
MR. KELBERG: Doctor, my question is, wasn't that the first case that was on the special?
DR. BADEN: I said I don't know. It was in the special. I don't know if it was the first case.
MR. KELBERG: How many times have you watched that special, if at all?
DR. BADEN: Twice. Once. Once at the premier and once afterwards I think.
MR. KELBERG: Now, doctor, case file numbers were given to each of your cases that was described in the special; isn't that correct?
DR. BADEN: Yes.
MR. KELBERG: What was the case file number for the bent case?
DR. BADEN: I don't know.
MR. KELBERG: If it was approximately 500 and something, would that sound right?
DR. BADEN: Whatever it says, it says. That was--the case file numbers was artistic license taken by HBO.
MR. KELBERG: Well, that's what I wanted to ask you. If it said, for example, that it was Baden case file 506, was that in fact a case file no. 506 of Michael Baden?
DR. BADEN: No, it was not.
MR. KELBERG: And you said you've done over 20,000 autopsies, right?
DR. BADEN: Yes.
MR. KELBERG: So with respect to any of the cases that were used, any that was used in the special with a case file number, that was all made up, right?
DR. BADEN: No. I don't save and retain every case--every death I investigate. There were a number of deaths over the years that I've retained because I think they're instructive and formative mostly for the textbook that I'm involved with. But of the 20,000 cases, there may be a few hundred that I think will be informative and the cases and the photographs and the information usable in a textbook.
THE COURT: Let me see counsel without the court reporter for a second.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Proceed.
MR. KELBERG: Thank you, your Honor.
MR. KELBERG: Doctor, yesterday, you were talking about--on direct examination, if I can find my--talking about Dr. Lakshmanan's testimony concerning, as he described it, a mottled area of ecchymosis along the right side of the back area of Nicole Brown Simpson. Do you recall talking about that in your direct examination?
DR. BADEN: Yes, I do.
MR. KELBERG: And, doctor, would it be accurate to say on your direct examination, you said, no. 1, in your opinion, that's not a shoeprint that is present there?
DR. BADEN: I said it's not an ecchymosis, it's not a bruise, no. 1. No. 2, it's not a shoeprint, but it's not even a bruise.
MR. KELBERG: And you said in fact that it was lividity although you didn't use the term "Lividity." Isn't that what you said?
DR. BADEN: Well, I said it was a form of lividity. That is, the postmortem settling of blood in the way the body settles after death, the blood settles after death depending on what the body is lying on.
MR. KELBERG: All right, doctor. Let me read to you from the real time transcript, page 9, and ask if this is what you said in response to Mr. Shapiro's question. Let me just put it in context on line 13. "Question: There was 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? "Answer: I disagree with that conclusion. "Question: And why do you disagree with that conclusion, sir?
"Answer: I disagree with that conclusion because there's nothing in the photograph 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 there's no injury in that area, and the little purple discoloration is that are present that were referred to when--on the boards as a shoeprint, in my opinion to a reasonable degree of medical certainty, is just the way blood settles after death and the variation is in how the body changes after death. "She had been lying 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." Was that your answer, sir?
DR. BADEN: That's my answer. I may be wrong, but I'm consistent. I agree with it a hundred percent.
MR. KELBERG: Now, doctor, lividity is the settling of blood to dependent parts of the body, right, sir?
DR. BADEN: No. It isn't settling of blood. The blood doesn't move after death. What happens, Mr. Kelberg--let me--hear me out for a second.
MR. KELBERG: Doctor, I'm listening, believe me.
DR. BADEN: The blood stays right where it is. The blood doesn't move after death. After the heart stops--and that's why the stab wounds in the lung are significant. After the heart stops, blood stops moving around the body. But the red blood cells settle down wherever they are just as in a blood bank when we give blood. When we give blood in a blood bank, the blood comes out all red. And after a few minutes, the red cells, which are about 50 percent, red cells, white cells, the platelets, then settle to the bottom by gravity. That's what happens after death. The blood settles. It doesn't move.
MR. KELBERG: And, doctor, it settles in the dependent portions of the body, right?
DR. BADEN: It settles all over the body. All over the body when we die, the red cells settle down to the bottom of the blood vessel, and we see it in the dependent portion.
MR. KELBERG: And dependent portion would be the portion which is lower?
DR. BADEN: Lowest to the ground, yes. Yes, sir.
MR. KELBERG: And, doctor, if that finding that you see is lividity on her back and her body had been in that condition from roughly 10:15 or 10:30 until perhaps 10:30 the next morning when the body was moved by Coroner's representatives, you would expect to see this purplish discoloration on the part of her back which is the lowest part of the back, correct, sir?
MR. SHAPIRO: Objection. Misstates the evidence.
THE COURT: Overruled.
DR. BADEN: Yeah. Just as you say, 12 hours later, 10:30 P.M. to 10:30 A.M., Miss Simpson's laying in one position, back up, the lividity would be toward the ground.
MR. KELBERG: Your Honor, I'm going to have a photograph to display. Can we--
MR. SHAPIRO: Your Honor, he's not finished. Has he finished the answer.
DR. BADEN: Comma, but when the body is moved--how's that? But when the body is moved, just as if you took the blood in the blood bank in the--in the--that's being donated, if you turn it upside down, the blood now goes the other way around. So when the body--and this is the problem with waiting so long after the body was found for the autopsy because they waited until the next day, once Miss Simpson's body is put on her back, different position now, brought to the medical examiner's office, put into the cold crypt where--for 24 hours and then during that time, the picture's taken, the lividity shifts. It's a shifting of the lividity. So now we see mottling on the back when it wasn't mottling on the back at the scene.
MR. KELBERG: Doctor, you have previously written that lividity becomes fixed within eight to 10 hours, haven't you, sir?
DR. BADEN: In about that time, lividity becomes fixed, yes.
MR. KELBERG: And if--
DR. BADEN: But it vary--all these things are variable.
MR. KELBERG: And if her body was not moved for 12 hours, wouldn't you expect it more likely that whatever is seen in the form of purplish discoloration in an area of the body which had been a dependent portion at the time the body was moved reflected fixed lividity?
DR. BADEN: Uh, no. When the body is moved--may I just explain? The fixed lividity part of it is, after about eight or 12 hours, the blood vessels start breaking and the blood seeps out of the blood vessels and that--so now that part of it is fixed. It doesn't move around when it shifts. But if the body is put on its back, a secondary lividity develops in time. And I think what we see on Miss Simpson is a secondary lividity consistent with the position she lay in for a long time in the Coroner's office before the photograph was taken.
MR. KELBERG: Now, your Honor, I would like to use the photographs. So I think you need to cut the feed.
THE COURT: Mr. Bancroft.
MR. BANCROFT: Yes, your Honor.
THE COURT: Thank you.
MR. KELBERG: By the way, doctor, did you review the testimony of Mr. Bodziak, the FBI criminalist who testified regarding a shoeprint impression in that area of the back that you claim does not show a shoeprint impression?
DR. BADEN: I didn't review his testimony, but I did ask this morning Mr. Blasier to see if he could pull it up on his little monitor there, and I read a paragraph from it this morning.
MR. KELBERG: Doctor, do you consider yourself a pattern injury analyst with the same kind of background and experience and expertise as Mr. Bodziak?
MR. SHAPIRO: Objection. Compound.
THE COURT: Overruled.
DR. BADEN: No. I considered myself a different kind of pattern injury expert. I would claim expertise on patterns on skin, and I think Mr. Bodziak was in error in his transcript that I read when he referred to some discoloration on the skin as an ecchymosis. An ecchymosis is a bruise in which--due to a blow. There is no bruise due to a blow on the back of Miss Simpson as Dr. Golden clearly states and as the photos show.
MR. KELBERG: Now, first of all, Dr. Lakshmanan said it was a bruise. Isn't that what he said?
DR. BADEN: If he did say that, I think he's wrong.
MR. KELBERG: Well, you were here for that testimony, weren't you, doctor?
DR. BADEN: I was here, yes, but I just don't remember specifics.
MR. KELBERG: And if he used--
DR. BADEN: To the extent that Mr.--that Dr. Lakshmanan--who I have a great deal of respect for. But to the extent that Dr. Lakshmanan says that there's a bruise and an injury to Miss Simpson's back, to that extent, I disagree with that.
MR. KELBERG: Your Honor, I'm going to put up 354.
MR. NEUFELD: Your Honor, may I walk through?
THE COURT: Yes.
MR. KELBERG: And perhaps, doctor, could you step down?
DR. BADEN: May I come up?
THE COURT: You may.
MR. KELBERG: And may I borrow the pointer, your Honor?
THE COURT: You may. Mr. Kelberg, make sure that Dr. Baden's voice can be heard by the court reporter the way you have it situated.
MR. KELBERG: I will, your Honor.
MR. KELBERG: Dr. Baden, showing you from this exhibit CS11, do you see the picture showing the body of Nicole Brown Simpson as it was found by the police?
DR. BADEN: Is this working? No.
MR. KELBERG: I think you just have to keep your voice up.
THE COURT: Keep your voice up.
DR. BADEN: Uh, yes, I do.
MR. KELBERG: And likewise--likewise, CS12?
DR. BADEN: Yes.
MR. KELBERG: Now, doctor, the area that's in question regarding this mottled ecchymosis for lividity is the area along--just under the dress in the area of the right side of the back, is that correct, where I'm pointing now?
DR. BADEN: Yes.
MR. KELBERG: And you would agree, would you not, sir, that this is not the dependent portion of Miss Brown's Simpson's body for the purposes of blood settling lividity showing, correct, sir?
DR. BADEN: That's correct. As the body lays.
MR. KELBERG: And, sir, looking at the photograph CS11, would you agree that the left side of Miss Brown Simpson's face is the dependent portion of her face which is in that photograph?
DR. BADEN: Yes.
MR. KELBERG: And that would be the area also where you would expect to see the lividity as this settling process occurs correct, sir?
DR. BADEN: Yes. To the areas that aren't pressed out by being against the floor. That is, lividity can't develop where there's compression of the skin because compression squeezes out the blood and that would lead to a paleness. There has to be blood in the area to settle.
MR. KELBERG: Now, sir, if in fact your opinion--well, let me withdraw the question. Is it your opinion--are you saying to a reasonable medical certainty, sir, that at the time Miss Brown Simpson's body was moved by Coroner's representative, the lividity was not fixed after this 12-hour period?
DR. BADEN: Umm, what I'm saying is that there's a variation to all of these findings. That's why we don't have a good time clock as for how long somebody's been dead. But after 12 hours, in most people, there would be a fixed lividity in the position that's lowest to the ground as you're showing here.
MR. KELBERG: My question to you, doctor, was, are you saying to a reasonable medical certainty that the lividity 12 hours after the murders was not fixed in the position that Nicole Brown Simpson's body is seen in CS11 and CS12 when the representatives from the Coroner's office moved the body?
DR. BADEN: We can't see the lividity. The lividity is always in the place in the body you can't see because it's always downmost. My recollection is that when the Coroner's representatives moved the body, they said the lividity was fixed, so that when they turned the body over, they would have seen underneath it lividity, redness or purpleness that, if they pressed on it with the finger, it wouldn't go away. But I would assume that's what happened. But--as I recollect.
MR. KELBERG: And if that were the situation, are you saying then, based on that and your knowledge of the process for lividity becoming fixed, that 12 hours after the murder, to a reasonable medical certainty, you believe the lividity was fixed in the positions represented by the body as seen in CS11 and CS12, sir?
DR. BADEN: No. What I'm saying, in most people, it would be fixed. I think in Miss Simpson, if I recollect correctly from the Coroner's notes when he went to the scene, doesn't Miss Ratcliffe also say it's fixed? I believe so. Under those circumstances, yes, I would agree that it was fixed.
MR. KELBERG: And if it's fixed, doctor, then you would not expect to see lividity in this area that we've been talking about, the upper--I'm sorry--the right side of the back below the dress, correct, sir?
DR. BADEN: That's correct. The lividity would be on the bottom, not the top in this position. The problem is, she's now moved into a different position.
MR. KELBERG: But if the lividity is fixed, sir, it will not cause a shifting of the coloration as there can occur if the lividity is not fixed; isn't that correct, sir?
DR. BADEN: No. That's absolutely wrong. That's the problem. When the body is moved, there's fixed lividity in one spot and then a secondary lividity comes up in the other spot. A secondary lividity will always develop if the body is left in the new position long enough as Miss Simpson being put on her back and kept for the next day--the autopsy wasn't done promptly. It was a day later. All that time, she's lying on her back to the opposite--the other way, and a secondary lividity will develop.
MR. KELBERG: Doctor, isn't one way that lividity is used to help people solve crimes, the process that until lividity becomes fixed, if the body gets moved so that--let me use myself as an example. If I were found laying on my back and I had been in a different position when I had been killed, such as on my stomach, if I had been kept on my stomach for 12 hours or more, you would expect to see lividity on my stomach, correct, sir?
DR. BADEN: The way you're putting it, that is, if you were to die on your stomach and 12 or 15 hours later, I come along and I take you and move you to the rooftop and put you on your back, a good detective or District Attorney like yourself would come in and say, hey, there's lividity on the front of the body because that's fixed. Therefore, that person had to die face down. You're absolutely right. And the body has been moved. But it doesn't work the other way. The lividity stays on the bottom, but--on the front of the body, but it now will develop on the back if you aren't found for 12 or 24 hours. Then you get lividity on both sides. But still, it shouldn't be present on the front. And that's where the detective people get involved. Should not be present on the front.
MR. KELBERG: Now, doctor, let me show you from our board 355, the area in question is on photograph b--and I think you're going to have perhaps step around so the jurors can see. The area in question that we were looking at from the crime scene is this area where I'm circling on B9, correct, sir (Indicating)?
DR. BADEN: Yes, sir.
MR. KELBERG: And, sir, your opinion is that's secondary lividity?
DR. BADEN: Yes, sir. Absolutely.
MR. KELBERG: And so if the body were on the back, you would expect to see that lividity across the back, wouldn't you, sir?
DR. BADEN: It depends how the body is laying. You see, Miss Simpson lay on her back in her dress, and the dress in transport got torn, so that the--the part of the dress in the back is now in a different position than it was at the scene. She is laying on her back. She's laying on wrinkled clothing. Also, for the purposes of the photograph at least, there's something propping up her back right in that area in order to take the photograph. Something is propping or some kind of an object is tilting Miss Simpson over so--for the camera purposes. Taking all that into account, there are many different kinds of imprints and settling of blood that can happen in the 24 hours after she's moved. And the bottom line is, when Dr. Golden and all the people who were there doing the autopsy looked at the back, they specifically say there's no bruise there, there's no injury there.
MR. KELBERG: Doctor, did you ever call Dr. Golden to see if that was one of the things he missed along with a number of other things that are not mentioned in his report?
DR. BADEN: Look, I don't want to trash Dr. Golden. He did a fine job as far as I'm concerned because his autopsy is better than most autopsies and better than the autopsy of President Kennedy.
THE COURT: That answer is stricken.
DR. BADEN: I'm sorry, your Honor.
THE COURT: The jury is to disregard. Did you call Dr. Golden?
DR. BADEN: No, I did not.
THE COURT: Next question.
MR. KELBERG: Thank you, your Honor.
MR. KELBERG: Dr. Baden, let me show you from board 352--and in particular, photograph CS13, a facial shot of Nicole Brown Simpson. Do you see that, sir?
DR. BADEN: Yes.
MR. KELBERG: And is there lividity on the face of Nicole Brown Simpson, sir?
DR. BADEN: Not in these photos. You see there's a little bit of redness around the lip. But part of the problem with photographs--and that's why it's important to be doing the autopsy--is, there's no lividity on Miss Simpson that's much--identifiable. And that has to do with cameras and flashes and how the film is developed and things like that. But she looks rather pale and she has some lividity around the left side of her mouth and lip. I can't tell if the lack of lividity is due to the fact that she had a pressure point on the cheek, so there's no blood, or whether it's the camera. But she had some settling of the blood.
MR. KELBERG: Doctor, where you see what appear to be lividity is particularly consistent with how her face is found in the photograph CS11 and CS12; is it not, sir?
DR. BADEN: Well, there's not much of it. You see, normally, if she's laying face down, you get a whole purple color to that side of the face, and that's not really present there.
MR. KELBERG: You don't believe there's a whole purple color on the whole side of Nicole Brown Simpson's left side of the face?
DR. BADEN: I think there's some around the lip area. A little bit. A little bit. It's hard--a little bit.
MR. KELBERG: Well, doctor, if in fact that is lividity found where you would expect to find it given how her body was found at the crime scene, wouldn't you agree that it makes it far less likely that what you say is lividity that is seen in an area that was not a dependent part of the body as the body lay at the crime scene is simply wrong?
DR. BADEN: No. I disagree. I think what we're looking at in the back is a secondary lividity. It didn't happen at the scene. It happened while she was on her back in the Coroner's office for 24 hours or so.
MR. KELBERG: Doctor, did you ever see these photographs that were used during the course of Mr. Bodziak's testimony, 399?
DR. BADEN: No, I did not.
MR. KELBERG: And, sir, I gather then whatever paragraph you may have read of Mr. Bodziak's testimony did not include his analysis that he did as he used these photographs in his testimony?
THE COURT: Mr. Kelberg, you're going to have to move--
MR. KELBERG: I know. I'm trying to--
THE COURT: Mr. Lynch, would you assist Mr. Kelberg?
MR. KELBERG: Thank you, your Honor. And I apologize.
DR. BADEN: I did not read that testimony. But to the extent that it's based on his interpretation that those are bruises, he's wrong.
MR. KELBERG: And Dr. Lakshmanan's wrong?
DR. BADEN: Yes. Dr.--we're looking at the same photos, and Dr. Golden in this instance is correct.
MR. KELBERG: Now, you say Dr. Golden specifically said there was no bruising in that area of the body; is that--
DR. BADEN: As I recall, he said there's no injury. Injury includes bullet wounds, stab wounds, cut wounds, bruises, ecchymosis, black and blue marks, all included in the term "Injury."
THE COURT: Mr. Kelberg, can he resume the witness stand, please?
MR. KELBERG: Yes. I think so. And then I'll--
DR. BADEN: Thank you. Sorry.
THE COURT: All right. Both of you take a deep breath and slow down.
MR. KELBERG: I'm trying to get him out of here by noon, your Honor.
DR. BADEN: Thank you, sir.
THE COURT: Proceed.
MR. KELBERG: Thank you, your Honor. May I approach?
THE COURT: We'll break at 10:30.
MR. KELBERG: Doctor, let me show you from page 3 of Dr. Golden's autopsy report on Nicole Brown Simpson--
MR. KELBERG: I forget the exhibit number. I'm sorry, your Honor, but I think it will be self-evident from a review of the transcript.
THE COURT: We've seen several pictures of it.
DR. BADEN: Yes, sir.
MR. KELBERG: And in that, he is describing: "No recent traumatic injuries are noted on the chest or abdomen, tan lines are seen on the lower abdomen, bathing suit, the genitalia are that of adult female with no gross evidence of injuries, examination of the posterior surface of the trunk--" and that's what we're talking about, correct, sir?
DR. BADEN: Yes, sir.
MR. KELBERG: "Of the posterior surface of the trunk shows some excoriations compatible with postmortem injuries on the upper back, right side, on the medial aspect of the right scapula and on the lateral aspect of the right scapula compatible with that of insect bites." And then he goes to talk about the scapula, and he says: "Otherwise, the lower back and the remainder of the posterior aspect of the body shows no evidence of recent injury." That's what you're referring to, correct?
DR. BADEN: Yes, that's what I was referring to.
MR. KELBERG: And in reviewing Dr. Golden's autopsy protocol, did you find that Dr. Lakshmanan did, that there were numerous errors as to findings and omissions?
DR. BADEN: Uh, I don't--I didn't find as many errors as--I don't consider the errors the same as Dr. Lakshmanan did. I think the errors were different kinds of errors, not responding to the scene in a timely fashion, et cetera. But I don't consider a 16th of an inch difference on a stab wound an error.
MR. KELBERG: Well, sir, did you find from listening through the testimony of Dr. Lakshmanan that Dr. Golden failed to record a number of injuries that were in fact documented by photographs?
DR. BADEN: Yes. Minor injury--minor nature I think.
MR. KELBERG: Well, sir, if he failed to do that, isn't it also reasonable to infer that his recitation of no recent trauma to the posterior trunk may in fact be another mistake that he made?
DR. BADEN: No. I don't think it's fair to infer that. It doesn't look like a bruise to me.
MR. KELBERG: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. KELBERG: Doctor, you said something about the dress of Nicole Brown Simpson being torn during transport?
DR. BADEN: The dress was torn between the crime scene and its collection at the Coroner's office, yes.
MR. KELBERG: Well, sir, what is your source of information for that?
DR. BADEN: When Dr. Wolf and I examined the dress in the Coroner's office, the--the catch, what do you call it, the place where the straps are--come together was torn.
MR. KELBERG: Did you review Detective Lange's testimony that he gave earlier in this trial regarding the condition of the dress?
DR. BADEN: No.
MR. KELBERG: If he testified to this jury that the dress was already torn at the crime scene, that would be inconsistent with your understanding of how the circumstances occurred for that dress to be torn, correct, sir?
DR. BADEN: No. Because the photographs that you just showed show the clasp--I'm sorry. I forget words. The clasp on the dress in the photos you showed is intact. When we examined the dress at the Coroner's office, the clasp was torn. Now, I--that's the only part of the dress I'm referring to.
MR. KELBERG: All right. You're not referring to the rip in the zipper area?
DR. BADEN: No. No. I'm just referring to the clasp. And the reason the clasp is important, because that can kind of come down to the back area, and if she lay on the back area, that could cause indentations or marks. And there were other marks on the back, you know, indentation marks that you showed to me.
MR. KELBERG: Doctor, yesterday, you also were asked questions by Mr. Shapiro regarding contusions, the brain contusion in particular. Do you recall that testimony, doctor?
DR. BADEN: Yes, Mr. Kelberg.
MR. KELBERG: And you were asked by Mr. Shapiro on page 13--I'm sorry--page 14 of the real time transcript, question beginning on line 10: "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?" And your answer was: "That's correct."
DR. BADEN: Yes. I agree with that.
MR. KELBERG: And so this is an area where you would not want to give a possibility opinion because it would be, in your opinion, speculative and misleading to the jury to do so because you could not offer an opinion to a reasonable medical certainty; isn't that correct?
DR. BADEN: No. Not quite. What I tried to say was that that brain contusion in and of itself doesn't tell us whether somebody loses consciousness or not--consciousness or not. There's a bruise to the head. If in conjunction with other evidence at the scene, there's evidence that the person lost consciousness, then that could be a reason for it. At the same time, if we knew what part of the brain that bruise was, we'd have a better sense of whether it was near a vital structure or not. And we don't know that because it was not observed at the time of the--of the autopsy.
MR. KELBERG: There is an addendum in which Dr. Golden identifies the area that he removed from the brain where that bruise was seen; isn't that correct, sir?
DR. BADEN: Yeah, but that's--that's not reliable I think because he didn't--he thinks he remember--see, he didn't remember it the time he dictated. And then what, 10 days later or 20 days later, when it's pointed out to him, he says, well, I have a recollection it was from the right side of the--that's possible, but it's either right side or left side. So, you know, it's 50 percent accuracy.
MR. KELBERG: Doctor, does that reflect that Dr. Golden did an excellent job at the autopsy?
DR. BADEN: No. I didn't say--he didn't do an excellent job, no. He--there are a number of deficiencies, but I--I think that not everything he observed is wrong, Mr. Kelberg.
MR. KELBERG: Now, doctor, so you did say that you could not offer an opinion with a reasonable degree of medical certainty whether or not the contusion to the brain that is seen in that photograph, which we can bring out if needed, would cause unconsciousness for Nicole Brown Simpson?
DR. BADEN: That's correct, yes.
MR. KELBERG: But you also were asked earlier by Mr. Shapiro the following; were you not? And let me get the page number. 8, starting on line 17: "Question: So is it your opinion, doctor, that the contusion you discovered in the tissue at the Coroner's office of Nicole Brown Simpson's part of the brain, that that injury that caused that did not result in her being unconscious?
"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 the neck at the time that she forcefully bled from the carotid artery, that--" and I can't make it out. The word appears to be "That were automatic." "--would indicate there was not unconscious on the ground, but at least somewhat higher here." You were referring to the position of her head vis-à-vis the time when the last incise stab wound was inflicted to the neck. Isn't that what you wear talking about, the position of the head?
DR. BADEN: Yes.
MR. KELBERG: That position of the head has nothing whatsoever to do with at the time she's in that position you believe she was in, she was conscious or unconscious, does it, doctor?
DR. BADEN: It does have a bearing on it because if she had lost consciousness and was unconscious lying on the ground--and then we had a visual image, an awful image of the perpetrator coming over, grabbing her hair from behind and cutting her throat while on the ground--that would be consistent--that would be indicative if she was unconscious lying on the ground. But then the blood on the steps wouldn't match. Her neck had to be--Miss Simpson--higher up than lying on the ground. And if her neck were higher up, if she were bent over or if she went on her knees or if she was struggling, that would indicate that she was conscious. So that's how I was trying to correlate, the bruise on the brain would be more consistent with unconsciousness if she was lying flat when the last cut was given to her neck. In my opinion, when the last cut was given, she was higher up, and that indicates she was not conscious.
MR. KELBERG: Doctor, is it your understanding that a dog went through--
DR. BADEN: That--that she was--that she was conscious--that she was conscious. I'm sorry.
MR. KELBERG: Is it your understanding that a dog may have come through the crime scene and contaminated the pattern of blood that may have existed at the time the killings occurred?
MR. SHAPIRO: Objection, your Honor. Assumes a fact not in evidence.
THE COURT: Sustained.
MR. KELBERG: Doctor, a person could be unconscious and laying on the steps at the same time; isn't that correct?
DR. BADEN: In general. A person could be, yes.
MR. KELBERG: And unconsciousness doesn't mean that there's no blood pressure, does it, sir?
DR. BADEN: No, no. You could have blood pressure and be unconscious. Certainly.
MR. KELBERG: And do you recall Dr. Lakshmanan's testimony regarding that last fatal stab incised wound that he thought it significant that there were no additional cuts along the margin of the wound, indicating that Nicole Brown Simpson was incapacitated at the time that that injury was inflicted because if she were not, you would expect her to struggle in some fashion to avoid the obvious consequences of that injury being inflicted. Do you recall that testimony?
DR. BADEN: I recall that testimony. I think it's just wrong. That's wrong. Most homicidal cut wounds to the neck are single slices or double slices without any kind of marks around it. I mean the usual homicidal cut wound to the neck is--with struggle is just a slice in the neck and it's--
MR. KELBERG: Well, doctor, how many--
DR. BADEN: And you don't get hesitation wounds around homicidal cut wound marks.
MR. KELBERG: Doctor, how many of those--first of all, do you rely on any study of unconscious people who are killed by sharp force injuries to support your opinion?
DR. BADEN: Mr. Kelberg, as a forensic pathologist, I have to include all of what I know, my training, my experience, my--what--my reading. Not every--human beings are not able to be studied like worms or something. We can't do controlled studies of feeding somebody and then killing them--of a human. We can't do controlled studies of cutting people's necks. This is my experience as a forensic pathologist. And I don't think anybody's done--necessarily done a study, but certainly there's been lots of papers written about multiple cut wounds in suicides. But I--I know of none that say there's multiple cut wounds in a homicide when the person struggles.
MR. KELBERG: In a suicide, the person is going to be conscious in order to inflict the wound, right?
DR. BADEN: Yeah, but it's a different mindset. The person is conscious, yes, and is gradually getting up nerve to make the fatal cut. So there are hesitation wounds. But there are no hesitation wounds in homicides in the normal course.
MR. KELBERG: Your Honor, I was going to move to a different area. Does the Court wish to take a recess?
THE COURT: Let's do that. All right. Ladies and gentlemen, we're going to take our mid morning recess at this time. Remember all of my admonitions to you. We'll take about 15 minutes. Dr. Baden, you can step down. Let me see counsel without the court reporter.
(A conference was held at the bench, not reported.)
(Recess.)
(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. Defendant is again present before the court with counsel. The jury is not present. Counsel, we've resolved the issue regarding the videotape?
MR. KELBERG: We have, your Honor.
THE COURT: All right. Let's have the jury, please. Doctor, why don't you resume your chair in the witness stand. How's your water supply?
DR. BADEN: Very good. Fresh supply.
(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. Let the record reflect that we have been rejoined by all the members of our jury panel, that Dr. Michael Baden is on the witness stand undergoing cross-examination by Mr. Kelberg. And, Mr. Kelberg, you may conclude your cross-examination.
MR. KELBERG: I'm going to do my best, your Honor. Good morning again, ladies and gentlemen and Dr. Baden.
THE JURY: Good morning.
MR. KELBERG: Dr. Baden, with the Court's permission, I would like you to step back to the easel.
THE COURT: Is that 352?
MR. KELBERG: 352, your Honor.
DR. BADEN: May I, your Honor?
THE COURT: Yes, doctor.
DR. BADEN: Thank you.
MR. KELBERG: And, doctor, you were talking yesterday about--you used the term "Cluster," did you not, to refer to four sharp force injuries to the left side of Nicole Brown Simpson's neck?
DR. BADEN: Yes, sir.
MR. KELBERG: And you said that they are oriented differently; is that correct?
DR. BADEN: Yes.
MR. KELBERG: Are in fact the last two, if arbitrarily we say no. 1 is the one closest to the ear and no. 2 is the next one down towards the bottom of the photograph, no. 3 the one below that and no. 4 the one below that, are 3 and 4 oriented the same way, sir?
DR. BADEN: I can't tell without reapproximating the edges because I can't tell which side is sharp and which side is blunt or if both sides are sharp from that photograph alone.
MR. KELBERG: Well, did you review Dr. Golden's autopsy report in which he describes the sharp and blunt ends?
DR. BADEN: I would have to look at it again.
MR. KELBERG: Well, do you have it with you, sir?
DR. BADEN: Yes.
MR. KELBERG: If it will expedite matters--and you want to stand there for just a second? Thank you.
DR. BADEN: I'll put the pointer down.
MR. KELBERG: And, doctor, let me show you beginning on page 5--
MR. SHAPIRO: Your Honor, may I look at that, please?
MR. KELBERG: --of the autopsy report--again, I don't have the number--on to page 6. Doctor, is that the area of the report that deals with those stab wounds?
MR. SHAPIRO: Can I just have a moment, Mr. Kelberg, please?
MR. KELBERG: So does Dr. Baden. I think he needs that too.
MR. SHAPIRO: May we both have a moment then?
(Brief pause.)
DR. BADEN: Yes, I've read it.
MR. KELBERG: And does Dr. Golden in fact indicate the position of the sharp and blunt ends?
DR. BADEN: Yes.
MR. KELBERG: And what is the position of the sharp end of the--for the lowest one?
DR. BADEN: The sharp end is--
MR. KELBERG: To the right?
DR. BADEN: Just opposite the one on top of it.
MR. KELBERG: All right. When you say--doctor, let's start with item 4, injury 4, lower one of these four. Do you see that, doctor?
DR. BADEN: Yes. No. 4 as indicated here (Indicating).
MR. KELBERG: And on that one, which is described by Dr. Golden as the sharp end?
DR. BADEN: The side toward the east is the short end according to what Dr. Golden says.
MR. KELBERG: And which side is the blunt end then?
DR. BADEN: There's a blunt end going toward the front of the body.
MR. KELBERG: So from just left to right of the photograph, the blunt end is to the left side of the photograph, the sharp end is to the right side of photograph B18, correct, sir?
DR. BADEN: Yes.
MR. KELBERG: Now, if we go to the one above that, sir, we'll call it stab wound no. 3, how does Dr. Golden describe the sharp and blunt ends of stab wound no. 3?
DR. BADEN: He describes it similarly.
MR. KELBERG: What does he describe as the sharp end?
DR. BADEN: Umm, the sharp end going toward the ear.
MR. KELBERG: And the blunt end?
DR. BADEN: Going toward the front of the neck, although this doesn't quite have the same--it doesn't look that way the way it is. However, I haven't seen it reapproximated, but he describes both sharp ends going toward the ear. And of course, if he had photographed it and done it the way Dr. Spitz suggests, then I can make an independent judgment. If you're asking me to adopt what Dr. Golden says, he describes both of these as--as--to go--the sharp end going towards the back.
MR. KELBERG: And if his description is accurate, then those two stab wounds are oriented in the same direction; are they not?
DR. BADEN: Yes. Those two--if what he says is correct, those two are oriented in the same direction.
MR. KELBERG: And incidentally, just in looking at the photograph, do you see what appears to be a sharp end with respect to stab wound no. 4, sir?
DR. BADEN: 4 is more suggestive than 3.
MR. KELBERG: Does that mean that you appear to see a sharp end to the right side of stab wound no. 4?
DR. BADEN: I can't see it, but I'm trying to visua--I'm trying to visualize it with the skin reapproximated, and my sense of seeing stab wounds before is that if this were reapproximated, I think there'd be a sharp end toward the ear. It doesn't look that way to me with no. 3, but I can't--I will adopt what Dr. Golden says. Dr. Golden says both of these have dull ends to the front and sharp ends to the back.
MR. KELBERG: And if that's the case, those two could be inflicted at basically the same time with Nicole Brown Simpson under some form of control; isn't that correct, sir?
DR. BADEN: There's no suggestion of control. There's just a suggestion of two rapid stab wounds that could be done rapidly with the lower one going much deeper than the upper one. They're going to different depths.
MR. KELBERG: Doctor, isn't it of any signifi--is it of any significance to you, doctor, that you have two stab wounds close together and which are oriented in the same direction in assessing whether or not the victim was able to move at the time those wounds were inflicted?
DR. BADEN: Not from just two. I mean, in the course of a struggle, two stab wounds can be inflicted during motion. If all four were in the same spot, the same depth, the same orientation, it would be more of a--two don't make up a cluster.
MR. KELBERG: Well, how about stab wound no. 2? In fact, that's an incise wound, isn't it, sir, because its depth--no. 2 is the small one, doctor.
DR. BADEN: Go ahead.
MR. KELBERG: Its depth is not as great as its length. It's very superficial, isn't it, sir?
DR. BADEN: Yeah. You can't say that it--that's an incise wound. That could be a tip of a knife going in.
MR. KELBERG: By definition, an "Incise wound" is one where the injury on the skin surface is greater than the depth of the penetration; isn't that correct, sir?
DR. BADEN: If it's long enough. All puncture--what you're saying is, all puncture wounds with--with screwdrivers, with ice picks, according to your definition, would be--could be called incise wounds. No. I think this is a puncture, that it could be a cut or could be a stab.
MR. KELBERG: It's a superficial wound, whatever you want to use as a term to describe it; isn't that correct, doctor?
DR. BADEN: He doesn't indicate how deep it goes, but it seems to be--doesn't go very deep. So you can't--it could be the tip of a knife.
MR. KELBERG: And so from that, you can not tell which may be the sharp end and which may be the dull end for that particular injury, correct, sir?
DR. BADEN: Well, if it were reapproximated and the tip of a knife--some knives, you can tell a sharp and a blunt and some you can't because some knives come to a tip with a blunt edge and some knives come to a tip with both edges being sharp.
MR. KELBERG: Now, doctor, you can not exclude, can you, to a reasonable medical certainty that injury 2 is in fact a stab wound inflicted with the knife in the same orientation as 3 and 4, can you, sir?
DR. BADEN: Uh, not from what I see. That it could be a tip of a knife, and I can't tell.
MR. KELBERG: So it is consistent with the physical findings that you could have three of these stab wounds along that left side of the neck being in the same orientation with respect to the knife and the neck at the time each of them was inflicted, correct, sir?
DR. BADEN: Theoretically possible. But usually if a person is not moving, the idea of a controlled situation that you raise, if the person is not moving and the perpetrator and the victim staying the same position for the three stab wounds, then you'd expect them to be similar in width, they'd be--the knife would go in in similar depth in all three. The fact that all three are so different in size suggests that the weapon goes in, if it's the same weapon--it could be two different weapons--would go in at different depths, and that's against--that part of it would be against the control wound.
MR. KELBERG: Doctor, did you examine all of the autopsy materials, including the photographs, to assess the kind of knife which could inflict each sharp force injury identified?
DR. BADEN: Could you repeat that? The kind of knife?
MR. KELBERG: Yes. For example, a single-edged knife, a double-edged knife?
DR. BADEN: Yes. Yes.
MR. KELBERG: A serrated knife?
DR. BADEN: Yes.
MR. KELBERG: Doctor, are you telling this jury to a reasonable medical certainty that a single single-edged knife approximately six inches long tapering at the tip could not have caused all of the sharp force injuries seen in both Nicole Brown Simpson and in Ronald Goldman?
MR. SHAPIRO: Objection to the form of that question to the word "Could." The doctor's already explained the meaning of that word.
THE COURT: Overruled.
DR. BADEN: Depending on the shape of the knife. A knife with certain kinds of characteristics that comes to--that's partly double edged and partly single edged could cause the injuries in both persons. However, there are lots of different kinds of knives that can cause it also. One can construct a knife that could accommodate all the different kinds of stab wounds, if what--if that's the question you're asking me.
MR. KELBERG: Doctor--
DR. BADEN: But it would not be a usual knife.
MR. KELBERG: Doctor, would a single-edged knife six inches long--you heard Dr. Lakshmanan's testimony, didn't you, about the kind of knife that in his opinion could have caused all of the sharp force injuries? Do you recall that testimony?
DR. BADEN: There's a lot of--eight days of testimony. I recall much of it.
MR. KELBERG: Well, what do you recall with respect to his opinion as to the kind of single-edged knife which could have caused all of the sharp force injuries received by Nicole Brown Simpson and Ronald Goldman?
MR. SHAPIRO: Objection. Irrelevant, what he recalls.
THE COURT: Overruled.
DR. BADEN: I don't recall the specifics of what Dr. Lakshmanan said. Umm, I think he said that there was a single knife six inches long, single-edge could cause it. That's possible. That's possible.
MR. KELBERG: All right. Doctor, my question to you is, in your opinion, are you saying to a reasonable medical certainty, that a single single-edged knife approximately six inches long with tapering at the tip and the width and depth of the blade as described by Dr. Lakshmanan could not have caused all of the sharp force injuries? Are you telling that to this jury?
DR. BADEN: Trying to understand your question. I think that a knife in a certain construction with certain kinds of double edges at the tip, at the distal one inch with double edge could conceivably cause those injuries, yes. Yes.
MR. KELBERG: Doctor, are you saying that the kind of knife described by Dr. Lakshmanan, tapering at the tip, approximately six inches long, single edged with the other dimensions of width and depth as he described could not to a reasonable medical certainty have caused all of the sharp force injuries seen in the photographs and described in the autopsy reports?
MR. SHAPIRO: Objection. Misstates the evidence.
THE COURT: Overruled.
DR. BADEN: What I'm trying to say, Mr. Kelberg, is, I don't recall the measurements that Dr. Lakshmanan gave. But what I'm saying is that a knife could be configured with a certain width, a certain thickness, a certain blunt edge, sharp edge, double edge in some--it has to be double edge in the distal portion of it--could be configured that could account for all of the different stab wounds and cut wounds.
MR. KELBERG: Doctor, did you--you took copious notes, didn't you, of Dr. Lakshmanan's testimony?
THE COURT: All right. Mr. Kelberg, let's move on.
MR. KELBERG: Doctor, did you find from your review that this stab wound no. 4 could only have been inflicted with a single-edged knife, not a double-edged knife as Dr. Lakshmanan testified?
DR. BADEN: I can't say that because I don't--this kind of a stab wound, no. 4, could be inflicted by millions of different knives that are in existence, and if it were--the edges were approximated and a photograph were taken so that other--others could look at it--this is trust me. You're saying trust what somebody observed--yes, it's--it's possible that that's the way you say it. But I'd have to adopt and agree with things that were seen by other people that I can't see.
MR. KELBERG: Well, Dr. Golden identified this with a blunt end and sharp end, no. 4, correct?
DR. BADEN: That's what he said.
MR. KELBERG: And if it's a blunt end and a sharp end, it can only be a single-edged knife; isn't that true, doctor?
DR. BADEN: Umm, probably. There are exceptions. But probably. And--but part of it also is how deep it went. See, in this side of the neck, the spine bones are very--are very--near the surface (Indicating), so that a stab wound that went into--if these are all the same knife, this goes in a lot deeper than the top two and it should have hit bone, it should have hit the cervical spine, and an x-ray would have been very valuable in making sure--the only way to know if--the knife it is is if the tip of the knife broke off in the spine, and that just wasn't done.
MR. KELBERG: Doctor, did you find that the two chest wounds to Ronald Goldman were wounds which are consistent only with a single-edged knife as Dr. Lakshmanan also testified?
DR. BADEN: Umm, I'd have to look at that. I think that there were single and double and a blunt edge. So then it would be a single-edged knife.
MR. KELBERG: All right. Doctor, before I move to that, I want to ask you if you agree with Dr. Lakshmanan's testimony that whether or not the stab wound no. 1, stab wound no. 3, stab wound no. 4 along the left neck of Nicole Brown Simpson, whether any one of those injuries actually struck the left carotid or left internal jugular vein, one would expect significant bleeding nevertheless just from the depth of those stab wounds as described by Dr. Golden in his report. Do you recall that testimony?
DR. BADEN: I recall that Dr. Golden dictated that the left internal jugular artery was cut through. It transected. That's--I can't see that.
MR. KELBERG: Well, actually, didn't he say that there is an overlap between the area of path or 1, 3 and 4 and the area of pathway for the major stab incise wound that we talked about earlier today? Isn't that what he actually said in his report?
DR. BADEN: Yeah. He says that there's an overlap of some of the stab wounds. But on the photographs that you have before the jury, there doesn't appear to be an overlap.
MR. KELBERG: Incidentally--
DR. BADEN: But maybe there's an overlap underneath the skin. But usually by "Overlap," there'd be a cut wound through the left carotid artery and then stab wound through the left carotid artery. If this--if the major cut here, if the major cut here went into the carotid artery, it has to sort of go underneath the skin toward the carotid artery, which is unusual (Indicating).
MR. KELBERG: Doctor, in your career, how much money have you made when you reviewed cases where you only had photographs and materials on paper and not the actual autopsy to review it?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Overruled.
DR. BADEN: There are many cases. Most cases in private consultation that forensic pathologists look at, we look at photographs and documents and dictated reports.
MR. KELBERG: My question was, how much money have you made in your career from doing those cases, sir?
MR. SHAPIRO: Objection. Irrelevant.
DR. BADEN: I have no--
THE COURT: At this point, yes.
MR. KELBERG: Doctor, in the Boggs' case, you were relying on a photograph to differentiate a color suggesting cyanosis from a color suggesting lividity. You relied on such a photograph, didn't you, sir?
MR. SHAPIRO: Objection, your Honor. It is beyond the scope of direct.
THE COURT: Overruled.
DR. BADEN: That was one of the--one of the many factors I relied on. I also relied upon the observations of people who responded--first responded who said he was blue, and the blueness was in the front of his body and he's lying on the back of his body, just what you pointed out.
MR. KELBERG: And, doctor, in that testimony, you never were--you never mentioned concerns with the colorimetry spectrum, for example, that it may not actually reflect the colors of the people depicted or person depicted, did you, sir?
DR. BADEN: Mr. Kelberg, you are misinformed. Mr.--the detective, Mr. MacKenzie and Detective Perkins, who were the people who investigated that case, who presented it for your office made 30 different reproductions from the one single negative to see all the different variations in color that occurred when the negatives develop differently. Part of the problem that we addressed, Mr. MacKenzie and Mr. Perkins addressed, you take a negative like this and you can develop it in 30 different ways to show different patterns of color on the skin; and we did that at great--great time and effort in the Boggs' case.
MR. KELBERG: Did you do that in this case for Mr. Simpson, sir?
DR. BADEN: I didn't do that, no.
MR. KELBERG: If you had concern about the color presentation, sir, you had access to the negatives, didn't you?
MR. SHAPIRO: Objection, your Honor. That assumes a fact not in evidence.
THE COURT: Overruled.
MR. SHAPIRO: May we approach, your Honor, on that issue?
THE COURT: Overruled.
MR. SHAPIRO: Your Honor, that's very important.
THE COURT: Overruled. Proceed.
MR. KELBERG: You can answer the question.
DR. BADEN: I didn't have access to negatives.
MR. KELBERG: Do you make a request that you have the negatives reproduced with varying shades of color to assist you in your review?
MR. SHAPIRO: Your Honor, may we approach on this?
THE COURT: Overruled.
DR. BADEN: I didn't and I didn't think it was necessary. It wasn't an important factor.
MR. KELBERG: So when Mr. Shapiro was questioning Dr. Lakshmanan about the color of the photographs, in your opinion, that was irrelevant from the standpoint of Dr. Lakshmanan's ability to evaluate these photographs. Is that your testimony?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Sustained.
MR. KELBERG: Doctor, let me keep you here, if I could, please. Let me ask Mr. Lynch to turn this--I think we're going to--going back to 355 I--354, doctor, as I understand your testimony regarding this unconsciousness or lack of unconsciousness, you are relying upon the blood that is seen on the step above the body, is that correct, where you believe Miss Brown Simpson's head must have rested?
DR. BADEN: The--I'm relying on the blood on the step and on the ris--on both risers.
MR. KELBERG: And the riser being the riser that would go from the walkway to the first step and the riser that would go from the first step to the second step; is that correct?
DR. BADEN: Yes, sir.
MR. KELBERG: And the riser, we can see the bottom of the riser in the photograph CS11 at the top of that photograph, correct?
DR. BADEN: You see a little bit of it, right. Correct.
MR. KELBERG: Now, doctor, assume hypothetically that Nicole Brown Simpson was struck on the back of the head in the right parietal area, temporal parietal area where Dr. Golden says he saw the contusion to the brain, that she was stabbed four times as indicated along the left side of the neck in the photograph we were just looking and that she was then disabled and bleeding from those wounds with her head in the position of the second--the first step above the walkway and that the perpetrator then moved from Nicole Brown Simpson to deal with Ronald Goldman and then came back to inflict what you and Dr. Lakshmanan agree is the last sharp force injury that killed her, the stab incise wound to the neck. Do you understand that hypothetical, doctor?
DR. BADEN: I'm trying to, yes.
MR. KELBERG: Doctor, from the stab wounds 1, 3 and 4 to the left side of the neck, that can produce the blood that you see on that step; can it not, sir?
DR. BADEN: I would doubt it. I would doubt it. It's possible.
MR. KELBERG: Well, doctor--
DR. BADEN: In your terms, it's possible, but I would doubt it.
MR. KELBERG: Well, doctor, you say that an expert should not offer an opinion that you can not give to a reasonable medical certainty. Is it your testimony that you can not offer an opinion on this to a reasonable medical certainty?
DR. BADEN: Mr. Kelberg, I'm saying that the expert is at your mercy. The expert--I have to answer your questions. I think it is wrong if all that is asked is possibilities, because then everything I say is yes, everything I say, yes, it's possible. If you're asking for an opinion, I have to go more than just a one percent possibility. And what I'm saying here is that I'm not persuaded--there's no evidence that the force--the three stab wounds on the left side of the neck cut through any vital structures. That's not--that's not indicated.
MR. KELBERG: Well, didn't you--
DR. BADEN: If--if there were--if there were cut wounds to the veins or arteries, there would--there could be bleeding, yes, on that side of the neck.
MR. KELBERG: Well, didn't you originally indicate you thought Dr. Golden in his report said that one or more of those three sharp force stab wounds to the left side of the neck had in fact cut the internal jugular?
DR. BADEN: That's what Dr. Golden im--sort of implies in the--in the document, but he doesn't track it out that way. And he's saying they're all ending up in a similar position, but there's a lot of space there without blood vessels in it.
MR. KELBERG: And also, the carotid artery, correct?
DR. BADEN: Yeah. He says the carotid artery is cut through by--by that incision and then it's joined by these other three stab wounds. But that's all an approximation. So if in fact--what you're saying, if in fact the stab wound to the left side of the neck cut through the carotid artery, could it have caused bleeding, yes.
MR. KELBERG: And the bleeding would be substantial; would it not, sir?
DR. BADEN: Umm, depending on various factors, it could be.
MR. KELBERG: You would expect it to be from the carotid, wouldn't you, sir?
DR. BADEN: Uh, if it went through the carotid artery while her heart was functioning and there had an egress, the blood instead of going up and down the carotid artery sheath, came out of the stab wound, yes, there could be a lot of bleeding.
MR. KELBERG: And your opinion is that she wasn't unconscious at that time, isn't that correct, that those four were inflicted?
DR. BADEN: Umm, that's a different question. What I said was, she's not laying on the ground unconscious when the neck--the final neck wound is inflicted. Could she have been unconscious when the four were inflicted before that, it's possible, but I would think probably not.
MR. KELBERG: Well, doctor, again, you are only obligated you understand to answer truthfully to the best of your ability any question any lawyer asks you here in the courtroom. Isn't that your understanding?
DR. BADEN: That's correct.
MR. KELBERG: You've testified a thousand times in court, right, sir?
DR. BADEN: That's correct.
MR. KELBERG: Sir, if you have the belief that you can not answer a question due to a lack of foundation, lack of information, lack of ability for whatever reason, you understand you can give that answer, don't you, sir?
DR. BADEN: If I can't give an answer, I can't give an answer. But if you're saying is it possible that she was bleeding out of the left side of the neck, certainly it's possible that she was bleeding out of the left side of the neck.
MR. KELBERG: And if that were the case, sir, that would account, would it not, for the blood that is on that first step; isn't that correct?
MR. SHAPIRO: Objection, your Honor. You can't take the first step of a possibility and then--
THE COURT: That's not an appropriate objection. Sustained however.
MR. SHAPIRO: Objection.
THE COURT: Sustained. Rephrase the question.
MR. KELBERG: Doctor, if in fact the left internal jugular and left carotid had in fact been punctured by one or more of those three stab wounds along the left side of the neck that were more than superficial and did in fact cause external bleeding, in your opinion, sir, would that be the kind of bleeding that can account for what is seen on the second step?
MR. SHAPIRO: Objection. Assumes two facts not in evidence.
THE COURT: Overruled.
DR. BADEN: It could account for the amount of bleeding, but not the type of bleeding. A puncture to the carotid artery would spurt out and cause more of a spurting on the various steps involved rather than a pooling of blood, which is more typical of venous bleeding. So if you're saying that the internal jugular vein is cut and she's laying in that position for a while, could she bleed out in that fashion from the vein, she could.
MR. KELBERG: Doctor, do you see what appears to be spurts of blood along that second step or the first step I should say above the walkway?
DR. BADEN: There's some droplets of blood, but that's not the kind of--from a carotid artery spurting out. If my carotid artery were cut here (Indicating), it would go over all the jurors very rapidly because it's under very high pressure. So that could be from cuts on the neck. Yeah, she could bleed from cuts on the neck if her head were on that step.
MR. KELBERG: Now, doctor, do you recall Dr. Lakshmanan's testimony in support of why he believed that her body was down in the position roughly that it is seen in photograph CS11 at the time her hair was pulled back with the left hand and her neck sliced with a knife held in the right hand concerning the absence of blood along certain knuckles of the left and right hands of Nicole Brown Simpson? Do you recall that testimony, sir?
MR. SHAPIRO: Objection. Compound.
THE COURT: Overruled.
DR. BADEN: I recall some--some such testimony, but I don't agree with it.
MR. KELBERG: Well, doctor, would you agree that if the last injury inflicted was the stab incise wound across the neck and that wound did in fact cut both the left and right carotid arteries and the left and right internal jugular veins, that there would be immediate and massive bleeding?
DR. BADEN: I agree there'd be very--within a couple seconds of the neck wound, of the cut wound across the neck, there'd be very heavy bleeding, yes.
MR. KELBERG: And, doctor, do you agree that there is a massive pool of blood around the head and the left knee of Nicole Brown Simpson as seen in photograph CS11?
DR. BADEN: There's a lot of blood. I wouldn't say it's massive. A lot of blood. I mean, the blood is all very thin. You know, five or 10 ounces could account for that. That's not massive.
MR. KELBERG: And, doctor, do you agree--well, doctor, how much is in the human body?
DR. BADEN: Five quarts.
MR. KELBERG: And that would translate in some fashion for--
DR. BADEN: Maybe a quart. Maybe a quart would be out there at most. At most. See, blood when it spreads out like that gives the appearance of being a lot more than it is.
MR. KELBERG: It's enough to kill her though, right?
DR. BADEN: Oh, she lost enough blood to kill her, which is a quart, one or two quarts.
MR. KELBERG: Now, doctor, looking at the hands on CS40 and CS39, do you agree that there's an absence of blood on certain of the knuckles of each of those hands?
DR. BADEN: There's a--not an absence of blood because even in these pale areas, there's blood in the ridges, that one can see in the ridges. It's just--it's not spread uniformly. So I don't--there's some blood in here (Indicating). You can see it with a lens. But it's not as much as--as in the other parts of the hand.
MR. KELBERG: Doctor, you understand this to be the left hand that's shown in CS39 or the right hand?
DR. BADEN: Umm, it looks more like the right hand. The watch seems to be on the right hand.
MR. KELBERG: All right. And, doctor, isn't that actually the left hand?
DR. BADEN: I'm sorry. I'm sorry. I'm getting the left and right confused. That is the left hand underneath her that has the watch and the ring--some rings on--on the hand. I'm sure--same rings.
MR. KELBERG: Doctor, would you agree--
DR. BADEN: Different rings, two hands.
MR. KELBERG: So this is the left hand on CS39?
DR. BADEN: That looks like the left hand, yes, sir.
MR. KELBERG: And the left hand is the one that we see in CS11 next to what appears to be a left knee; is that correct?
DR. BADEN: Yes.
MR. KELBERG: And, doctor, would you agree that on the knuckles of the index and middle finger, there does appear to be a significant area of paleness in comparison to what appears to be the covering with blood on the fourth and fifth fingers, knuckles?
DR. BADEN: There's less blood, yes.
MR. KELBERG: And, doctor, would you opine that that condition is consistent with the hand having been in contact with the ground at the time the blood flows from that stab wound around the hand?
DR. BADEN: No. No. Not at all. If I--if I were killed and I'm bleeding and I'm dead and there's all kind of blood flowing before my hand gets to the ground, once my hand gets to the ground and stays in that position for 10 hours before it's moved, blood will accumulate in congealic layers. That's--I have a--from an--and goes down on top of a layer of blood that's already there and it will press out some of the blood. So one cannot tell from looking at this whether the blood was present or not present when the hand went into it, no. 1. And, no. 2, she continued to bleed for a while after her hand went into it. So there was blood before, there's blood after and you can not tell after 10 hours whether the hand was on the ground before the blood came down there. I would disagree with that.
MR. KELBERG: All right. Doctor, would you say that at the instant that the injury was inflicted, if the blood flowed and a pool started in front of her head and the hand, the left hand then hit the floor, hit the tile floor, that the hand would be coming in contact--all the knuckles would be coming in contact--the knuckles coming in contact with the surface would be coming in contact with blood?
DR. BADEN: Yeah. With the variety of blood flow. When the blood is coming down, regulates, there's--eventually congeals, the hand goes down. There's all kinds of ways in which the hand can come down in the area of blood and more blood comes on top of and runs across it. So there's all kinds of considerations one has to take in, and I don't think one can say with any reasonable degree of medical certainty that, therefore, that hand was on the ground before the blood came down.
MR. KELBERG: So to you, doctor, it is of no significance of making that evaluation, that two of the knuckles appear to be heavily stained with blood and two of the knuckles appear to have significant areas without the appearance of blood on the left hand as shown in CS39?
DR. BADEN: Yeah. The main significance that would have is that when the hands are down, the second and third--the knuckles of the second and third hand protrude more than the knuckles of the fourth and fifth fingers, so that as the blood flows and congeals, the part of the hand that's not pressed against the ground will get more and more blood on it.
MR. KELBERG: And your answer I assume would be the same in interpreting the right hand as shown in CS40?
DR. BADEN: Depends on the position of the hand and the blood so that--one can easily overinterpret these things, but one can't tell the position at the time of the bleeding--10 hours later, the way the blood has dried.
MR. KELBERG: By the way, doctor, with Nicole Brown Simpson's hands, in particular, the right hand in contact with the area where there's blood, would you expect that her blood would get under her fingernails in that area?
DR. BADEN: Could. It could. If there's blood around, blood could get under the fingernails certainly, if there's a lot of blood around. But what--and pertinent to your question is, even though a person's neck is cut and blood spurts out and there's a few seconds of consciousness and movement, then a loss of consciousness, but the person can still move while unconscious, and then eventually the heart stops. It doesn't happen instantaneously, the process.
MR. KELBERG: I think you can retake the stand.
MR. KELBERG: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. KELBERG: I'm sorry, your Honor. May I have just another moment?
(Brief pause.)
MR. KELBERG: Doctor, do you recall testifying in a case called State versus Brown in June of 1988?
MR. SHAPIRO: Objection. No foundation.
THE COURT: Overruled.
DR. BADEN: Could you tell me what--where that was?
MR. KELBERG: Let me--it's--timothy Brown is the name of the Defendant, and let me pull the transcript for you. A lawyer by the name of Mr. Maynard examined you?
DR. BADEN: No. No. Maybe if you give me the name of the Defendant--the decedent, it would be more pertinent to me.
MR. KELBERG: May I approach, your Honor?
MR. SHAPIRO: Your Honor, may we also have an opportunity to also see--
THE COURT: Yes, you may approach, Mr. Shapiro.
MR. SHAPIRO: Thank you.
DR. BADEN: Do you know where this was and who the decedent's name was?
MR. KELBERG: I'm sure the decedent's name is in here, if you'll give me a moment. Neil Watson.
DR. BADEN: I don't recall. This is in 1987. I don't recall.
MR. KELBERG: 1987 death, but a 1988 transcript, June of 1988, doctor.
DR. BADEN: I do not have an independent recollection. You don't know the jurisdiction of--is this Albany or New York or elsewhere?
MR. KELBERG: Doctor, let me first invite your attention to a particular area and see if that refreshes your memory at all. Inviting your attention to page 55 and ask if you would, to read to yourself that first paragraph.
DR. BADEN: (The witness complies.)
MR. KELBERG: And also page 59, doctor?
DR. BADEN: (The witness complies.)
MR. SHAPIRO: If you'll wait just one second.
(Brief pause.)
THE COURT: All right. Dr. Baden, from your review of that transcript, do you recollect the case?
DR. BADEN: No, I do not. It's an auto accident case. I don't recollect it immediately.
THE COURT: All right. Mr. Kelberg.
MR. KELBERG: Doctor, did you see, however, on the first page, that it does appear you are the witness called to testify?
DR. BADEN: Yes.
MR. KELBERG: Inviting your attention to page 55 and assuming that this is your testimony, sir, do you agree with what is said there on the first paragraph? "So there are different kinds of head injuries, but the most common reason for rapid death in an auto accident is direct bruising and injury to the brain, and that's I think what this history is most suggestive of, immediate loss of consciousness after blows to the head after remaining unconscious with some--"
DR. BADEN: And--
MR. KELBERG: "--and remaining unconscious with some question I know from the history as to whether he moaned or didn't moan or made sounds, which I would interpret a little differently than other doctors might." Do you agree with that?
MR. SHAPIRO: Objection. There's no foundation.
THE COURT: Sustained.
MR. KELBERG: Doctor, do you believe that in different kinds of head injuries, the most common reason for rapid death in an auto accident is direct bruising and injury to the brain?
MR. SHAPIRO: Objection. Irrelevant.
THE COURT: Sustained. Sustained.
MR. KELBERG: Do you believe that injuries to the brain cause immediate loss of consciousness from the injury to the brain?
DR. BADEN: It may or may not. Depends on the degree of injury. I would agree that, you know, deaths in auto accidents are highly due to head injuries and brain injuries, but very severe brain injuries.
MR. KELBERG: The contusion to Nicole Brown Simpson's brain is a brain injury; is it not, sir?
DR. BADEN: Yes.
MR. KELBERG: And is an injury which can cause immediate unconsciousness; can it not, sir?
DR. BADEN: It can or it may or may not. That's as I said before, Mr. Kelberg.
MR. KELBERG: Now, doctor, you were asked yesterday about a shoe worn by Ronald Goldman. Do you recall that testimony?
DR. BADEN: Yes, sir.
MR. KELBERG: And if we could put 1316 back up on the elmo, Defense exhibit 1316.
MR. KELBERG: We're looking at what you described as a cut to the tip of one of the shoes of Mr. Goldman; is that correct, doctor?
DR. BADEN: Yes, sir.
MR. KELBERG: And, doctor, the question asked of you from page 18 of the real time transcript was: "And what evidence have you found in that regard of Mr. Goldman kicking his assailant or assailants? "Answer: 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." Do you recall that testimony, sir?
DR. BADEN: Yes, sir.
MR. KELBERG: Sir, did you say to a reasonable medical certainty you believe that that cut to the tip of the right shoe of Mr. Goldman was inflicted by the knife of the perpetrator who murdered Mr. Goldman?
DR. BADEN: I said "Indicative," which means more likely than not. It's more than 51 percent, but I--it doesn't--in my expertise, doesn't rise to 95 percent.
MR. KELBERG: Well, sir, didn't you testify earlier on direct examination that experts should not offer opinions that they cannot offer to a reasonable medical certainty, which you defined as 90 or 95 percent? Isn't that what you said?
DR. BADEN: That--no, Mr. Kelberg. I'm sorry. No, Mr. Kelberg. What I'm saying is that experts should be asked questions by lawyers that require more than just possibility. If you ask a physician any question beginning, "Is it possible," we almost always have to say yes. If you ask me, "Is it more likely than not," that gives a little bit more substance to my opinion. If I can say to a reasonable medical certainty, that gives greater substance to what I think. I may still be wrong, but at least that's my opinion. And this--
THE COURT: All right. Counsel, we've gone over this semantical issue already.
MR. KELBERG: All right, your Honor. Let me go to the chest wounds. And I think we're done with that photograph. I--I'm sorry. Yes. Thank you, Miss Clark.
MR. KELBERG: Doctor, what evidence do you have regarding the history--
MR. KELBERG: Mr. Fairtlough, I'm sorry. I did want it back on.
MR. KELBERG: What evidence do you have as to the history of that shoe to know what condition it was in on the 12th of June, 1994, when Mr. Goldman was entering the walkway of Nicole Brown Simpson's condominium?
DR. BADEN: Uh, I don't know the history of the shoe except that it appeared to be in good condition.
MR. KELBERG: Well, sir, you have no idea, do you, when that cut may have been created on the tip of that shoe, do you, sir?
DR. BADEN: That's not true. It looked like a recent fresh cut without--from the edges in the margins.
MR. KELBERG: Well, doctor, a recent fresh cut in the human body, you can look for bleeding. What do you see that shows you this is a recent cut on a piece of vinyl, canvas or whatever make of material goes into that portion of the shoe?
DR. BADEN: In looking at it under magnification at Albany medical center in February of 1995 with Dr. Wolf and with Dr. Henry Lee, we could not see any evidence of wearing or foreign material getting into it that would occur over a period of time. Now--of wear. There was no wearing evidence. Now, umm, if you're asking me could it have happened the day before, yes, it could have happened the day before. But from the circumstances of the finding of this cut, from the cleanness, the cleanness of the cut, it's my opinion that it more probably, 51 percent, was indicative of happening during the struggle than before it. But I'm not certain about it.
MR. KELBERG: Sir, did you look for blood, test the surface inside, the external surface of that cut for blood from the tip of a knife which has already inflicted, if it has, stab wounds on Nicole Brown Simpson and/or Ronald Goldman?
MR. SHAPIRO: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
DR. BADEN: I didn't see any evidence of blood. But when a knife is put in and brought out of a body or different knives are, doesn't necessarily have blood on it. But the knives get cleaned off sometimes on coming out of the body and clothing.
MR. KELBERG: There was blood on the sole of this--one of the shoes of Mr. Goldman, wasn't there, sir?
DR. BADEN: Yes.
MR. KELBERG: Sir, what kind of specialized tests, if any, did you perform to see whether there was blood--other than naked eye observation, what specialized tests, if any, did you perform on that cut surface to see whether or not you could find evidence that might connect it to the knife that was involved in the attack on Ronald Goldman?
DR. BADEN: Umm, I looked at it with magnification, and my specialized test beyond that was talking to Dr. Henry Lee, who is my specialized test in this area.
MR. KELBERG: By the way, you have worked with Dr. Lee in a number of cases?
DR. BADEN: We have worked with--on the same side and on opposite sides in a number of cases over the years, and he is--and even when he's on the opposite side, I would take his opinion better than mine.
MR. KELBERG: Is the same true of Dr. Rieders?
DR. BADEN: Dr. Rieders? Uh, we've over the years worked together on cases and on opposite side of cases, yes.
MR. KELBERG: You worked together on the Boggs' case?
DR. BADEN: No. I worked with the Los Angeles Police Department on the Boggs' case and the Los Angeles Police Department before I ever got involved--the Los Angeles District Attorney's office, before I ever got involved, had already consulted with Dr. Rieders. So Dr. Rieders was an expert for your office in this case before I got involved as I recall.
MR. KELBERG: And Dr. Rieders, to your understanding, is another expert, part of the Defense team for Mr. Simpson; isn't that correct?
DR. BADEN: That's correct. He's a toxicologist. But as far as a criminalist goes, Dr. Lee is the person that I would rely upon and have relied upon even when I was on the opposite side.
MR. KELBERG: May I have a moment?
THE COURT: All right. But let's move on.
(Discussion held off the record between the Deputy District Attorneys.)
MR. KELBERG: Doctor, did you hear testimony or have you been apprised of testimony that a test of the--or of information that a test of the blood on the sole of Mr. Goldman's boot was consistent with a mixture of Nicole Brown Simpson's blood and Ronald Goldman's blood?
DR. BADEN: I recall such evidence and testimony, but--or evidence at least, but I'm not in a position to evaluate that. That's--that's beyond my expertise.
MR. KELBERG: Would that suggest that the knife, if it was one knife, that deposited that blood in a fly off, cast off manner?
MR. SHAPIRO: Objection. Beyond his expertise.
THE COURT: Sustained.
MR. KELBERG: Doctor, let me ask you about the chest wounds again of Mr. Goldman. You testified, as I recall, that you believe the left jugular vein, fatal injury, occurred early on in the struggle, correct?
DR. BADEN: Umm, yes. As compared to the chest and--the chest and abdominal wounds.
MR. KELBERG: And you said that at a minimum, five minutes must have passed between the jugular vein injury being inflicted and one or both of the chest wounds being inflicted; is that correct?
DR. BADEN: Yes. Yes.
MR. KELBERG: And you said it could be and more likely was 10 minutes past, correct?
DR. BADEN: Uh, yes. More likely 10, but a minimum of five.
MR. KELBERG: And could be as much as 15 you said?
DR. BADEN: Well, just looking at the wounds themselves, yes. Just the wounds without knowing any of the history, yes. In fact, just looking at the wounds, the cut wound to the neck bled actively, but slowly, and the stab wounds in the abdomen, with very little bleeding, could have happened hours later. That's not my opinion, but I'm just saying that's what we could tell from an autopsy. But it had to be at least 5 minutes.
MR. KELBERG: All right, doctor. And that's based upon Dr. Golden's description of the volume of blood in the plural cavity, correct?
DR. BADEN: Yes. That's the--largely based on that, yes, Mr. Kelberg.
MR. KELBERG: Now, doctor, isn't it medically true that blood can seep out of that plural cavity through the hole--pardon me--the holes created by the stab wounds if the body is in a position where those wounds are in the dependent area, that is down as Dr. Lakshmanan so testified?
DR. BADEN: No. Not usually. See, with a stab wound, as opposed to the cut wound to the neck, the cut wound to the neck continues to bleed in the--in a downward position. But a stab wound to the chest goes through skin, fat, muscle between the ribs, through the ribs in fact, and when the knife is--through clothing. When the knife is withdrawn, it all kind of collapses together. So we do not see normally blood coming out of the chest wounds unless the chest cavity is filled to capacity or near capacity.
MR. KELBERG: Could I ask Mr. Lynch to assist me for a few moments?
(Brief pause.)
MR. KELBERG: Doctor, in your opinion then, Dr. Lakshmanan is wrong when he testified that in his opinion, the stab wounds to the chest which are to the right side of Mr. Goldman's chest could have resulted in seepage from the chest to the environment when Mr. Goldman's body ends up in the position as shown in photograph 43-E of exhibit 362?
DR. BADEN: Yes. I would disagree with it for a number of reasons. One, if a quart--the chest cavity normally, if we're stabbed while alive, fills up with about a quart and a half, up to two quarts of blood. All that Mr. Goldman showed at the time of the autopsy is described I think 100 to 200 cc's, which are about three to six ounces in the left chest. So if he were alive and the heart were pumping, maybe over a quart of blood would have had to seep out in the position that he's in, which we don't see any blood in the soil and there's no--when the body is removed, there's not much blood in that area to start with. If I may.
MR. KELBERG: Sure.
DR. BADEN: Secondly, there's another stab wound to the right side of the abdomen that goes through the aorta, that also didn't bleed, and that one--
MR. KELBERG: Are you sure about that, doctor? Isn't it on the left side?
THE COURT: Wait, wait.
MR. SHAPIRO: Your Honor, he hasn't finished the answer.
THE COURT: Wait, wait. That's why I said wait. Let him finish his answer.
MR. KELBERG: I'm sorry. I just wanted to correct what I believe he's mistaken about.
THE COURT: Well, you can ask another--
MR. SHAPIRO: Your Honor--
MR. KELBERG: That's okay.
THE COURT: Hold on. Hold on. Wait, wait, both counsel. All right. Ask the question again. Proceed.
DR. BADEN: Yeah. I may--I apologize. I may get my right side and left side mixed up sometimes, and I appreciate Mr. Kelberg correcting it. But the stab wound in the abdomen that goes through the aorta also bled very little and it was about a hundred cc of blood, and that would have massive bleeding and also fill up the abdominal cavity. So that was the basis for my opinion that the stab wounds to the chest and also to the abdomen occurred when the heart didn't have enough blood to keep beating if it was beating, if at all, very feebly. And the amount of blood on the shirt, seen on the shirt doesn't account--it's a very--you know, three ounces of blood at most and--on the shirt fabric, and that's all accountable on the left side of the neck--God bless you, Mrs. Clark--from the left side of the neck that--and surprisingly little blood on the shirt.
MR. KELBERG: Doctor, how did you quantify the amount of blood on the right side of Mr. Goldman's shirt?
DR. BADEN: Just from 30 years of experience, Mr. Kelberg.
MR. KELBERG: Just looking at it?
DR. BADEN: Looking--yeah. Looking and handling it. And there is blood on the shirt. I felt it was consistent with the oozing of the blood coming from the jugular vein that was oozing down on the left side, which is what killed--which in my opinion, Mr. Kelberg, is what killed Mr. Goldman, was the oozing from the jugular vein. And that takes time, takes five or 10 minutes to lose enough blood that way as opposed to Miss Simpson, who would lose it in less than a minute.
MR. KELBERG: Now, doctor, your testimony was that the staining of the left pant was due to the left jugular vein oozing the blood over this lengthy period of time. Was that your opinion?
DR. BADEN: Well, lengthy period, I think 5 minutes is lengthy or short depending on your perspective. But it was--most of it was in my opinion coming from the left jugular vein down the left side of the body down the--the pant leg into the left shoe. In the course of that, there is a stab wound in the left thigh that could have contributed something to it. But there's a lot of blood above it, and that thigh wound would not bleed nearly as much--didn't hit any vital--any blood vessels of note in the report. So it didn't contribute much to the blood. It was mainly the jugular vein that caused it.
MR. KELBERG: And that wound is G17, right, the thigh wound?
DR. BADEN: Umm, yeah--it goes through the pocket, the left pocket. I think so.
MR. KELBERG: And the pocket as seen in this photograph, G2, of the same exhibit is where I'm pointing right now where there's a little whiteness; is that correct?
DR. BADEN: Umm, yes. Yes, sir, I guess.
MR. KELBERG: And, sir, wouldn't you agree that the blood that is on this pant, this left pant is predominantly below that area?
DR. BADEN: Well, it doesn't work out that way when you lay out the pant. And if you look at 43-E above, you can see how the blood continues up to the waistband, the waistband. So I think that stab wound, Mr. Kelberg, contributes to the blood, but there's blood above it; and the jugular vein, internal jugular vein would bleed much greater than the stab wound in the thigh.
MR. KELBERG: Doctor, do you see a trail of blood along the upper edge of the left side of the body exposed with the shirt above going down to the belt line? Do you see that in photograph--
DR. BADEN: Not on the skin. It's not on the--it's not prominent on the skin.
MR. KELBERG: And for--the blood does not jump, does it, doctor?
DR. BADEN: No.
MR. KELBERG: There's been some testimony in this case as I understand about flying blood and so forth. I just want your view. Can blood that's flowing from a wound go from the clothing and skip over the body and then land on the waistband of the jeans? Can that happen, sir?
MR. SHAPIRO: Objection. Argumentative.
THE COURT: Overruled.
DR. BADEN: Well, it didn't skip over. There's dried blood on the skin. But as the blood goes down the skin, the skin doesn't absorb the blood where the clothing absorbs it. So there's blood that extends that's present on the left side of the chest and that extends up to the area of the jugular vein, and that blood went downward. But it didn't get absorbed by the skin. It doesn't get absorbed by the skin. So it's not nearly as prominent on the skin, but if one looks at it closely, there's blood--there's dried blood there as it is in the jeans and the shoe.
MR. KELBERG: And, doctor, you recall Dr. Lakshmanan saying that the area where this thigh wound was inflicted is a very vascular area even without any major vessel being struck? Do you recall that testimony, sir?
DR. BADEN: I don't recall the testimony, but I--I would agree there's blood vessels there, but not nearly as much as in the neck. There's no compar--
MR. KELBERG: How much--how much blood do you quantify along the left leg, sir?
DR. BADEN: Oh, there are a few ounces of blood that are adherent to the leg and I--maybe--maybe half a quart could be accounted for, have a liter or half a quart on the clothing and on the shoes at maximum.
MR. KELBERG: And that's just from a naked eye observation in your experience, sir?
DR. BADEN: That's from looking at the clothing. Jeans can only absorb so much blood because a lot of the blood would go elsewhere, but--would just keep dripping down. So, you know, he had--all of his bleeding is not accounted for by what's in the clothing obviously.
MR. KELBERG: Well, doctor, if in fact, as Dr. Lakshmanan testified, that the blood along the left pant leg is consistent with the thigh wound to the left thigh area and was inflicted very early on in the struggle and that Mr. Goldman was in an upright position at the time that was inflicted, would that change your opinion--if those circumstances were true, would that change your opinion as to the time required for Mr. Goldman to have died from a combination of the jugular vein and the chest wounds and the abdominal aorta stab wound on the left side?
MR. SHAPIRO: Objection. Improper hypothetical.
THE COURT: Overruled.
DR. BADEN: You can't die from five or 10 or 15 or 20 minutes of bleeding from the left thigh wound that doesn't hit any significant blood vessels. I mean, there's a lot of capillaries, and a person can bleed, but won't die from it. The major reason for Mr. Goldman--major reason for Mr. Goldman's death by bleeding is from the jugular vein. All the other stab wounds contribute something to it. Every cut and every stab wound does bleed, can contribute to it, but the major source is the jugular vein returning all the blood that's being pumped, as we sit here, through our brain, it all comes down the jugular vein. That's the major source of the bleeding. The others can contribute to it, but not--not in great quantity.
MR. KELBERG: Doctor, setting aside the jugular vein, the kind of chest stab wounds that we see in photograph G10, how long would it take for a person to bleed to death from those stab wounds?
DR. BADEN: Oh, umm, taking both stab wounds on the right, his chest cavity could fill up with blood in about--given the autopsy description of the lungs, 10, 15 minutes from the--from the stab wound to the lung. That didn't happen here because it didn't fill up. There was not enough blood to go into the chest cavity. But stab wounds of the lung are certainly treated--every day people get stab wounds of the lung like this, get brought to a hospital 10, 20, 30 minutes later and survive, and then survive.
MR. KELBERG: And how long, sir would it take, forgetting any other stab wounds received by Mr. Goldman, for him to die from an abdominal aorta stab wound such as seen in the photograph G5 along the left side of the body?
DR. BADEN: Yeah. Dr. Golden describes that as going in and out of the aorta. So it's really one stab wound or two I think half inch cuts of the aorta, and that could cause a rapid filling of the abdominal cavity with blood and death in also 10 or 15 minutes. And again, people get stabbed and do get to hospitals out in the street in the aorta and survive. They'll die quicker from the aorta stab wound than from the lung stab wounds.
MR. KELBERG: Doctor, would it be accurate to say that one could inflict the number of stab wounds seen on the body of Ronald Goldman very rapidly by going as I am going and as Dr. Lakshmanan did with rapid thrusts of a knife against a victim that the perpetrator is motivated to kill with that knife?
DR. BADEN: Sure. There can be rapid infliction of stab wounds as you indicate, but stab wounds don't cause death. It's bleeding or injury to the organ that causes death, and you have to bleed out enough blood to die. The stab wound itself doesn't cause the death.
MR. KELBERG: Just a couple more areas, your Honor. I don't know how late the Court can go, wants to go.
THE COURT: I'd like to finish.
MR. KELBERG: I know. I'm trying very quickly.
MR. KELBERG: Doctor, we're looking at a board, exhibit 361, dealing with injuries to the extremities of Mr. Goldman, including defensive wounds as described by Dr. Lakshmanan. You've seen these photographs, haven't you, sir?
DR. BADEN: Yes. Yes, sir.
MR. KELBERG: And, sir, you testified yesterday regarding a contusion along this knuckle of the right hand as seen in G32, a knuckle of the middle finger, correct?
DR. BADEN: Yes.
MR. KELBERG: And that was the contusion or bruise which you described as being consistent with a blow, a fist, a closed fist being thrown against a perpetrator, right, sir?
DR. BADEN: I think they're all consistent with blows against another person's skin. They're all consistent with that, but that's the most typical.
MR. KELBERG: Doctor, do you recall the testimony of Dr. Lakshmanan that there appeared to be punctate abrasions centered on the other contusions seen in that right hand? Do you recall that, sir?
DR. BADEN: Yes.
MR. KELBERG: And a punctate abrasion is not caused by a blow struck against a smooth surface, is it, sir?
DR. BADEN: It can be if there's friction involved. The abrasion we're talking about is a friction burn. So theoretically, I could punch Mr. Shapiro and rub my finger across his--he could punch me better--and rub my finger across the face and get a little bit of a friction. But the rougher the surface, the more likely they'll be an abrasion closely is a good example.
MR. KELBERG: Well, for example, wouldn't the surface of a tree as seen in the environment at Bundy be the kind of hard rough surface that can create contusions with punctate abrasions if the hand strikes such a surface?
DR. BADEN: If the hand struck the surface of the tree bark with enough force and with a rubbing action, yes, that could cause--I would expect I did look for little pieces of wood or splinter which are not present, which often would be present, not a hundred percent.
MR. KELBERG: Now, doctor, you said yesterday that you didn't think Dr. Lakshmanan's opinion was correct regarding these being--these injuries being received by Mr. Goldman as he's flailing backwards in that confined space in the Bundy walkway area in an effort to ward off the assailant. Have you testified in that fashion?
DR. BADEN: Yes. I don't think it's--you get these marks against the soft--the smooth surfaces of the gate, the gate poles, which is my recollection of Dr. Lakshmanan's testimony.
MR. KELBERG: Wasn't it also his testimony you get them from rough surface like striking the tree surface?
DR. BADEN: Tree is more likely to cause abrasion. It isn't just a rubbing. You see, a rubbing alone would cause an abrasion or a friction burn. A punch would cause a black and blue. It has to be a punch and a rubbing at the same time.
MR. KELBERG: That's your opinion because your opinion is, the force of a blow from the hand flailing backwards would be insufficient; is that correct?
DR. BADEN: Insufficient to cause these injuries, yes.
MR. KELBERG: Doctor, what study or studies do you rely upon for such a conclusion?
DR. BADEN: The--I know of no studies to have people punch fences. I mean, this is experience, and I apologize that we don't have such studies.
MR. KELBERG: Such studies of actual cases, for example, where it was documented where there was no uncertainty as to how the person received injuries, a person who died, to see what they showed, isn't that what's called an epidemiological study?
DR. BADEN: No. An epidemiological study is just taking numbers and doing--numbers of what other people do, doing a statistical--epidemiological means statistical.
MR. KELBERG: And statistics can be done with actual cases to see how many people sustain such injuries in the fashion that Dr. Lakshmanan believed, by flailing backwards to avoid a thrust knife?
DR. BADEN: Yeah. You're absolutely right. Somebody would take this, and what Dr. Lakshmanan says is flailing backwards, they would cause--put it in a study as evidence of flailing backwards. The information we get as medical examiners and that even eyewitnesses have, in a type of a struggle, a murder, a punching are so flawed, nobody's looking for scientific evidence of how knuckles get injured. I would say here that the lack of splintering, the lack of wood and the lack of any blood on the--I didn't see on the tree trunk, but I didn't look at the tree trunk for that either--you know, speaks against his punching the tree in a way to get the--I'd say that the smoothness of the--of the fences is against this. I would say that in my experience, when people are killed and murdered in a struggle, that usually injuries to the hands are caused by defensive or offensive action against the perpetrator. That's my opinion, and I think it's reasonable experience.
MR. KELBERG: Doctor, would you agree that it is natural and reasonable to expect that a person against whom a knife is being thrust to try and back away if possible from that knife?
DR. BADEN: If that happens, they don't get bruises on the hands, the knuckles.
MR. KELBERG: Sir, if they throw their hand back like I've just done to try to avoid a knife that's been thrust, would you expect the force from that movement to be significant?
DR. BADEN: That could happen. That's not in my experience how people react when they're being murdered.
MR. KELBERG: Sir, how many crime scenes have you been at when the murder occurred so that you could actually see what people did to try to avoid a thrust knife?
DR. BADEN: I have been at literally thousands of homicidal crime scenes over the 30 years. I've interviewed people, I've interviewed police officers. We can't get that kind of information. Who's going to see exactly what happened?
THE COURT: This answer is not responsive to the--
DR. BADEN: I'm sorry.
THE COURT: --the specific question. Mr. Kelberg, would you take a step back? I think 16--you're shielding 165 out from the exhibit.
MR. KELBERG: I'm sorry. I apologize.
THE COURT: I think you need to turn it just a little.
MR. KELBERG: Oh, in fact, it's off its mark. That's why we've got a problem.
THE COURT: All right.
MR. KELBERG: Mr. Lynch, maybe move it back to its mark.
MR. KELBERG: Doctor, my question was, how many crime scenes have you been at when the person is actually being killed by somebody coming at them with a knife so you know from personal observation what actually happened?
DR. BADEN: Zero.
MR. KELBERG: Now, doctor, would you agree that this one bruise on the right hand of Mr. Goldman is the only contusion without a punctate abrasion on it, on the right hand?
DR. BADEN: Uh, there's another abrasion on the inside of the back of the ring finger also that doesn't appear to have an abrasion over it.
MR. KELBERG: I think you may have misspoken. I think you said abrasion that didn't have an abrasion.
DR. BADEN: I'm sorry. It has a bruise without an abrasion, looks like, but I don't--I think these are differences without significance.
MR. KELBERG: Well, doctor, if you struck a blow to the fist of a person, wouldn't you expect multiple knuckles in a direct force blow to come in contact with the person's face?
DR. BADEN: That may happen, but it's unusual to have uniform hemorrhage on the hands and knuckles. Usually in order to find the hemorrhage, we have to cut underneath the hand and look and examine the hemorrhage underneath the skin, which wasn't done.
MR. KELBERG: Well, do you see any evidence of bruising on any of the other knuckles seen in the photograph of the right wrist or hand?
DR. BADEN: I see no evidence on the picture, but there may very well be hemorrhage underneath it. That's why we make autopsy incision and look underneath--God bless you--to look underneath the skin of the hand--of the body or hand. That's why we would make an incision into that questionable shoeprint on Miss Simpson's back, is because there are things under the skin that you can't tell from looking at the skin on the outside.
MR. KELBERG: Your Honor, I don't know how long the Court wishes to go. I have probably another 15 minutes or so.
THE COURT: Try 10.
MR. KELBERG: I'll do my very best.
MR. KELBERG: Doctor, assuming that this is the only contusion to the right hand without an abrasion, that is not the pattern one would expect to see, is it, sir, if someone strikes another person with a direct blow of the fist that comes in contact, such as my right hand has just come in contact with your left cheek, with at least three of my knuckles from the middle, fourth and ring finger coming in contact. Isn't that the case, doctor?
MR. SHAPIRO: Your Honor, may we get a description for the record? The way I saw it was that his second knuckle was the only knuckle that touched the doctor.
DR. BADEN: Thank you.
THE COURT: Well, counsel, I think--
MR. KELBERG: The difficulty, obviously, your Honor--
DR. BADEN: Thank you.
MR. KELBERG: --I think you realize--
THE COURT: Well, we've spent a lot of time on this one particular injury, counsel.
MR. KELBERG: All right. Doctor, how many defensive wounds does Mr. Goldman have on his hands?
DR. BADEN: As I recall, two on one hand, one--one the other--well, stab wounds.
MR. KELBERG: Defensive wounds, doctor.
DR. BADEN: Defensive wounds, if I may, is a misnomer because what we're assuming is that he was trying to protect himself during the struggle. We say "Defensive wound" because these are consistent with putting hands up or maybe he was struck on the knuckles or struck on the hands. But one can get the same wounds in--not in a defensive position. I could be laid out and somebody could come and stab my hand and give me the same wounds and it's not defensive. So it's an interpretation. I don't know. On this, I would include all the injuries in the hands as evidence of struggling or trying to protect one's self.
MR. KELBERG: And that would be a classic definition of a defensive wound, isn't it, sir?
DR. BADEN: No. If somebody is seen to try to defend himself and get injuries, that would be a defensive wound. But as you indicated, the pathologist rarely sees the action.
MR. KELBERG: Sir, in looking at photo G29 of the same exhibit, you see incise wounds the web of the left thumb and below the area of the pinkie; do you not, sir?
DR. BADEN: Yes, sir.
MR. KELBERG: And, sir, that's consistent with, as Dr. Lakshmanan said, Mr. Goldman having his hands up and the knife puncturing it, piercing it, correct?
DR. BADEN: Yes. That's consistent with that.
MR. KELBERG: A blocking action, but the hand is open, right?
DR. BADEN: Yes.
MR. KELBERG: And also, it is possible that it reflects an effort to grab the knife to prevent the knife from being thrust into the body of Mr. Goldman; does it not, sir?
DR. BADEN: If there was incise wounds, it would be that. But it could be, could be.
MR. KELBERG: Well, sir, what does Dr. Golden's report indicate they are?
DR. BADEN: Defensive wounds. He characterizes them as defensive wounds. I think it's stab wounds.
MR. KELBERG: Now, doctor, aren't there also other wounds on the left hand in the middle finger--
DR. BADEN: Yes.
MR. KELBERG: --at the distal end and in the little fin--I'm sorry--the middle finger at the distal end. The middle finger, there is a flap of skin and an abrasion; is there not, doctor?
DR. BADEN: Yes.
MR. KELBERG: And, doctor, those are evidence of defensive wounds also?
DR. BADEN: Could be. Could be.
MR. KELBERG: And consistent with--again, the hand has to be open for those to be inflicted, right?
DR. BADEN: Well, unless the hand, as you say, grabbed down over the knife blade and closed itself over the knife blade.
MR. KELBERG: Let's look at the right hand, G34 and G35. We're looking at the palmar surface of that hand now; aren't we, sir?
DR. BADEN: Yes.
MR. KELBERG: And do you see similar kinds of defensive wounds with the incise condition?
DR. BADEN: Yes. There are two on the right hand.
MR. KELBERG: And in fact, isn't there also I believe--all right. Let's start with those two. Again, consistent with having the hand in a blocking action from the knife coming forward?
DR. BADEN: It could be.
MR. KELBERG: Consistent with the knife being grabbed by Mr. Goldman to prevent it from stabbing him?
DR. BADEN: No. That's more stabbing. What the intention is, whether it's intention to block it or to grab the knife, obviously we can't tell that from these findings at autopsy, but it's consistent with protecting himself.
MR. KELBERG: You can't throw a fist with your hand open, can you, sir, throw a punch with a closed fist if you're going to at the same time be receiving these kinds of injuries, can you, sir?
DR. BADEN: If his hand is open, then it's not a punch.
MR. KELBERG: And you recall Dr. Lakshmanan's testimony that the absence of defensive wounds to the upper arms, right and left, the presence of the injuries on the palms, indicating the hand was open, the absence of bruising along any knuckle other than the one knuckle in the right hand except where there is a punctate abrasion, that constellation of contusions with punctate abrasions caused him to form the opinion that Mr. Goldman in fact did not throw a punch that connected with the perpetrator. Do you recall that testimony?
DR. BADEN: I recall the testimony. I disagree with it.
MR. KELBERG: And he also was of the view that you would not expect Mr. Goldman to throw a punch because to throw a punch would bring his body closer to the knife if the knife is being thrust at him at the same time. Do you recall that testimony?
DR. BADEN: Yes. I think that's silly. That's silly, because if a person is trying to defend himself, he or she may do a lot of things, and most of the time, when a person tries to punch the opponent, they come close to each other. I think here, certainly that's evidence that his hand was open. But the fact that Mr. Goldman's hand was open doesn't mean 10 seconds later, he will make a fist. I mean, having the hand open isn't inconsistent with making a fist at some point.
MR. KELBERG: May I approach, your Honor?
MR. KELBERG: Doctor--and I think you can retake the stand.
MR. KELBERG: And, Mr. Lynch, I think you can take those down. Mr. Lynch, I think you can take those photos down. Your Honor, if you give me five more minutes, I think I can finish.
MR. KELBERG: Doctor, I want to show you from the Spitz and Fisher book pages 260, 261, 262, 263 and 264. Would you take a look at those pages, please.
DR. BADEN: (The witness complies.)
THE COURT: Madam reporter, how's your paper supply?
THE COURT REPORTER: Fine.
THE COURT: Are you going to last another 10 minutes?
THE COURT REPORTER: Yes, your Honor.
THE COURT: All right.
(Brief pause.)
THE COURT: Mr. Kelberg, given the number of exhibits that you have, I'm not optimistic that we're going to finish, and the jury has an appointment this afternoon.
MR. KELBERG: Your Honor, whatever the Court wishes.
THE COURT: All right. Ladies and gentlemen, I don't think we're going to finish in the next five minutes.
MR. SHAPIRO: Your Honor, may we approach?
THE COURT: No. I've got a real time problem here.
MR. SHAPIRO: Well, I'm saying if he has five minutes, I have very little redirect, very little, and the doctor has an appointment out of town if you recall.
THE COURT: All right. Quickly.
MR. KELBERG: Well, I think I can expedite this without using the elmo now, but asking for permission later to put them on, perhaps on Monday, according to the doctor's testimony.
MR. KELBERG: Doctor, the photographs on those pages are photographs put in Dr. Spitz' book to reflect the kinds of defensive wounds commonly seen on people who receive sharp force injuries, stab wounds which kill the person, correct?
DR. BADEN: No. These are not commonly seen. These are examples of--from the other information that Dr. Spitz had on the cases, were defense wounds, but these are not necessarily common.
MR. KELBERG: And the areas shown, doctor, to start with the photos before we'll put them up, the first photo shows the right arm of an individual, this photo on page 260, with a defensive wound from the knife along the area where I'm pointing right now, doctor, if you'll look, this area right here, correct?
DR. BADEN: Uh, yes.
MR. KELBERG: Did you see any such injury on Mr. Goldman's right or left arm?
DR. BADEN: Not this exact same wound.
MR. KELBERG: Did you see any defensive wound along the forearm of the right or left arm of Mr. Goldman?
DR. BADEN: Not that I recall, no.
MR. KELBERG: Same situation, showing you photographs on 261, 261, the lower portion of the photo as well, showing defensive wounds to the arm area and the upper wrist area, correct?
DR. BADEN: Yes.
MR. KELBERG: Didn't see any such injuries on Mr. Goldman?
DR. BADEN: Not the same injuries, no.
MR. KELBERG: Would you agree that the more defensive wounds that are seen, it suggests that the struggle was a longer struggle as you used the term "Struggle"?
DR. BADEN: No, not necessarily.
MR. KELBERG: How many defensive wounds did Nicole Brown Simpson have?
DR. BADEN: Nicole Brown Simpson had injuries to her hands and neck and top of the upper part of the body. I forget how many were on the hands.
MR. KELBERG: In fact, doctor, one of her hands had no evidence of defensive wounds; isn't that correct?
DR. BADEN: I think you're correct.
MR. KELBERG: You want to look at your notes?
DR. BADEN: Yeah. I think you're correct. I think you're correct.
MR. KELBERG: And there was one defensive wound on the other hand; is that correct?
DR. BADEN: I think you're correct. But the number of defensive wounds, if they are defensive wounds, does not tell how long the struggle goes on. I mean one can't equate the two.
THE COURT: Mr. Kelberg, I think we made the point about the absence of other defensive wounds.
MR. KELBERG: All right. Your Honor, I'm assuming that I've laid enough of a foundation for the other pictures so that I will--
THE COURT: I don't even know that it's necessary since we are talking about absence of wounds in that area.
MR. KELBERG: All right. Doctor, just a couple more things. You testified yesterday regarding these control wounds as described by Dr. Lakshmanan. No. 1, you didn't think they were control wounds, right?
DR. BADEN: That's correct.
MR. KELBERG: And one of the reasons, you said that you thought that the jugular vein injury came before those, right?
DR. BADEN: Most--I think that the jugular vein injury could have come be--probably came before because there was almost no bleeding from those cut wounds, yes.
MR. KELBERG: Doctor, would you agree that common sense would suggest that if there's been this struggle that goes on perhaps for five or 10 minutes so that you start with the jugular vein injury and you have five or 10 minutes of bleeding before you get to chest wounds, that it is not logical that somebody would take a knife and carefully put in two superficial incise wounds on the neck of that same person after there's been a battle royale in the form of a struggle? Isn't that logical to suggest?
DR. BADEN: Murder and struggles are not logical, Mr. Kelberg. If they were logical, there would be fewer of them. And I think that it was dark and the perpetrator wasn't sure that Mr. Goldman was dead, and that's why five minutes later or 10 minutes later, additional stab wounds were made, because Mr. Goldman, while he was bleeding from the neck, would have collapsed to the ground after a few minutes, would have been breathing, and then additional wounds were made on the body while I believe he was lying on the ground, which included the lungs, the aorta, the abdomen and also the neck could have been cut, not intending to be superficial.
MR. KELBERG: As I understand your testimony then, doctor, what you're saying is that even if five minutes passed between the neck wound and the chest wounds, the struggle had ended long before that with Mr. Goldman on the ground and the perpetrator coming back and inflicting these additional wounds to verify that Mr. Goldman was in fact dead. Isn't that what you've just suggested?
DR. BADEN: What I've said is, by saying that takes 5 minutes for the heart not to be able to act--beat probably doesn't mean that he's struggling all that time. At some point, before the lung stab wounds, Mr. Goldman collapses, and the perpetrator or perpetrators then inflict additional stab wounds because although he's on the ground, he's breathing, he's making noise, and the perpetrator(s), may--may have wanted to make sure he was dead and not still alive.
MR. KELBERG: Doctor, in your experience, is it unusual for a perpetrator who uses a knife to inflict the kind of injuries seen on Nicole Brown Simpson and Ronald Goldman not to have some minor knife injury that can be inflicted in the course of the struggle?
DR. BADEN: Oh, it's very common for perpetrators not to have any wounds. I mean, if I have the knife, the likelihood is, I'm not going to get stabbed. I could get stabbed or cut, but most of the time, I don't.
MR. KELBERG: If your hand, your left hand, for example, is in front of an area where you're trying to take the knife and cut the person, you can have your hand cut, can you not, by the knife?
DR. BADEN: Oh, sure. I could cut myself, and what's that called, friendly fire or something? I could cut myself inadvertently, and that does happen sometimes, but not in the great majority--in the great majority of times, when somebody is stabbing somebody with a knife, the perpetrator doesn't get cut, but sometimes he does.
MR. KELBERG: Doctor, looking at photograph 358-B, does that show the two superficial incise wounds?
DR. BADEN: And, Mr.--yeah, there are superficial cut wounds on the neck.
MR. KELBERG: And, doctor, you said yesterday that the absence of blood as seen in the photographs suggested to you that those wounds were inflicted later on; isn't that correct?
DR. BADEN: Yeah. It would suggest. I can't say that to a reasonable degree of medical certainty. It's more likely than not, 51 percent, that these cuts on the neck happened while he was dying rather than during the struggle.
MR. KELBERG: Doctor, would you agree that these--this photograph does show blood in both of the superficial incise wound tracks?
DR. BADEN: Umm, no, I don't see that. I don't see that. It could have--I can't be definite about this. It could have happened during the struggle or near when the heart pumping action is diminished.
MR. KELBERG: I just have one last set of photographs that I had here, your Honor, a moment ago. Your Honor, I need to add to the exhibit 581-A through D a few additional photographs.
THE COURT: Are these the Chicago photographs?
MR. KELBERG: These are the Chicago photographs, your Honor.
MR. KELBERG: Doctor, you recall testifying yesterday what Mr. Simpson told you with respect to a cut on his hand?
THE COURT: All right. Counsel, we're going to have to quit at this point.
MR. SHAPIRO: Your Honor--
THE COURT: We have to quit at this point.
MR. SHAPIRO: May I just make one suggestion? I have less than two minutes of questions, and if Mr. Kelberg has--you have asked him--you've given him time limits, and I'd ask you to enforce those time limits.
THE COURT: No. He told me how long it was going to take and I tried to accommodate finishing this witness. I did not give him a time limit today.
MR. SHAPIRO: Can we inquire how long it would be, your Honor?
MR. KELBERG: Your Honor, this is the last area. As I said, hopefully five minutes. Your Honor, I can't control the length of the answer.
THE COURT: Well, you just heard the reaction from the jury. We're going to quit now. All right. Let me see counsel at the sidebar.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Mr. Kelberg, two pictures, five questions.
MR. KELBERG: Your Honor, can I have less questions, but more pictures?
THE COURT: Yes.
MR. KELBERG: Seven additional pictures, whatever the alphabet is from E through for 581.
(Peo's 581-E through 581-K for id = photographs)
MR. KELBERG: Doctor, let me show you these additional pictures and ask you to assume again they were taken in Chicago the same time as the ones you saw yesterday.
DR. BADEN: Yes, sir.
MR. KELBERG: Have you looked at all of them?
DR. BADEN: I'm looking at them.
THE COURT: I take it, doctor, you have seen these before?
DR. BADEN: Yes, sir, I've seen these before.
THE COURT: Proceed.
MR. KELBERG: Doctor, there's a washcloth in one of the photographs, at least one of the photographs that appears to have some blood on it, correct?
DR. BADEN: Yes, sir. Yes.
MR. KELBERG: And there is a bed sheet I think seen in two of the photographs that appears to have a small area of blood on that; is that correct?
DR. BADEN: Yes.
MR. KELBERG: And, doctor, if in fact Mr. Simpson had cut his hand along this middle finger when he was in Los Angeles and in fact he did some kind of action with his hand in Chicago that caused it to rebleed, is the amount of blood you see on the washcloth consistent with that circumstance?
DR. BADEN: No. I think he would bleed more, but he could have bled, have a little bit on the washcloth, the rest of it cleaned up or something. But he would have bled more than is on the washcloth, but it could have been washed away or cleaned up.
MR. KELBERG: You have no evidence that that in fact occurred though, do you, sir?
DR. BADEN: No. No.
MR. KELBERG: Now, doctor, would you expect bleeding from such a cut along the middle finger to be more extensive if this was cut initially in Chicago than if it were a rebleed, that is a reopening of a cut that had been received in Los Angeles?
DR. BADEN: I can't give an answer on that. It's highly variable depending on the injury that caused it to reopen.
MR. KELBERG: And, doctor, you have no way of knowing, do you, sir, whether the explanation given to you by Mr. Simpson was the truth or not, do you, sir?
MR. SHAPIRO: Objection.
THE COURT: Overruled.
DR. BADEN: I--it was consistent with the findings, but I have no independent way of verifying it.
MR. KELBERG: Thank you, your Honor. No further cross.
THE COURT: Mr. Shapiro.
MR. SHAPIRO: Thank you very much, your Honor. Good afternoon, ladies and gentlemen, and thank you for your patience.
REDIRECT EXAMINATION BY MR. SHAPIRO
MR. SHAPIRO: Dr. Baden, you were asked by Mr. Kelberg whether or not you in your experience have been retained for purposes of consultation by both the Defense and the Prosecution, and you answered you had; is that correct?
DR. BADEN: Yes, Mr. Shapiro.
MR. SHAPIRO: And then you answered in response to his question that it was your opinion that if your findings were different than the person who was asking you to investigate--for example, if Mr. Kelberg asked you to investigate, your findings were different than his theory, your opinion is, you would not be called as a witness; is that correct?
DR. BADEN: Yes.
MR. SHAPIRO: You have been a forensic pathologist for how many years?
DR. BADEN: Umm, over 30 years.
MR. SHAPIRO: You have headed medical offices?
DR. BADEN: Yes.
MR. SHAPIRO: You have testified around the country and internationally?
DR. BADEN: Yes.
MR. SHAPIRO: On how many occasions in the last 30 years are you aware of a situation where a medical examiner did an autopsy, came to conclusions, was available to testify and was not called as a witness in a case?
MR. KELBERG: Objection. Argumentative.
THE COURT: Overruled.
DR. BADEN: As I sit here, I can't think of a single instance.
MR. KELBERG: And you're aware that Dr. Golden was not called in this case; are you not?
DR. BADEN: Yes.
MR. SHAPIRO: Thank you. Nothing further.
MR. KELBERG: One question.
RECROSS-EXAMINATION BY MR. KELBERG
MR. KELBERG: And, doctor, you are also aware that if you thought there was anything significant that Dr. Golden could add, Mr. Shapiro could have called him just as well as I could, correct, doctor?
MR. SHAPIRO: Calls for a legal conclusion.
DR. BADEN: Yeah.
THE COURT: Sustained.
MR. KELBERG: Nothing further, your Honor.
THE COURT: All right. Dr. Golden--excuse me. I'm sorry. Dr. Baden. Dr. Baden, thank you, sir.
DR. BADEN: Thank you.
THE COURT: All right. Ladies and gentlemen, I want to thank you for your patience today. I also want to pay tribute to our court reporter today since this was an extraordinarily difficult job. Dr. Baden, you can step down. All right. Ladies and gentlemen, please remember all my admonitions to you; don't discuss the case amongst 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. Have a pleasant weekend, enjoy the activities this weekend. We'll see you Monday morning at 9 o'clock. All right. We'll stand in recess. Thank you, counsel.
(At 12:30 P.M., an adjournment was taken until, Monday, August 14, 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 Friday, August 11, 1995 volume 204
Pages 41241 through 41395, inclusive
(Pages 41242 through 41244, inclusive, sealed)
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
I N D E X
Index for volume 204 pages 41241 - 41395
-------------------------------------------------------------------------------------------
Day date session page vol.
Friday August 11, 1995 A.M. 41241 204
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
Baden, Michael 204 (Resumed) 41255bk 41392s 41394bk
-------------------------------------------------------------------------------------------
ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Baden, Michael 204 (Resumed) 41255bk 41392s 41394bk
-------------------------------------------------------------------------------------------
EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
582 - 1-page document 41268 204 described as the notes of Dr. Baden
582-A - printout of 41273 204 close-up view of the notes of Dr. Baden circled in red
583 - Videotape 41281 204 entitled "Confessions of a medial examiner"
584 - 1-page document 41282 204 described as an "HBO press release"
581-E thru 581-K - 41389 204 photographs of wash cloth with red stains, white sheet with a red spot and ink pen, a bathroom, white sheet with a red spot, bed and surrounding area and white trash can with broken glass