Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; Richard P. Towne, Esquire, and Laurie J. Butler, representing Mark Fuhrman.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Scheck, Mr. Neufeld, Mr. Blasier. The People are represented by Miss Clark, Mr. Darden and Miss Kahn. The jury is not present. Counsel, what other matters do we need to take up before we bring the jury out?
MR. BLASIER: Good morning, your Honor.
THE COURT: Good morning, Mr. Blasier.
MR. BLASIER: Very briefly, Miss Clark and I have talked about Dr. Rieders' testimony. As you might recall, Dr. Rieders was in the middle of cross-examination when he had to leave.
THE COURT: I recollect.
MR. BLASIER: We then called Agent Martz. I want to ask Dr. Rieders questions about Agent Martz' testimony. He has reviewed it and I have told Miss Clark that I have no objection if she just wants to start crossing him on that so we don't need to stop and recall him and that sort of thing. So if that is agreeable with Miss Clark, that is fine with me.
MS. CLARK: Yes. I informed Mr. Blasier that will be fine and I'm not going to go through the rigmarole of having him leave and come back or walk out the door and come back, that I'm not going to be able to completely cross-examine him on what he would be saying about Agent Martz because I really don't know until I hear the direct, but I'm going to reserve some of that for cross, so I'm going to make this as expeditious as possible.
THE COURT: All right. Anything else for me to take up?
MR. COCHRAN: Good morning, your Honor.
THE COURT: Mr. Cochran.
MR. COCHRAN: We will have some things to talk about probably this afternoon so we will get this morning--
THE COURT: I had anticipated this morning because I didn't bring the jury down.
MR. COCHRAN: Oh. May we have a moment then, your Honor?
THE COURT: Yes.
MR. COCHRAN: Okay. Thank you.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Good morning, your Honor.
THE COURT: Good morning, Mr. Cochran.
MR. COCHRAN: Your Honor, a couple of things we would like to address, if we might. One, regarding the tapes, your Honor. As the Court can imagine, we have all been quite busy, and I understand the Prosecution now has the tapes also, and one of the things I wanted to address was that with regard--
THE COURT: Do they have the tapes and the transcript?
MR. COCHRAN: I don't know. I was just advised by Messers. Schwartz and Regwan that they were going to get I presume the tapes and the transcript.
THE COURT: Miss Clark indicates that they have both.
MR. COCHRAN: Right, and he called and indicated that while I was back east this weekend. Your Honor, with regard to that, I would ask with regard to the people who can listen to the tape, we have obviously got expanded from the Defense standpoint because Mr. Bailey is handling Detective Fuhrman and we certainly anticipate that he is in the middle of cross-examination, so it is kind of unfair, that he has to know what is on these tapes, and so we've got to extend it further because these tapes are so voluminous and there is so much information on these tapes that I believe this Court is going to find very, very relevant. We need Mr. Dershowitz and--Professor Dershowitz and Professor Uelmen also involved because we anticipate any motion that they bring, clearly they are relevant, and the question is we don't want to play at this point thirteen or fourteen hours of tapes. Maybe five or six hours, but certainly not thirteen or fourteen, but we would like to narrow it down in order to do that. If the Court pleases, we want to be able to share that with our colleagues and we want to do a major brief spelling out the various points and the various relevance, and I think it will be helpful to the Court. We are going to have a copy for you--well, I should back up and say Miss McKinny is in town and I had asked her, you remember last week, to bring the original for this Court, and I will--hopefully tomorrow we can give you the original and a copy of her transcript. And then as I indicated, my office is doing a separate transcript which we can compare and--but you need to--you need to read these transcripts, and it is a lot of work, but you need to hear this for a lot of reasons. And so that is--that is what I would like to do. And certainly specifically Mr. Bailey isn't here this morning, but certainly he has to be part of it.
THE COURT: No, I agree with you, that since Mr. Bailey is the individual conducting the examination of that particular witness, that he ought to be included, something perhaps we should have thought about when the protective order was originally contemplated, but the thing is the protective order was submitted by counsel for Miss McKinny, Mr. Schwartz and Mr. Regwan.
MR. COCHRAN: Yes.
THE COURT: So it will need their acquiescence.
MR. COCHRAN: It will and there will be no problem. I spoke to them from back east. And the other matter that we talked about, the 1054.07, they have acquiesced and they have been in touch and they have allowed that also, so I will ask them to send you a letter today.
THE COURT: All right. If you will secure for me their consent to that with the understanding that no copies be made by any of those three counsel; Mr. Bailey, Mr. Dershowitz or Mr. Uelmen.
MR. COCHRAN: Certainly. Are there any limits on the Prosecution, your Honor?
THE COURT: The Defense--excuse me. Miss McKinny's counsel have not asked for restrictions on the Prosecution.
MR. COCHRAN: That wasn't my understanding. My understanding was that they wanted to protect the propriety rights of these tapes. It had nothing to do with the--
THE COURT: I stand corrected. The protective order did include the Prosecution.
MR. COCHRAN: All right. All right.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Your Honor, the problem with what you just said, and I would like to just clear this up, Dershowitz, as the Court knows, is in Massachusetts so we can't work with one copy where he is concerned. I will address that when we reach Messers. Regwan and Schwartz, and they have already acquiesced to a separate copy to others as it is, so we expect we can handle this, if the Court pleases. As a matter of fact, Professor Uelmen will be here this afternoon and we will be talking about the Kestler/Bosco/Savage matters. And I think that Mr. Scheck would like to address the Court on the whole idea of the jury view and the--it is our position it is unnecessary and too costly, but I would like Mr. Scheck to do that at this point, if the Court pleases.
THE COURT: All right. Here, the problem Mr. Scheck, though, is the individuals from the District Attorney's office who were present aren't here. Why don't you put it in writing. Put your objections in writing.
MR. SCHECK: Okay.
THE COURT: All right. The record should reflect that on Sunday evening at eight o'clock the Court met with Mr. Scheck and Mr. Douglas and Mr. Yochelson and Mr. Hodgman and the five of us went to the Bundy and Rockingham locations in the evening hours to view Bundy and Rockingham for the purposes of determining whether or not a nighttime viewing would be appropriate in this case. And I will take up any objections or suggestions from counsel in writing, but we should resolve this issue by Wednesday. All right. Anything else before we bring the jury down?
MS. CLARK: Yes, your Honor. I think we should approach side bar.
THE COURT: On what issue?
MS. CLARK: On the tapes issue.
THE COURT: We are not going to discuss the content of the tapes, are we?
MS. CLARK: No.
THE COURT: I mean, is there anything we can't discuss here in open court?
MS. CLARK: Yes, it is something that we can't discuss in open court.
THE COURT: Why is that?
MS. CLARK: I really--I think we should address this at side bar.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: Over at the side bar. Miss Clark.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MS. CLARK: I don't know if we want to seal this, but we have reviewed the transcripts and the tapes and there could well be a conflict for this Court in handling this matter, which is why I wanted to approach, because Mr. Cochran is indicating that you would have to read and review and many, many hours of work. I would like to save you that. What we are going to do is present the Court with the evidence that we think indicates a conflict and you decide, but I think it is there.
MR. COCHRAN: Let's go in chambers. Let's go in chambers.
MS. CLARK: Let's go in chambers if we can.
THE COURT: Okay.
MR. COCHRAN: Rather than do this out here.
(The following proceedings were held in open court:)
THE COURT: All right. Counsel, in chambers.
(At 9:24 A.M. the following proceedings were held in camera:)
THE COURT: All right. We are in chambers with counsel for both sides. What is up? Miss Clark?
MS. CLARK: Yeah. It would appear, based on my review of stuff that I have seen so far, and Johnnie has corroborated that he agrees he has been shown that, back in `85, on the `85 tapes I think it is, and also `87, Mark Fuhrman discusses Lieutenant York.
THE COURT: Uh-huh.
MS. CLARK: And their run-ins at West L.A. and he makes derogatory comments. Of course I have to tell you, Judge, this is a book about men against women, that is the whole thing, so he tees off on women through the whole thing. I mean--
MR. COCHRAN: Just a minute. That is basically true, but he doesn't like blacks or Mexicans or Jews.
MS. CLARK: Or whites either, or Jews.
MR. COCHRAN: He hates women. He hates everybody basically except white Anglo-Saxon men who are police officers.
MS. CLARK: Yeah, and even them not necessarily.
MR. COCHRAN: Unless they are cowards.
MR. SCHECK: Or pukes.
MR. COCHRAN: Or pukes.
MS. CLARK: So I mean--
THE COURT: We call them squints in the D.A.'s office, but that is okay.
MR. COCHRAN: Judge, this will be--
MS. CLARK: Is this going to be sealed, Judge?
THE COURT: No. I have to tell you no.
MR. COCHRAN: Careful.
MS. CLARK: Motion to strike all of the above.
THE COURT: No. Let me tell you the problem. If this deals with a conflict that the Court has--
MS. CLARK: Right.
THE COURT: --in light of what is on the tapes or in the transcripts or both, I think this is something that should be public, because any conflict the Court has has to be public and known.
MS. CLARK: Yeah.
THE COURT: So my inclination, although I appreciate the delicacy of your presenting it to me here, I have no difficulty discussing this in open court on the record.
MS. CLARK: Right.
THE COURT: And if it is a problem, it is a problem and we will just deal with it like we have every other problem that has sort of sauntered down the pike in this case.
MS. CLARK: Right. I don't have any problem with that. I just thought that the first time I broached this issue we could do this a little more delicately until everybody gets their sea legs, because I was surprised and we are framing the issue and we are looking in it legally. I have no desire to be outside of this court. On the other hand, from the appellate standpoint, I have no desire to look--should that happen later--look bad if there should ever be a conviction. I want to make sure we do it clean and do it right, whatever it is.
THE COURT: Uh-huh.
MS. CLARK: We are researching it now. That is why I wanted to approach and save the Court some time. Let's first resolve that, because you wade into hours and hours and hours of work because, God knows, you have done enough of that now. Wednesday we wanted to do that and attach to that the excerpts of the transcripts that show the relevant portions. It is very brief.
(Brief pause.)
THE COURT: The court reporter now has her battery charger?
REPORTER OLSON: Yes.
MR. COCHRAN: Judge, can I--
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. COCHRAN: Judge, the tapes are sickening, and you know, I don't know--I think that we--you know, I don't know so much about the conflict, but there is certain parts about Lieutenant York that I tell you what the real problem may be, even more than this, and this is a very delicate issue and I don't want to talk about this out here, it is going to have to do with credibility, because, you know, her declaration--this guy, unless he is absolutely lying--and Marcia will back me up on this--the contacts he has with Lieutenant York are the kind that are very hard to forget him. He is a vicious, vicious guy who he has no respect for anybody. He can be talking to you--imagine if we came in this courtroom and you said, "Look, sit down," and said, "We are not sitting down, we don't have this tape, I have no respect for you, I have no respect for you, you are not really a Judge." You wouldn't forget me. I don't think you would forget me if I did that because I would be coming out of the lockup. This guy is pretty, pretty graphic and in transcript 9 a lot of this is devoted to Lieutenant York. Also, so I think that--so that is the--that is the fundamental problem, is that, you know, when we went up to Rappe and we basically--it is going to be about credibility.
MS. CLARK: Let me add one thing here because the book is a lot of puffing and blowing. I mean, he is really--he postures a lot, Judge. He is posturing in it. Whether it is for the purpose of book or that is the way he is, you know, I am not here to say, and I haven't listened to enough of the tapes to get a flavor for what is acting and what is real, and definitely a lot of posturing and a lot of exaggerating for the purpose of a book of fiction. The stories are puffed up, too. They are, Johnnie. You can see this.
MR. COCHRAN: I don't think there is posturing.
THE COURT: Well, let's put that aside.
MR. COCHRAN: Okay.
THE COURT: Let me ask you another question.
MR. COCHRAN: All right.
THE COURT: Is this talking about the men against women aspect relevant to the other aspect that is the more germane aspect, which is the racial animosity and the willingness to fabricate or frame or however you want to put it, because that is the context that I allowed that other stuff in.
MS. CLARK: That's right. Now, legally speaking, we have to brief that out, but you know, if the Court is inclined to let any of it in, we have a 356 issue with respect to what is the broader picture here and the jury should--
MR. COCHRAN: Can't get any broader. Broader picture only makes it worse.
MS. CLARK: There is not--excuse me.
MR. COCHRAN: I'm sorry.
MS. CLARK: There is balance to this and there are a lot of other things that Mark Fuhrman says, and there are a lot of anti-racist remarks that he says, you know, I'm an equal opportunity kind of guy and I will bust anybody who doesn't look like they belong where I see them, and that kind of thing, so there is that balance in there, too. But I think that it is important for the jury to know that the context of all this is a men against women context. It is not a racial diatribe by any stretch of the imagination. Because this there is going to require a lot careful briefing and right now the biggest problem I have with this tape is that there is no relevance to the issue that brought Kathleen Bell into focus, which is the willingness allegedly to fabricate probable cause against interracial couples.
MR. COCHRAN: Can I--
MR. SCHECK: If I may say--
MR. COCHRAN: Can I say something, your Honor? Just one second, Barry. These tapes--let me give you an example. This is not about any schemes or anything. He says tips on how you stop niggers basically. He says you see a Nigger in a Porsche and he doesn't have a $100.00 suit on, then you stop him because he has probably stolen the car. You don't look at the license plates. Let me tell you something, there is a crime on this tape as we've already talked to you about where he talks about some police officers being shot over in Hollenbeck Division and they go in and they beat the people until their faces turn to mush. There is so much blood on their uniform they have to come out and they have to spray themselves down with hoses. And then they--he has 66 or 68 allegations, and this is real, 66, and then he because internal affairs is so inept, and it is like a joke with them how they covered it up, and he is proud because he is the last guy they talked to. The suspect is the last guy they talk to. This guy is going to get prosecuted for this, Judge. He is going to be prosecuted, not any joke or anything, so these are worse than anything. The part about your wife does have some relevance.
THE COURT: Marcia--
MR. SCHECK: I think that in answer to your question, all the things--certainly anything that deals with Lieutenant York is irrelevant. The--much of the stuff that is misogynistic I think can be easily weeded out, there is more than enough, but the key point here, when you talk about probable cause, there is a passage in there where he describes his whole world view. That is, they teach you certain things in the academy, but that is not how you are a real police officer. You have to get out on the street and learn how to lie, cheat and set people up. And he describes in every aspect of the job how that is what you are really supposed to do, from the simple fact of you see a guy on the street and there is a gun nearby, you know he is a bad guy. The job of the police officer is to lie about seeing him throw the gun and create probable cause.
MS. CLARK: That is a lie. That is not what he says.
MR. SCHECK: That is on the tape. He talks about how he learns how to create probable cause at hearings and talks about lying.
MS. CLARK: That is not what it says.
MR. SCHECK: And there is a repeated theme throughout this tape about what you learn in the academy versus what you learn in the street and how real police officers are supposed to act that go directly towards manufacturing evidence. I'm talking about things as simple as how--if you are arresting a junky or a hype, if you squeeze their arms for old track marks to make them come out to help set up arrests, tearing up driver's licenses, to how to do chokehold in a certain way, to how to beat confessions out of people, how to shoot not to stop but to kill.
MR. COCHRAN: Shoot them in the mouth.
MR. SCHECK: There is repeat--and I have only read five transcripts--of modus operandi. It is more chilling than the testimony for the Mollen Commission in New York. It is an extraordinary thing. He names real names. There is no question this man is talking about his view of the street, his view of the job of the police officer and how that all ties into racial attitude as well.
MR. COCHRAN: Can I say one other thing?
MS. CLARK: Why are we doing this now? We are going to impeach this. A lot of what Mr. Scheck has said was misrepresented to the Court. I have read this, too.
THE COURT: Well, well, here is--obviously--
MS. CLARK: There is a lot of relevance issues here obviously, because we are not talking about use of force case here.
THE COURT: All right.
MR. COCHRAN: The one thing you should know, in addition to the part about Lieutenant York, now Captain York, and this guy's views about internal affairs, is that the last--and I had the tapes longer so I have perhaps gone all the way through in no. 12--here no. 12 it is very interesting because some of it may or may not be relevant, but it is about--it is July 28, 1994, after he has testified. And I was particularly amused because I was back east this weekend and when I saw Mr. Garcetti's remarks about how he wasn't an important witness, he said one of the most chilling things. What he says is, "I am the most important witness in the trial of the century. If I go down, their case goes bye-bye." This man is--the reason why that becomes really important, if you remember those reports of talking to his doctors and things, so there is a lot of issues this is going to bring up because some things become very relevant before. This is a megalomanic. So Mr. Garcetti perhaps hasn't seen that portion of it.
THE COURT: All right.
MS. CLARK: His role in the case? Why is that chilling?
THE COURT: Hold on, hold on, hold on.
MS. CLARK: Pumping himself up.
THE COURT: Let's circle back to what the legal issues are. The legal issues are, one, is there a conflict for me to hear this issue?
MS. CLARK: Right.
THE COURT: Which is a significant legal issue because we may be talking mistrial.
MS. CLARK: I just don't think so. I think it has to be referred out like we did before.
MR. COCHRAN: It is not that easy.
MS. CLARK: Well--
MR. COCHRAN: Okay.
THE COURT: It is not that simple. It is not that simple. Secondly, it is a double problem because if he is disparaging, A, of my wife, and B, of internal affairs where my wife is now the commanding officer, I mean, that makes it a--
MR. COCHRAN: We can stipulate to that.
THE COURT: --sort of a double--
MS. CLARK: I think we can stipulate.
THE COURT: --double whammy here, so you know, that is obviously a problem that we will have to broach first. Then the issue of what are we going to be able to use in the tapes, if anything, and we will have to have a hearing on the tapes, we will have to have McKinny tell you what they are. Fuhrman may have to testify.
MS. CLARK: Right.
MR. COCHRAN: Fuhrman--you think Fuhrman is going to testify?
MS. CLARK: We are talking about the hearing.
MR. COCHRAN: Even at a hearing he may want to testify. If he has got a lawyer, he is not going to testify any more. He is going to get indicted for a lot of reasons. Tourtelot may let him do it but a real lawyer is not going to let him do that.
MS. CLARK: Let's see what happens. Let me broach this: As the Court may recall, it was some months ago when there was an interview given by an ex police officer in Idaho or something and he said I remember Lieutenant York--it was then Lieutenant York--
THE COURT: Uh-huh.
MS. CLARK: --and Mark Fuhrman having run-ins and I know that they had bad words and I know that there was a bad scene between them, and we watched it on television in chambers.
MR. COCHRAN: Talking about Don Evans.
MS. CLARK: And I asked at that time that counsel be required to give a waiver of any possible conflict as a result of what appeared to be coming out in the wake of the affidavit given by Captain York in Rappe's court. And counsel refused at that time to give a waiver, but nevertheless, was put on notice that this issue existed and failed to object or ask for a mistrial, which it was his right to do at that time. I believe I even brought down 170 to show counsel that, you know, the trial is a nullity if you--you know, if this is indeed a conflict. The failure of counsel at that time to request the mistrial I think indicates an implicit waiver, but I'm acting in an abundance of caution at this time, but it is not as though counsel was not fully apprised of that issue. We all were here in chambers when that was aired on television.
MR. COCHRAN: We know all about Don Evans. In fact, we have talked to Don Evans. We know all about that. And we haven't waived anything. The point is we have not sought a mistrial in this, case as you are aware. The only reason I couch my issue the way I did, one of the things that was most helpful to us as we went about and talked to our client in advising him, was Captain York's declaration. That is somewhat put in a little bit of jeopardy, but perhaps that didn't have a lot of credibility, but the way I see this thing, it is troubling and we haven't had a chance to talk to Simpson about that, and it is an issue. I believe we can get through it. Let me talk a little bit about the big picture.
MS. CLARK: Well, wait a minute. Then the People would want to call her in his behalf.
MR. COCHRAN: Call who?
MS. CLARK: Captain York. Think about it.
MR. COCHRAN: You want to call Captain York?
MS. CLARK: Yeah.
MR. COCHRAN: I mean, you know--
MS. CLARK: Yeah. The guy wants to paint himself to be a bad boy.
THE COURT: Off the record.
(Discussion held off the record.)
THE COURT: Back on the record. Okay. I think we need to resolve the conflict.
MR. COCHRAN: We will be as succinct as we can and to the point.
THE COURT: Okay.
MR. COCHRAN: And quite frankly, Judge, we are going to be meeting over the lunch hour about what we are going to do. This is our witness. There is cross-examination, so we want to move ahead. What I was trying to say, in the big picture, we want to finish this case. We want to get this case over with by the end of this week or a couple days slipping in, and we don't want to spend a lot of time--this is very important, but I don't want to spend two weeks on these damn points. I can get you right to the point. Give you tips about stopping black guys.
THE COURT: You keep telling me I'm going to see transcripts and some tapes.
MR. COCHRAN: You are. This afternoon. Tomorrow morning?
MR. DOUGLAS: Tomorrow morning.
MR. COCHRAN: The tapes, and you may even want to get it enhanced, but yeah, we will get that and our copies will be right behind that.
MR. NEUFELD: Judge, again, so then you can think about scheduling, because I think in your own mind what you are thinking about happening here, at least in terms of procedure, it would be our wish in terms of the order of witnesses that after Dr. Rieders, Michele Kestler. This afternoon you are going to hear argument obviously and resolve once and for all the issue on Savage and Bosco. It would be our wish that after the--after Kestler and Bosco, Savage, whatever testify this week, that we move on to the Fuhrman witnesses, okay, and deal with the tape issue before we finish up our case. So if--if these tapes come to you tomorrow morning, you may want to keep the jury away for a day to start resolving these issues, I don't know, but I mean, it is going to be sooner rather than later.
MS. CLARK: We got to resolve some other preliminary issues first.
MR. NEUFELD: I understand that. I'm just telling you for scheduling.
MR. COCHRAN: The tapes--the jury is going to hear some portion of these tapes, there is no question about that.
MS. CLARK: Wait a minute. Judge Cochran here.
MR. COCHRAN: We heard them.
MS. CLARK: No question about that?
THE COURT: Wait, wait, wait. Marcia, please. The record--Mr. Cochran was talking.
MR. COCHRAN: I was not trying to be demeaning, Marcia. I was just saying based upon what we've heard and based upon the Judge's previous rulings, the jury will hear some portion of it. And we have a sense of how you see things and your fundamental fairness about this, so we can anticipate this. We want--as Peter has indicated, we have Rieders are we going to call.
MR. NEUFELD: Larry Ragle as a witness.
MR. BLASIER: After Fuhrman.
MS. CLARK: What is he going to testify to?
MR. NEUFELD: After Fuhrman.
MR. COCHRAN: Maybe Howard Weitzman. I told you there is a possibility we have a 402 on that and the reporter issues, and then we are going to end with two or three witnesses, and so we are right there now, and so we want to get those to you in just a matter of working and getting copies and everything.
THE COURT: Mr. Cochran, you appreciate that we are probably talking about a couple of days' worth of work for the Court just to review what is there, either me or Judge Rappe, so we are talking about the necessity of, you know, taking some time to do this.
MR. COCHRAN: Peter is right.
THE COURT: This is not something we will resolve in a 15-minute argument.
MR. COCHRAN: We have to get stuff even for our people. They want to do some stuff. We think in our position--it is our burden here. We plan to carry and go forward. And we want to make it as reasonable as we can for you and so we anticipate that, that we may have a little bit of time off because of that, and it is a lot of work to do.
MS. CLARK: I mean, there is a lot of work to do and there is a lot of briefing to do and there is going to be a lot of reading to do because we have been doing a lot of research on this. I don't exactly share obviously Mr. Cochran's view of the admissibility or relevance of these tapes, so that will have to be briefed out. I'm not going to argue it now. We will brief it now.
THE COURT: Okay.
MS. CLARK: I will be honest with you, Judge. It is really something that, you know, if this were another case we would probably resolve this in a very amicable and easy fashion, but because it is the kind of case it is, we are going to duke it out and that is too bad.
MR. COCHRAN: We don't want to duke it out.
THE COURT: Hold on. Let Marcia respond.
MS. CLARK: Nevertheless, we need to know at this point what else is coming after the Fuhrman tapes, because if the Fuhrman tapes do take a while to resolve and Judge Rappe needs to do research or you need to do research, that is a big difference between whether we have down time or not. If Rappe takes it, then we can continue with witnesses here. If not, then we have to shut down, but what we need to know in terms of--we have rebuttal, you know, so we have to schedule things, too, and we need to know what comes after Fuhrman because maybe we can take that up and do that.
THE COURT: Well, I think I gave you some hint, but that is not the issue. The issue we need to resolve most quickly is the conflict issue. Let me suggest my thought, that although it is inflammatory, what Fuhrman may or may not have said about my wife, and his description of those issues, I don't know that that business is germane to the issue of racial animus and willingness to fabricate.
MS. CLARK: I don't either. That is why we are briefing it.
THE COURT: I'm offering that to both sides as a way of expediting this matter, because frankly, I don't see how another Judge can step in and make an admissibility call in this context.
MS. CLARK: Uh-huh.
MR. SHAPIRO: The same problem we were faced with in getting the tapes.
THE COURT: Yeah, so that is--that is my thought.
MR. COCHRAN: Well, can we pursue that? Can we think about that among ourselves quickly?
THE COURT: I'm suggesting that if you want to pursue this, that you look and see what is there in the tapes that you think is relevant to those two issues and it is a--it is the combining of those two issues that I find most compelling, as I indicated to you.
MR. COCHRAN: The two issues are again, Judge?
THE COURT: The two issues are the racial animus and the willingness to fabricate. The combining of those two issues came together with Kathleen Bell. It didn't come together with some of the other witness that you offered.
MR. SHAPIRO: Your Honor, may I suggest there is a third issue and I think perhaps a more overriding issue with these tapes, and that is what we have been saying from day one and that is the credibility of Mr. Fuhrman.
THE COURT: I understand that is the foundational reason why we are doing all this.
MR. SHAPIRO: The credibility goes to other things that he said on the witness stand under oath.
THE COURT: All right.
MR. SHAPIRO: That are directly impeachable by the tapes.
THE COURT: Here is the thing. The Defense right now--
MS. CLARK: Talking about the "N" word in general?
MR. SHAPIRO: Nothing to do with race; just credibility.
THE COURT: The Defense--hold on, guys. The Defendant here is presenting this witness. What I'm suggesting is that what you offer and what you frame be pretty succinct as to what you are going after. Because obviously in eleven hours of tape I'm sure he talks about a lot of stuff that is irrelevant to what we are doing here.
MR. NEUFELD: Right.
MR. COCHRAN: That is going to be--
MR. SHAPIRO: That is not true.
MR. COCHRAN: That is going to be the issue. Let me give you one little example. May I? Again near the end of the tape, and this is in July of 1994 after he has been talking to Tourtelot, everybody's names come up. They use real names, of course. He is talking about Shapiro and this lawsuit they are going to come up with to try to take bob's house and his swimming pool and he is a Jew. He has a swimming pool--
MS. CLARK: He didn't say that.
MR. COCHRAN: He refers to him as a Jew.
MR. BLASIER: He wants the pool.
MS. CLARK: I know about the pool.
MR. COCHRAN: Tourtelot tells him, and Judge, so what he says, though, remember in court here he testifies, no, I'm not going to sue Mr. Shapiro. Tourtelot is over kissing up to Bob, you know, shaking his hand and everything. This is a lie.
MS. CLARK: Wait a minute.
MR. COCHRAN: There are certain things that are credibility issues about what he is saying as late as July.
MS. CLARK: He admitted he was suing on the witness stand.
MR. COCHRAN: He was questioned about suing.
MR. SHAPIRO: He said he was not.
THE COURT: Time out.
MS. CLARK: He had not filed a lawsuit, yet he admitted he was contemplating.
THE COURT: Hold it. Guys, you are on the record here. If you guys insist on talking over each other, you are making mush for a record. Obviously there is a direct refutation of something that he testified to. That is a completely different issue. But what I'm saying is that you should be cautious in how you frame what you want to present is the only piece of advice that I'm giving to you at this point.
MR. COCHRAN: We appreciate that.
THE COURT: I'm suggesting to you that if we do that, maybe we can avoid the conflict issue.
MR. COCHRAN: Okay, Judge. Let us put on the record and over the lunch hour--you have a meeting?
THE COURT: Of course they can always raise the conflict issue, too, independently.
MR. COCHRAN: But if they raise it and they declare a mistrial, we don't agree to it. I don't think they want to do it.
MS. CLARK: No, no, no, no, no, no. We would--my issue in is a conflict issue I think a waiver should be taken from the Defense.
THE COURT: You want to keep a clean record.
MS. CLARK: I don't want a mistrial, want to go anywhere; I just want a clean record.
MR. COCHRAN: As Detective Phillips said, if you want to keep a clean record, you should have kept Fuhrman shut up.
THE COURT: Let's do this: Go back to your respective corners, consult with your partners and cohorts, see what your strategy is, what you want your strategy to be, and we will talk about it when we close up this afternoon and see where we are going.
MR. COCHRAN: Is today a five o'clock day if we get that far?
THE COURT: We may not even get that far, and don't forget, it is Monday night.
MS. CLARK: What does that mean?
(Discussion held off the record.)
(At 9:47 A.M. the proceedings in camera were concluded.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. The record should reflect we've had an in chambers conference on the record regarding the alleged tapes and the--well, at this point--
MR. SHAPIRO: The existing tapes.
THE COURT: I haven't seen them yet so in my mind they are still alleged.
MR. SHAPIRO: As an Officer of the Court we can tell you they are not alleged.
THE COURT: All right. Thank you, Mr. Shapiro. And also the conflict issue that has been raised by counsel. All right. Anything else that we need to discuss before we continue with Dr. Rieders?
MR. COCHRAN: May I have a second, your Honor?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. COCHRAN: Your Honor, with regard to this whole matter of the Fuhrman tapes, I can tell you they do in fact exist. We will be preparing, as a proponent of the evidence, a brief for the Court setting forth those things that we think are very relevant, and they are numerous, but we understand the areas that the Court has previously indicated would be relevant. There is one other thing, Judge. There is this overall category of credibility where a witness may have told--said something on the stand we can now disprove. There is also something else these tapes bring to mind, and that is this particular officer's entire personnel record and what is in it, what should have been in it and what this Court may not have seen based upon the numerous incidents he talks about, physical violence and forces involved in this, and so we have a number of things to go back and look at. And then finally, you will recall that when this particular officer tried to get off the LAPD and told about all of his violent proclivities and his racist views, that was discounted by the LAPD who basically said, well, we don't believe you are a racist, we believe you are a liar, and then go back to work.
And the point then becomes some of those thing may now be very relevant by what we have now learned out of his own mouth, so there is a number of issues that we want to kind of focus on and then get back to the Court on as we resolve these and move as quickly as possible.
THE COURT: I realize there is a large circle of items that are potentially included here.
MR. COCHRAN: All right. Thank you, your Honor.
THE COURT: All right. All right. Let's have the jury, please.
(Brief pause.)
THE COURT: Mr. Dunne, welcome back.
MR. DUNNE: Thank you, sir.
(Brief pause.)
MR. COCHRAN: Your Honor, I have one other question with regard to the argument regarding the jury view. You asked us to put something in writing. Will the Court also allow oral argument on that?
THE COURT: Absolutely.
MS. CLARK: I thought we already resolved that.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: My apologies to you for the late start this morning; however, I've been meeting with the lawyers in chambers to discuss some issues that may be coming up that I have to deal with and to advise you that there may be some other delays later this week, as I have some other issues I need to deal with. All right. We have Dr. Fredric Rieders back with us. Good morning, Dr. Rieders.
DR. RIEDERS: Good morning, your Honor.
THE COURT: All right. Would you take the witness stand, please.
Fredric Rieders, called on behalf of the Defendant, having been previously sworn, resumed the stand and testified further as follows:
THE COURT: All right. The record should reflect that Dr. Fredric Rieders is again on the witness stand. And ladies and gentlemen, if you recollect, on July the 24th Dr. Rieders presented his direct testimony under questioning by Mr. Blasier and on July the 25th we started the cross-examination by Miss Clark. And because of Dr. Rieders' other commitments, we had to interrupt his cross-examination, completion of his testimony, and we are going to conclude his testimony this morning. Having said that, good morning, Dr. Rieders.
DR. RIEDERS: Good morning, your Honor.
THE COURT: Doctor, you are reminded, sir, you are still under oath. And Miss Clark, you may continue with your cross-examination.
MS. CLARK: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MS. CLARK
MS. CLARK: Good morning, Dr. Rieders. When we left off with your testimony on July 24th, sir, we were talking about the Sconce case, a case in which the victim was--they were attempting to determine whether or not the victim died of natural causes or of oleander poisoning. Do you recall when we were discussing that, sir?
DR. RIEDERS: I wasn't trying to determine whether he died of natural causes. I was trying to determine if--
MS. CLARK: Sir, would you please listen to my question. Objection, motion to strike as nonresponsive.
THE COURT: All right. Stricken. The jury is do disregard. Ask the question again.
MS. CLARK: Do you recall that we were discussing that topic when you last testified on July 24th, sir?
DR. RIEDERS: That is not the way I recall it.
MR. BLASIER: Objection, that misstates the prior testimony.
THE COURT: All right. He has indicated that is not how he recalls it. Next question.
MS. CLARK: Do you recall that you were asked to test some tissues as to whether or not--whether or not the victim died of oleander poisoning in the case of People versus Sconce back in 1988?
DR. RIEDERS: That is not the way I recall it.
MS. CLARK: What do you recall?
DR. RIEDERS: I recall that Dr. Basil asked me to corroborate on the gate analysis which he had done for the Coroner to determine whether or not oleander constituents were present in tissues.
MS. CLARK: And what was the point of doing that?
DR. RIEDERS: For the authorities to decide whether or not this was a natural death or not.
MS. CLARK: All right. And that is precisely--
DR. RIEDERS: Or to help them to decide.
MS. CLARK: All right. And the reason that you were asked to do, that, sir, is to provide scientific evidence that would indicate whether or not the victim had died of oleander poisoning or of natural causes; isn't that true?
DR. RIEDERS: That was the apparent intention of the attorneys--the area, yes.
MS. CLARK: And so you did perform those tests on tissues back in 1988, correct?
DR. RIEDERS: I performed the analysis in 1988; that's correct.
MS. CLARK: And you performed the analysis on tissues that were recovered from the 1985 autopsy, correct?
DR. RIEDERS: That had been in the freezer since 1985, right.
MS. CLARK: Is it your testimony, sir, that it had been in a freezer since the time that those tissues were taken at autopsy this 1985?
DR. RIEDERS: That is what Dr. Lovell told me, yes.
MS. CLARK: Sir, do you recall performing some of your testing on the fixing fluid known as formalin?
DR. RIEDERS: Yes.
MS. CLARK: And that fixing fluid is used to preserve tissues that are refrigerated and not frozen; isn't that correct?
DR. RIEDERS: That fluid is used on tissues which may not even be refrigerated, which are kept in a glass jar in storage for making sections, but the tissues that Dr. Lovell sent me, or rather, that Dr. Basil sent me, because I got them from Dr. Basil, according to him and Dr. Lovell, had been kept frozen.
MS. CLARK: They were kept frozen in the fixing solution called formalin?
DR. RIEDERS: No.
MS. CLARK: Then why were you testing formalin for the presence of oleandrin?
DR. RIEDERS: I think that that was in addition to tissues. I don't remember why, but the formalin that I received evidently had been in contact with the tissues because it turned--I believe it turned out to have oleandrin in it. I'm not sure about that. It is one of the pieces that goes with the case. That is all I recall--can tell.
MS. CLARK: What would be the purpose of having formalin? Why would you have formalin if the tissues were frozen?
MR. BLASIER: Your Honor, I'm going to object on 352 grounds.
THE COURT: Overruled.
DR. RIEDERS: Because the formalin would reflect the environment of tissues that are kept in formalin, I assume, or else the formalin was material used for embalming the body, I don't recall. Either one happens all the time, that with old cases one gets a sample of formalin, either from tissues--from wet tissues as they call it, or from the embalming fluid.
MS. CLARK: Is it your testimony, sir, that they put tissues taken from a victim at autopsy into formalin and freeze it in the formalin?
DR. RIEDERS: No. I didn't say that.
MS. CLARK: All right. So if you had formalin fluid that you--
DR. RIEDERS: Excuse me. I made it very clear before that the tissues that are put in formalin are usually kept on a shelf, not even refrigerated.
MS. CLARK: Then the fact that you tested formalin fluid from the tissues taken from the victim in the Sconce case would indicate that they were not frozen right away, wouldn't it?
DR. RIEDERS: It doesn't indicate anything except that I got some formalin which could have been embalming fluid or it could have been formalin in which tissues were fixed.
MS. CLARK: Nevertheless, you did test the tissues and the formalin that was recovered from the 1985 autopsy, correct?
DR. RIEDERS: I would have to refresh my memory.
(Brief pause.)
MS. CLARK: Exactly what is it that you are trying to refresh your memory about at this time, sir?
DR. RIEDERS: Whether or not I tested formalin.
MS. CLARK: And the file that you are looking through, sir, is that your pile from the Sconce case?
DR. RIEDERS: Yes. What is lit of it anyway.
MS. CLARK: You don't have the entire file there?
DR. RIEDERS: Not here.
MS. CLARK: Why do you not have the entire file?
DR. RIEDERS: The entire file or the rest of all kind of extraneous things are in the hands of Mr. Blasier.
MS. CLARK: Mr. Blasier?
DR. RIEDERS: Yes.
MS. CLARK: And when did you give Mr. Blasier this file, sir?
MR. BLASIER: Objection, irrelevant.
THE COURT: Sustained.
MS. CLARK: Your Honor, I would like to--
THE COURT: This is far afield about formalin and whether or not it was tested.
MS. CLARK: I will withdraw the question, Dr. Rieders, about formalin.
THE COURT: All right.
DR. RIEDERS: Yes.
THE COURT: Next question.
DR. RIEDERS: I analyzed it as fixing fluid. That is what it was labeled.
MS. CLARK: Okay. And that is formalin, isn't it, sir, fixing fluid?
DR. RIEDERS: In this case, yes. There are other fixing fluids.
MS. CLARK: So you did analyze that in this case?
DR. RIEDERS: Yes.
MS. CLARK: And that would tend to indicate to you--never mind. Strike that. When you got the tissues, sir, were they frozen?
DR. RIEDERS: Yes. I got the tissues. I got homogenates and blood as they were frozen. They were shipped to me frozen by Dr. Basil.
MS. CLARK: You maintained them in a frozen condition, didn't you?
DR. RIEDERS: Yes, except for sampling.
MS. CLARK: And you performed three tests, correct, the radioimmunoassay fluorescent spectrometry and thin layer chromatography, correct?
DR. RIEDERS: Fluorescent spectrophotometry, yes, and high performance thin layer chromatography which is a little different.
THE COURT: All right. Dr. Rieders--
MS. CLARK: Now, those tests--
THE COURT: Why don't you swing the microphone--
DR. RIEDERS: I'm sorry.
MS. CLARK: Now, those tests were the state of the art back in the sixties, weren't they?
THE COURT: Sixties?
MS. CLARK: Yeah, sixties.
MR. BLASIER: Objection, vague as to the terminology.
THE COURT: Overruled. What is the relevance of the sixties? These tests were done in the late eighties.
MS. CLARK: I know, your Honor.
THE COURT: Proceed. No, proceed.
MS. CLARK: That is the point.
THE COURT: Proceed.
DR. RIEDERS: Actually in the sixties--
THE COURT: Wait, wait, wait.
DR. RIEDERS: I'm sorry.
THE COURT: Proceed.
MS. CLARK: Do you recall--when you began practicing as a toxicologist, that was in the fifties; is that correct, sir?
DR. RIEDERS: In the forties.
MS. CLARK: In the forties, and in the sixties what was the state of the art testing?
MR. BLASIER: Objection, irrelevant.
THE COURT: Sustained.
MS. CLARK: All right. When you performed those tests, the result you got was positive for the presence of oleandrin, correct?
DR. RIEDERS: Yes, and oleandrigenin.
MS. CLARK: Oleandrigenin. The premise of oleandrigenin is an important fact, is it not, sir?
DR. RIEDERS: In the identification, yes.
MS. CLARK: And that is important because when you have decayed or decomposed tissue, the substance oleandrin may break down into a metabolite, in this case oleandrigenin, so even though you don't have oleandrin, if you have oleandrigenin, you can still substantiate that it is present; isn't that right?
DR. RIEDERS: No, ma'am, that is not right, if I may correct you.
MS. CLARK: If it is not, sir, then let me ask you another question.
DR. RIEDERS: Well, let me explain, if I may.
MR. BLASIER: Objection.
THE COURT: Hold on. He can answer the question. Answer the question, doctor. Go ahead.
DR. RIEDERS: I said no, that is incorrect. May I explain what is correct? Oleandrigenin is formed in the body as well when you take it--when you take oleandrin into the body. It is also formed in the plant itself, in the oleander plant itself. It also is formed if oleander--oleandrin starts to break down for any other reason. So in this particular case the issue was not whether this was a decomposed tissue, but whether or not there were compounds present which would give a pattern, which is more important than just a single compound that is consistent with and therefore corroborative of having originated in oleander, the constituents. That is what the oleandrigenin means in this case, that on the thin layer chromatography that plus some other metabolites or breakdown products of oleandrin, were found, giving a pattern which gives a high degree of identifiability to the compound because you have a whole pattern rather than just one little streak.
THE COURT: Next question.
MS. CLARK: So then the finding of oleandrigenin was an important corroborative tool for you to determine that in fact that it was oleandrin that you saw?
MR. BLASIER: Objection, argumentative, 352.
THE COURT: Overruled.
DR. RIEDERS: It was one of them, yes, of course.
MS. CLARK: Do you have the report that you submitted on the case concerning your findings?
DR. RIEDERS: All I have is the handwritten report. I don't have any of the typed copies, or a copy of the handwritten report I should say.
MS. CLARK: All right. Doctor, I'm going to show you a copy of the report--the typed report that you did back in the Sconce case. I will give a copy to counsel.
(Brief pause.)
MS. CLARK: I'm going to show you a copy as well, doctor, and I'm going to ask you to point out where in this report that you determine that you found oleandrigenin?
DR. RIEDERS: It is not in the report, but it is in my notes.
MS. CLARK: It is not in the formal report, doctor?
DR. RIEDERS: No, it isn't.
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MS. CLARK: You acknowledge that is an important finding, the oleandrigenin, yet you did not put that into the report?
DR. RIEDERS: It wasn't important to the report. It was important to my conclusion of the report to have enough factors to call this with reasonable certainty, the presence of oleander.
MS. CLARK: And let me ask you then, doctor, why was it not important to put in a report when you just acknowledged that the constituents of oleandrin were an important corroborative tool?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MS. CLARK: Did you not put that into your report to Dr. Lovell?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: (No audible response.)
MS. CLARK: Is that right?
DR. RIEDERS: That is what right.
MS. CLARK: It did not include the finding of oleandrigenin in your report to Dr. Lovell; is that correct, sir?
DR. RIEDERS: Hold on.
(Brief pause.)
DR. RIEDERS: That is correct.
MS. CLARK: Now, don't you--now, Dr. Lovell, he was the Coroner back then; is that correct?
DR. RIEDERS: That's correct; pathologist.
MS. CLARK: Pathologist. And he had signed off on the report back in 1985 in which his medical examiner, Dr. Holloway, determined that the victim died of natural causes actually from a fatty liver--liver disease, correct?
DR. RIEDERS: I don't have any of that information.
MR. BLASIER: Objection, no foundation.
THE COURT: He has indicated he has no information.
MS. CLARK: Doctor, did you read the autopsy report created by Dr. Holloway back in 1985?
DR. RIEDERS: I don't recall and I don't have a copy of it.
MS. CLARK: You don't recall? You remember testifying in the Sconce preliminary hearing, do you not?
DR. RIEDERS: Yes, I remember testifying.
MS. CLARK: And do you recall testifying that you had in fact read that autopsy report?
DR. RIEDERS: I don't recall it, but if a transcript says so, then I did. I'm telling you I don't recall.
MS. CLARK: Would it refresh your memory, sir, if I were to show you a page from that preliminary hearing?
DR. RIEDERS: Possibly.
MS. CLARK: In which you acknowledged that you read the autopsy report?
DR. RIEDERS: Well, I don't--you know, I don't deny that I read it. I don't recall that I read it and I don't have a copy now of the autopsy report. That is all I told you.
MS. CLARK: Well, then let me show you a copy of the autopsy report, sir.
MR. BLASIER: Objection, 352.
THE COURT: Sustained. It is irrelevant.
MS. CLARK: May I be heard, your Honor?
THE COURT: No.
MS. CLARK: Were you aware, at the time that you did your testing, sir, that there had already been an autopsy report prepared in which it was written that the victim died of natural causes?
MR. BLASIER: Objection, no foundation, irrelevant.
THE COURT: Sustained.
MS. CLARK: Sir, were you--did you--when you testified at the preliminary hearing you recall testifying that there had been an initial determination that the victim died of natural causes based on the autopsy report, correct?
DR. RIEDERS: (No audible response.)
THE COURT: Counsel, I don't know what the relevance is of this because we've already established the reason he was doing this testing was to determine whether or not this person died as a result of oleander poisoning, not natural causes, so the jury already knows that. That was the purpose of this testing, so let's move on.
MS. CLARK: This goes to the nature of the report, your Honor.
THE COURT: The report is not real relevant.
MS. CLARK: All right. Dr. Rieders, nevertheless, you acknowledge you did not write the finding of oleandrigenin into your report?
MR. BLASIER: Objection, asked and answered.
THE COURT: Sustained.
MS. CLARK: You did put it in your notes, is that what your testimony is?
DR. RIEDERS: It was a part of the observation, an important part of it, just like in the paper that we wrote.
MS. CLARK: Can you show me the notes that you are referring to?
DR. RIEDERS: Well, maybe.
(Brief pause.)
DR. RIEDERS: I don't know whether I still have them.
(Brief pause.)
DR. RIEDERS: No, it is not in here the rad sheet and the thin layer results or the thin layer laboratory notes are not in here. None of the lab notes are in here.
THE COURT: All right. Doctor, why don't you swing the microphone back.
MS. CLARK: So you have nothing in the notes now before you that indicate that you found oleandrigenin?
DR. RIEDERS: That is what I said, yes.
MS. CLARK: And in your testimony at the Sconce preliminary hearing--
DR. RIEDERS: I have nothing in my notes of the actual description of the thin layer.
MS. CLARK: You recall testifying at the preliminary hearing in the Sconce case, sir? You never mentioned the finding of oleandrigenin, do you recall?
DR. RIEDERS: I don't recall. I may not have.
MS. CLARK: And if we take time over the break and I let you review the testimony that you have in the Sconce matter, you can refresh your memory as to whether or not you did in fact testify to that finding?
MR. BLASIER: Your Honor, I'm going to object and ask to approach.
THE COURT: Sustained. No. Sustained. It is irrelevant.
MS. CLARK: Okay. Dr. Rieders, do you recall having a conversation with a man by the name of Dr. Brian Finkle in Anaheim back in 1990?
DR. RIEDERS: Yes, yes.
MS. CLARK: And that man was a toxicologist for the Defense in the Sconce case; is that correct?
DR. RIEDERS: Yes.
MS. CLARK: And you recall telling him that you found one spot on your thin layer chromatography which would indicate that you only found oleandrin and not oleandrigenin?
DR. RIEDERS: Absolutely not. I have a rather clear recollection of my conversation with Brian. That is not what I told him.
MS. CLARK: So if he came and told us that, sir, that would be incorrect? Is that your testimony?
MR. BLASIER: Objection, improper question. Argumentative.
THE COURT: Overruled.
DR. RIEDERS: If that is what he told you, he is mistaken or else--
MS. CLARK: All right. Now, you turned in your report indicating the finding of oleandrin, correct?
DR. RIEDERS: The qualitative finding of oleandrin, yes.
MS. CLARK: And after that you testified at a preliminary hearing in October of 1990 concerning your finding and that was a--concerning your finding of oleandrin in the body of the victim, correct?
DR. RIEDERS: That's correct.
MS. CLARK: And shortly after that the Defense and the Prosecution agreed to do retesting. Do you recall that?
DR. RIEDERS: I don't know how shortly afterward, but it was afterwards, yes.
MS. CLARK: Well, you testified in October of 1990 the Defendant was held to answer and the testing began in the beginning of 1991. Does that sound about right to you?
DR. RIEDERS: I thought it came in April of 1991 because when we met in I think Anaheim and Brian Finkle and I went over what I still had left, they hadn't done the testing yet. They hadn't contacted the testing people.
MS. CLARK: Before they did the testing, though, the body of the victim was exhumed, correct?
DR. RIEDERS: It wasn't exhumed. It was lying exposed in the mausoleum so it was pulled out of the mausoleum and reautopsied, what was left of it, by Dr. Lovell and a Dr. Root.
MS. CLARK: Right.
DR. RIEDERS: And at that time specimens were taken from that cadaver and those are the specimens that were then forwarded to--for testing.
MS. CLARK: Now, Dr. Rieders, you were aware of that exhumation--well for lack of a better term, exhumation, but you were not present, correct?
DR. RIEDERS: At the time I wasn't aware of it. I certainly wasn't present.
MS. CLARK: You were or were not aware of it?
DR. RIEDERS: I was not, not at the time.
MS. CLARK: Okay. When did you become aware of the exhumation?
DR. RIEDERS: When Dr. Lovell called me and told me that he had done an exhumation with Dr. Root and that they had taken specimens and the half that Dr. Root had was going to Brian--to Jack Henion at Cornell and the other half he was going to send to me for safekeeping.
MS. CLARK: Sent exhumation tissues to you?
DR. RIEDERS: For safekeeping, yes.
MS. CLARK: And why would he send exhumation tissues to you, Dr. Rieders?
DR. RIEDERS: Ask him.
MS. CLARK: All right. Were you planning to do testing on it?
DR. RIEDERS: No.
MS. CLARK: So you were just supposed to keep them, hold them?
DR. RIEDERS: Well, that is what he asked me to do.
MS. CLARK: Can you think of any reason why Dr. Lovell would not keep those himself at the morgue?
MR. BLASIER: Objection, calls for speculation, irrelevant.
THE COURT: Sustained.
MS. CLARK: All right. Now, shortly after that exhumation, sir, were you informed by the D.A. that the testing performed by Dr. Henion for the presence of oleandrin turned up negative?
DR. RIEDERS: Harvey Giss, yes, notified me.
MS. CLARK: All right. Do you recall also talking to a Prosecutor by the name of Kevin Denoce?
DR. RIEDERS: I don't recall. The only thing I recall about Denoce is two things: One, that he--I was supposed to contact him prior to trial, but to wait. The other thing I recall is that he sent through Harvey Giss a paper to me which he asked me to review whether or not that could be a basis for questioning the results and that was a paper that dealt with a substance that is called national natrutic, N-A-T-R-U-T-I-C, hormone, which tends to cross-react with digitalis and probably oleandrin in the radioimmunoassay test. That is the only thing I recall about Denoce. That is the question only that he raised.
MS. CLARK: You don't recall discussing with Denoce--with Mr. Denoce the reason--well, let me strike that. You don't recall Denoce calling you to ask you to give him a scientifically acceptable reason that would reconcile your positive results with Dr. Henion's negative results?
DR. RIEDERS: Absolutely not. Nobody asked me to reconcile anything.
MS. CLARK: No one ask you to reconcile anything?
DR. RIEDERS: Nobody talked to me, for practical purposes, after that, as far as I recall.
MS. CLARK: Sir, I have a memo here from Denoce that I would like to show you.
MR. BLASIER: Objection.
THE COURT: Show it to Mr. Blasier.
MS. CLARK: Uh-huh. Let me direct counsel to page 6, the bottom of page 6, going up through all the page 7.
(Brief pause.)
THE COURT: This is a memo from Mr. Denoce to Dr. Rieders?
MS. CLARK: Yes, your Honor. I would ask that it be marked next in order--no, this is to his boss, Michael Bradbury.
MR. BLASIER: I object and ask to approach.
THE COURT: Wait. It is a memo from Denoce to Bradbury?
MS. CLARK: Right. It is a memo from Kevin Denoce to Michael Bradbury and Harvey Giss in which--
THE COURT: Okay.
MS. CLARK: People's next in order.
MR. BLASIER: I object and ask to approach.
THE COURT: All right. With the court reporter.
(The following proceedings were held at the bench:)
(Brief pause.)
THE COURT: Interesting. All right. I have looked at page 6 and 7. Mr. Blasier, what is your objection?
MR. BLASIER: My objection is this whole line of questioning. This is--this is extremely extraneous. We are going far afield. Dr. Rieders has talked to Dr. Henion and we have Dr. Henion's report who says I'm not saying that Dr. Rieders was wrong. Dr. Henion tested tissue that was taken in the mausoleum that was five years old and it is described is a being the condition of mud. His results were that he couldn't find anything. He says I can't tell what you might have been there before. This is completely improper impeachment and now we have a memo that--I haven't read the whole thing. I'm assuming it talks about the decision to prosecute or not prosecute. I think this is completely far afield and completely inappropriate and I would ask that the Court direct Miss Clark to ask no further questions along this and to strike any testimony.
MS. CLARK: Your Honor, this witness has repeatedly been deliberately evasive and untruthful about what has gone on in the Sconce case, and that is because he knows he made major mistakes in a capital murder case that is highly significant to his competence, which is significant to this jury.
THE COURT: Which is why I'm allowing you to go on with this line of questioning, but this particular memo at this point is hearsay, isn't it?
MS. CLARK: I'm only attempting to refresh his recollection. He has indicated to us that no one asked him for an explanation. That is a direct lie because that--we have--what we have here--
THE COURT: Keep your voice down.
MS. CLARK: What we have here is Dr. Rieders explaining to Denoce why this was his effort to explain.
THE COURT: The only thing you can do at this point, since it is a hearsay document, since it is not to him and wasn't addressed to him, is ask him to look at it to see if that refreshes his recollection on that particular point. And if it doesn't, that is the end of it. All right.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Miss Clark, that memo will be marked People's 585.
MS. CLARK: Thank you, your Honor.
(Peo's 585 for id = memo)
MS. CLARK: Now, Dr. Rieders, is it your testimony that neither Mr. Giss or Mr. Denoce, neither of the Prosecutors, ever asked you to reconcile your positive findings with Mr. Henion's finding?
DR. RIEDERS: That's correct. The only one that spoke to me were two people. One was Harvey Giss and the investigator was Simi Valley, Ventura County or L.A., the chief investigator of this case, the police investigator I believe.
MS. CLARK: All right.
DR. RIEDERS: Those were the only two people who spoke to me, neither of which asked me to reconcile it. Quite to the contrary. If I may, I can tell you what I was told.
MS. CLARK: We can go back to that later, doctor. Right now let me--
MR. BLASIER: Objection.
THE COURT: Overruled.
MS. CLARK: Dr. Rieders, my question to you is only this: After Dr. Henion's results came out, found no oleandrin--
DR. RIEDERS: Right.
MS. CLARK: --is it your testimony that no one asked you to reconcile the difference between your finding and his? Is that your testimony?
DR. RIEDERS: That is absolutely the correct thing.
MS. CLARK: I'm going to show you--you have no memory of that whatsoever?
DR. RIEDERS: None whatever that anybody asked me to reconcile.
MS. CLARK: Doctor, I would like to show you this memo written by Mr. Denoce and tell me if the representations he makes concerning statements made to you refreshes your memory and is true or false.
THE COURT: Miss Clark, that is actually not a question. It is a question does that refresh his recollection. That is the only question; not the content of the memo.
MS. CLARK: Does that refresh your recollection, sir?
THE COURT: Give him a chance to read it.
DR. RIEDERS: May I read it?
MS. CLARK: Yes.
DR. RIEDERS: Well, I will let you know when I'm done reading it.
THE COURT: All right. Let's stop that.
(Brief pause.)
DR. RIEDERS: All right. I'm finished reading it. What is your question?
MS. CLARK: Do the passages in which I have just pointed out to you that you can see bracketed here in black, on pages 6 and all of page 7, refresh your memory as to a conversation you had with Mr. Denoce concerning your attempt to reconcile the results between yours and Dr. Henion's?
DR. RIEDERS: Not only does it not refresh my memory, but I am reasonably certain that I did not have this conversation with Mr. Denoce.
MS. CLARK: Could you have had this conversation then with someone else, Dr. Rieders?
DR. RIEDERS: No.
MS. CLARK: Then it is your statement here that the statements attributed to you never happened?
MR. BLASIER: Objection.
THE COURT: Sustained. Without foundation.
DR. RIEDERS: My statement--
THE COURT: Wait, wait.
DR. RIEDERS: I'm sorry.
THE COURT: I have sustained the objection. Next question.
MS. CLARK: May I have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Then you offered no explanation to anyone, back in 1991, to attempt to reconcile your results with Dr. Henion's?
DR. RIEDERS: I don't know what you mean by I offered no statement to anyone. Of course I talked to people about it and I pointed out that his tests had nothing to do with my tests. He tested pieces of fish-like and rotten meat, like leftovers from a body that had lost more than half of its weight in decomposition taken years later than the specimens that I had tested. And to expect a positive result in a case like this is very much wishful thinking.
MS. CLARK: So it is your testimony, sir, then, that you did tell people back in 1991 that Dr. Henion tested only the tissues from the exhumation in 1991 and that is why he got a different result? Is that your testimony?
DR. RIEDERS: We both tested tissue--I'm sorry. From 1991? I don't know what else he tested. I don't see anything else in there except maybe the formalin fluid that--I don't know whether he tested that, but he tested tissues that Dr. Lovell had obtained from the decomposed remains of waters. That is what he tested. It is in the report.
MS. CLARK: All right. In your opinion then, sir, is it your testimony that back in 1991 you spoke to people and you told them that the reason his negative result occurred is because he tested the older more decayed tissues removed in 1991? Is that your testimony?
DR. RIEDERS: I told him what he did and what I did and that expecting to find anything in those tissues was wishful thinking, yes. My staff I talked to about it.
MS. CLARK: So your answer is, sir, yes, you told people in 1991 that Dr. Henion tested the tissues recovered from the victim at the exhumation in 1991 and that is why you got different results? Is that your testimony?
DR. RIEDERS: That is my recollection, yes.
MS. CLARK: And who is it that you told that to in 1991?
DR. RIEDERS: My staff.
MR. BLASIER: Objection, irrelevant, calls for hearsay.
THE COURT: Sustained. Sustained.
THE COURT: Proceed.
MS. CLARK: You informed no one on the Prosecution that that was the reason for the negative result that he got?
DR. RIEDERS: I didn't talk to anyone on the Prosecution after that, for good reason.
MS. CLARK: And what was that good reason, Dr. Rieders?
MR. BLASIER: Objection, irrelevant.
THE COURT: Sustained.
MS. CLARK: Did you call Dr. Henion in 1991 to attempt to reconcile those results?
DR. RIEDERS: After the analysis, no.
MS. CLARK: Now, in reviewing the document, sir, that I showed you, People's 585, nowhere in this document does it indicate an explanation that Dr. Henion--
MR. BLASIER: Objection.
THE COURT: Sustained, sustained. Foundation.
MS. CLARK: Doctor, would you agree that the testing of older tissue that was substantially decayed that gave a negative result for poison would be a scientifically acceptable basis to explain the discrepancy in results?
DR. RIEDERS: Would you repeat that, please.
MS. CLARK: Yes. Would you agree, doctor, that the explanation that Dr. Henion tested the older more decayed tissue would explain in a scientifically acceptable manner the reason why he got negative results and you got positive results?
DR. RIEDERS: Certainly.
MS. CLARK: And that explanation would reconcile the difference and remain--and allow your findings to remain valid, wouldn't it?
DR. RIEDERS: As valid as they were before.
MR. BLASIER: Objection, argumentative, your Honor.
THE COURT: Overruled.
DR. RIEDERS: Yes.
MS. CLARK: Your Honor, I need to approach.
THE COURT: With the court reporter.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Miss Clark.
MS. CLARK: Yes, your Honor. I need to address the Court. I'm about to wrap up the Sconce inquiry and go into our case and we will be done quickly. However, a couple of things came to light after we began the testimony that I think makes the dismissal of the case very relevant and important impeachment of this witness. Two things. Now three actually. He has admitted that he did not offer the scientifically acceptable basis for reconciling the differences that would have permitted the case to continue. As a result of his inability or failure to do so back in 1991, the case was dismissed. He has attacked Denoce saying that that conversation never occurred and the representations made in this memo never occurred. If that were true, if what he is saying were true, that he knew back then that it was the difference in the two tissues and then the case would never have been dismissed. His failure to communicate that to the Prosecutors indicates a lack of his own belief in the validity of that, but it is important to show that he could have prevented the dismissal of capital murder charges had he offered the scientifically valid reason that he knew existed at the time. Furthermore, he did in fact offer that explanation to Dr. Lovell in January of `95, two months after he was put on the Defense witness list, and again last week contacted Dr. Henion to try to pressure him into agreeing that he got the same--he got the exhumation tissues which we will prove is not true, is not true. He tested splits for Dr. Rieders. Dr. Henion tested splits of Dr. Rieder's tissues, we will prove that, but the fact of the dismissal, it goes to the heart of the impeachment of this witness' failure to come forward with a reasonable explanation that could have permitted the case to continue. So I'm asking leave the Court now, in light of this new information, to allow me in two or three questions, the fact that the case was dismissed for failure to give valid scientifically acceptable reason.
MR. BLASIER: This is a legal conclusion from the D.A.'s office that has many things to prove besides just this. It would be completely improper to put in a conclusion from a District Attorney that they dismissed a case when it could relate to all sorts of different things in terms of motive, opportunity, intent. This was one small part of that case. It is completely irrelevant as to what the D.A. decided to do.
MS. CLARK: Can I show the Court the copy of the letter to Dr. Lovell that I would like to show this witness, because it shows that he knew the case was going to be dismissed. And it is important because the D.A. was calling him to say, hey, look, we are going to have a dismissal unless you can reconcile the difference.
THE COURT: Here is the problem, though: What we need to establish here is that Dr. Rieders did testing in this case and got different results than other scientists who you will probably call and say that Dr. Rieders' results were mistaken.
MS. CLARK: Uh-huh.
THE COURT: That is the issue. Whether or not something is--cases are dismissed or continue to be prosecuted--if you want to bring Mike Bradbury into that, I think he is competent to testify to those things, but this witness is not competent to testify to that.
MS. CLARK: It is impeaching his credibility and failure to give the valid scientific reason why which he apparently had which could have prevented the dismissal and says he knew about it at the time but failed to offer it to the D.A.
THE COURT: I find that highly speculative and I will sustain the objection.
(The following proceedings were held in open court:)
THE COURT: Proceed.
MS. CLARK: All right. Back in 1991 then you wrote--may I ask you, sir, did you write a letter to the District Attorney to explain to him what you explained to us, the reason for the discrepancy in yours and Dr. Henion's findings?
DR. RIEDERS: I don't recall that I did. I don't think so.
MS. CLARK: Then did you write any letter to Dr. Lovell back in 1991 to explain that there was a valid acceptable scientific reason for the discrepancy in your results?
DR. RIEDERS: I don't recall that I did.
THE COURT: Hold on. Doctor, would you pull the microphone around, please.
DR. RIEDERS: (Witness complies.)
MS. CLARK: Did you contact Dr. Henion to discuss with him the discrepancy in your results back him in 1991?
DR. RIEDERS: 1991? No, I did not.
MS. CLARK: Did you write him a letter back in 1991 to ask him to discuss with you the discrepancies in your results?
DR. RIEDERS: No. I think we were both on a program at a Pittsburgh conference subsequently and talked about it a little bit then, but that is the only time I think, other than very recently, that I talked to Jack Henion.
MS. CLARK: Now, you knew that you were to return to complete--when was that Pittsburgh conference, sir?
DR. RIEDERS: I think `92. I'm not sure. We were both on the same program.
MS. CLARK: Did you have any knowledge of the status of the Sconce case back in 1991?
MR. BLASIER: Objection.
THE COURT: Sustained.
MS. CLARK: Okay. All right. You knew you were to return to this court to complete your testimony today, August 14; is that right, sir?
DR. RIEDERS: Yes.
MS. CLARK: And you called Dr. Henion on Friday, August 11th, this past Friday, did you not?
DR. RIEDERS: Yes.
MS. CLARK: And you called him for the purpose of discussing his findings in the Sconce case; isn't that correct?
DR. RIEDERS: No.
MS. CLARK: You called him to discuss what tissue he had tested in the Sconce case; isn't that correct?
DR. RIEDERS: No.
MS. CLARK: You called him to get him to agree that he tested the exhumed tissues and not the autopsy tissues; isn't that correct, sir?
DR. RIEDERS: No.
MS. CLARK: Did you discuss with Dr. Henion on this past Friday, August 11th, what tissues he had tested back in 1991?
DR. RIEDERS: It came up, yes.
MS. CLARK: And that was the first time you had ever called Dr. Henion; isn't that correct?
DR. RIEDERS: Yes.
MS. CLARK: And you tried to get him to say that he had tested exhumed tissue and not the autopsy tissues that you tested; isn't that correct, sir?
MR. BLASIER: Objection. The form of the question is argumentative.
THE COURT: Sustained. Rephrase the question.
MS. CLARK: Did you tell Dr. Henion that you believed he had tested the exhumed tissue and not the 1985 autopsy tissue that you tested?
DR. RIEDERS: I didn't tell him I believed that. I told him that that is what was in his report, which I had in front of me. He didn't have his in front of him.
MS. CLARK: And he disagreed with you, didn't he, Dr. Rieders?
DR. RIEDERS: He argued about it. He said he would have to look it up. That is all I know.
MS. CLARK: Isn't it true, Dr. Rieders, that he told you that his notes and his memory he recalled distinctly that he had tested 1985 autopsy tissues? Didn't he tell you that, sir?
DR. RIEDERS: I don't believe he told me that. He told me he thought he might have tested other tissues and he would check it out from his report, which I have here.
MS. CLARK: You don't recall him telling you that he did in fact test the autopsy tissues?
DR. RIEDERS: He told me he thought he might have and he will check his report.
MS. CLARK: Did you try also--did you also ask him to sign an affidavit to the effect that he tested only the exhumed tissues and not the autopsy tissues?
DR. RIEDERS: No. I asked him to verify what was in his report in an affidavit, current affidavit, and to add to it also, which is in his report, that oleandrin is not a substance which is resistant to degradation by putrefaction, which he agreed. He didn't agree to write an affidavit, but he agreed that it was, as did he in his report.
MS. CLARK: Isn't it true, Dr. Rieders, that he refused to sign the affidavit because it was not true, because he did test tissues taken from the 1985 autopsy?
DR. RIEDERS: Absolutely not. He said he didn't want to have anything to do with you or me or anybody else in this case. He was sick and tired of it. That is what he said.
MS. CLARK: Sir, did he tell you that he had spoken to me?
DR. RIEDERS: He said he had been pestered by the Prosecution from hell to breakfast. I'm quoting him.
MS. CLARK: Is that--all right. Dr. Rieders, you wanted to convince Dr. Henion that he had tested older tissues because if that is not the case, then the explanation you gave to this jury is wrong; isn't that correct?
DR. RIEDERS: May we have one question at a time? I did not try to persuade him anything, and so that the second part really isn't relevant to this.
THE COURT: All right. Let's wind up this area, counsel.
MS. CLARK: Now, back in 1991, sir, you were made aware of the fact that Dr. Henion used the LC mass spectrometer. Do you recall that?
DR. RIEDERS: Sure, yeah.
MS. CLARK: And as a matter of fact, at the preliminary hearing didn't the Defense attorney call you as to whether or not you thought the mass spectrometer could be used to test for oleandrin?
DR. RIEDERS: I don't recall.
MR. BLASIER: Objection, irrelevant.
THE COURT: Sustained. Ask him a contemporaneous question.
MS. CLARK: I'm sorry?
THE COURT: Ask him a contemporaneous question. What is his opinion about whether or not that would have been an useful scientific technique at that time on those samples, whether or not there are any advantages or disadvantages. That is the only relevance to that question.
MS. CLARK: I was just about to get to that.
MS. CLARK: In your opinion, sir, when you were asked at the preliminary hearing about the use of the mass spectrometer to test for oleandrin, would that have been an effective--more effective means of testing for the presence of that poison?
MR. BLASIER: Objection, irrelevant.
THE COURT: Overruled.
DR. RIEDERS: I don't recall that that issue was raised, but had it been raised I would have informed the Court of the fact that the--that I was unaware of any published method for determining oleandrin by gas chromatography, mass spectrometry; that probably a liquid chromatography mass spectrometry method might be more applicable. I am aware of that. I was unaware of any published method. And furthermore, I was unaware of anyone myself, certainly in the postmortem forensic toxicology community, who had such equipment at that time available. It was relatively rare.
MS. CLARK: And so, as a matter of fact, you did not believe that anyone had that equipment at that time?
DR. RIEDERS: No, no, I didn't say that, please. Don't put words in my mouth. I said that in the forensic postmortem toxicology communities, medical examiner's laboratories, Coroner's laboratories, I don't know about the FBI, but my colleagues weren't using LC/ms. The one case where LC/ms was used in a postmortem case, it was done by Hewlett Packard out here for somebody that I knew of, so it wasn't a tool that was generally lying around available to anyone at the time. And also, what I want to emphasize, is that I was unaware--
MS. CLARK: Your Honor, this is nonresponsive.
DR. RIEDERS: --of any published report of an analysis for oleandrin in tissues by either GC/ms or LC/ms.
THE COURT: Next question.
DR. RIEDERS: And so I couldn't say that it could be done.
THE COURT: Next question. Let's wind this up. Let's try the Simpson case sometime today.
MS. CLARK: Dr. Rieders, would you agree that someone who was familiar with the operation of that machine would know how to devise a test or perhaps would know how to devise a test that would be effective for the presence of oleandrin?
MR. BLASIER: Objection, calls for speculation.
THE COURT: Sustained.
MS. CLARK: What effort did you make, sir, after hearing the questioning at the preliminary hearing, or at any time before 1991, to determine whether the ms could be used for the testing of oleandrin?
MR. BLASIER: Objection, irrelevant.
THE COURT: Overruled.
DR. RIEDERS: I asked a couple of my colleagues whether they had anything available that could do the job. None of them did. And that is it.
MS. CLARK: I'm sorry, sir, what did you say?
DR. RIEDERS: I said I asked some of my colleagues whether they had any such method for oleandrin available at the time, LC/ms, and none of them did. That is as far as I went.
MS. CLARK: And what effort did you make to determine whether or not Dr. Henion's method was an effective one, after you learned of his negative result?
MR. BLASIER: Objection, irrelevant.
THE COURT: Sustained.
MS. CLARK: Did you make any effort, sir, to send your tissues, the autopsy from 1985 tissues, to Dr. Henion for testing on the LC/ms to confirm or refute the finding that you had?
DR. RIEDERS: That is what I proposed before the autopsy tissues were--before the exhumation was done. I proposed it first to Harvey Giss when he came up with Henion's name. I knew Henion and I knew of the--by that time I found out that he had methodology available and I offered some of the specimens that I had. I again suggested that I think to Dr.--to Brian Finkle and to Dr. Lovell and they turned that down. They said--I was told on the telephone--
THE COURT: All right, doctor.
DR. RIEDERS: --no.
THE COURT: The question was did you offer any of the tissues?
DR. RIEDERS: I sure did.
THE COURT: All right. Next question.
MS. CLARK: And you say you offered those tissues to the Defense, correct?
DR. RIEDERS: I didn't talk to the Defense. I showed them to the Defense. The Defense attorney, Diamond, came to see me, and I showed him. I had them wrapped tightly, sealed, signed and everything in the deep freeze, yes.
THE COURT: All right. That is--
MS. CLARK: And he rejected them?
THE COURT: Wait. This is the end of this inquiry. It is completely irrelevant at this point. Move on to something else.
MS. CLARK: Dr. Rieders, in this particular case you did not do any testing on any of the evidence; is that correct?
DR. RIEDERS: On what?
MS. CLARK: In this case, in the Simpson case?
DR. RIEDERS: No.
MS. CLARK: Did you do any testing on any of the evidence?
DR. RIEDERS: No, I didn't.
MS. CLARK: You just interpreted the tests that were done by Agent Martz, correct?
DR. RIEDERS: That's correct?
DR. RIEDERS: And those tests were performed on equipment that you have never operated, correct?
DR. RIEDERS: Yes.
MS. CLARK: Now, with respect to the finding on the gate, you indicated that you found the single parent and single daughter ion, correct?
MR. BLASIER: Objection, that misstates the testimony.
THE COURT: Overruled.
DR. RIEDERS: I would have to refresh--I have to see what he had--whether he ran a chromatogram where he ran--whether that is the one where he ran all three or whether it was on the sock and where in my opinion it showed the third daughter ion as well. I don't know whether it was this one or the other one.
MS. CLARK: All right. Let me just ask you this: With respect to the single parent and single daughter ion, would you agree, sir, that there may be other compounds that are not EDTA that may have that single parent and single daughter?
DR. RIEDERS: Possible. I don't know of any.
MS. CLARK: I'm sorry?
DR. RIEDERS: I said it is possible. I don't know of any. I didn't find any either.
MS. CLARK: And isn't that also what you said in the Sconce case?
DR. RIEDERS: Beg your pardon?
MS. CLARK: Isn't that also what you said in the Sconce case?
MR. BLASIER: Objection.
THE COURT: Overruled.
DR. RIEDERS: I don't know what you are talking about.
MS. CLARK: When you were asked whether it could have been another compound besides oleandrin, you said it could be but you don't know what that would be; isn't that right?
DR. RIEDERS: Probably, yeah, that's true.
MS. CLARK: I'm going to show you a copy of the report you prepared in this case. Do you have it with you, sir?
DR. RIEDERS: I don't know that I do. Wait a moment.
(Brief pause.)
DR. RIEDERS: No, I don't.
MS. CLARK: Perhaps Mr. Blasier has an extra copy.
(Brief pause.)
MS. CLARK: I'm going to mark this as People's 586.
THE COURT: 586. Don't we already have this report marked?
MR. BLASIER: I thought we did.
MS. CLARK: I don't think so.
THE COURT: All right. 586.
(Peo's 586 for id = Dr. Rieders' report)
MS. CLARK: Let me ask you a couple of questions about this report, sir. You recall that you wrote this report on July 17th, 1995, correct?
DR. RIEDERS: I don't recall the date. May I have a copy to refresh my memory?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Mrs. Robertson, would you make an extra copy, please.
(Brief pause.)
THE COURT: All right.
MS. CLARK: Let me show you the date on the--
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: All right. Do you see the date, sir, and the name "Mr. Blasier"?
DR. RIEDERS: Yes.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Brief pause.)
MS. CLARK: Let me ask you something, Dr. Rieders: You don't have a copy of your own report in this case?
DR. RIEDERS: Not any more. I thought you were going to examine me on the Sconce case today, so I brought the file with me.
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Here is another one. Why don't you look at this.
MS. CLARK: Does that appear to be your letterhead, sir?
DR. RIEDERS: Yes.
MS. CLARK: Does that appear to be the report that you wrote for your findings in this case?
DR. RIEDERS: Yes.
MS. CLARK: Is that dated July 17, 1995?
DR. RIEDERS: Yes.
MS. CLARK: Would that be the date that you wrote the report?
DR. RIEDERS: Yes.
MS. CLARK: Now, that report was an accurate summary of your findings; is that correct, sir?
DR. RIEDERS: Yes.
MS. CLARK: And you received the graphs of the tests done by Mr. Martz you indicated I think back in March of 1995?
DR. RIEDERS: Sounds about right.
MS. CLARK: How many hours did you spend reviewing all those charts, sir?
DR. RIEDERS: Endless hours.
MS. CLARK: Can you tell us how many?
DR. RIEDERS: Well over fifty, I know that.
MS. CLARK: You billed for your time, did you not, sir?
DR. RIEDERS: Some of it.
MS. CLARK: And how much time did you bill for?
DR. RIEDERS: I may have billed a total of fifteen or twenty hours.
MS. CLARK: Out of the more than fifty that you spent?
DR. RIEDERS: (No audible response.)
MS. CLARK: So you basically donated half your time in this case?
MR. BLASIER: Objection, argumentative.
THE COURT: Overruled.
DR. RIEDERS: No, I didn't donate my time. I used it effectively to learn something and so I didn't charge them for that. All right?
MS. CLARK: So how much did you bill for your work in this case, sir?
DR. RIEDERS: I think the total that we've billed so far may be around--gee, I don't really know. We billed $250.00 an hour for a chargeable forensically active work directed towards it. I think it is under $10,000.
MS. CLARK: You have billed under $10,000?
DR. RIEDERS: I believe so.
MS. CLARK: And how much do you bill for each day you spend in court?
DR. RIEDERS: $2500.
MS. CLARK: And so this is your second day in court, correct?
DR. RIEDERS: In court? Actually I don't know whether it is the second or third day. I haven't billed any of this yet.
MS. CLARK: Do you intend to?
DR. RIEDERS: Of course.
MS. CLARK: So when all is said and done, your billing will have been about, conservatively speaking, 15,000?
DR. RIEDERS: I'm sure it will be more than that.
MS. CLARK: You think it will be around 20?
DR. RIEDERS: I don't know. I don't know. I will bill it by time and my record. That is all I can tell you.
MS. CLARK: All right. So you spent over fifty hours reviewing Agent Martz' chart?
DR. RIEDERS: Yeah.
MS. CLARK: And then you wrote this report on July 17th?
DR. RIEDERS: Yes.
MS. CLARK: Which accurately summarizes the findings--the results of your examinations of those charts and graphs, correct?
DR. RIEDERS: It is my opinion and not findings. He made the findings.
MS. CLARK: Fine--
DR. RIEDERS: He put them in his chart. I reviewed them and came to a conclusion based on those findings, yes.
MS. CLARK: All right. And the report summarizes your opinion of his test results, correct?
DR. RIEDERS: Evaluation and opinion, yes; that's correct.
MS. CLARK: All right. Let's look at what your report says, sir. I'm going to direct your attention, this is the first page of your report, to your opinion of the test results on the back gate stain. Specifically, sir, to roman numeral iii. Your opinion in that paragraph is that you found one daughter ion, correct, and one parent ion and that is in paragraph 2?
DR. RIEDERS: That sounds like--
MS. CLARK: Is that right?
DR. RIEDERS: No. That is not what I found. I described the one daughter ion in paragraph 3 that it corresponds to the daughter ion of the EDTA standard.
MS. CLARK: Right. And then in paragraph 2, just above it?
DR. RIEDERS: Yes.
MS. CLARK: You said you found the one parent ion that corresponds to the EDTA standard, correct?
DR. RIEDERS: No, I didn't say I found anything. I said a mass spectral ion corresponding to the parent ion of the EDTA standard was present in the packet.
MS. CLARK: And that was your opinion concerning the gate stain, correct?
DR. RIEDERS: No. This is a description of facts that were in the packet that I got. This is not--this is not opinion. That is just a description.
MS. CLARK: Is that your opinion, sir?
DR. RIEDERS: It is--
MS. CLARK: Look at the graphs. And this is how you interpreted them, correct?
DR. RIEDERS: It is not only how I interpreted them, but that is also what Roger Martz agreed to, that--with me, that retention time corresponded to the EDTA standard, that the mass spectral parent ion corresponded to the parent ion, n plus one of the standard, and that the one ms/ms ion that he monitored individually, the 160, also corresponded to that of the EDTA standard. These are things that he states in his--in his chromatography and his report.
MS. CLARK: All right. And so this--as to this stain, we have one parent and one daughter, but not the full daughter spectrum, correct?
DR. RIEDERS: It says what it says. They have it in their full daughter spectrum. This doesn't refer to it.
MS. CLARK: Dr. Rieders, this report, paragraphs 2 and 3--
DR. RIEDERS: Right.
MS. CLARK: --does this show one daughter and one parent but not the full daughter spectrum was revealed by the graphs?
DR. RIEDERS: I'm sorry, that is not correct. It is not in the report. I didn't refer to the full daughter spectrum because it was such a mess, but it was still there. I had seen it.
MS. CLARK: Sir, have you reviewed the testimony you gave on direct when you were last in this courtroom?
DR. RIEDERS: Well, I went through the tape, yes.
MS. CLARK: Do you recall testifying that you found the full daughter spectrum on the gate stain?
DR. RIEDERS: I think I testified that in looking at the full daughter spectrum that I recognized all three ions as showing on it visibly.
MS. CLARK: Are you sure of that, sir?
DR. RIEDERS: I thought that is what I did. I don't know whether it was the gate or the sock, remember, I told you that, so I don't know which one it was, but on one of them I said that.
MS. CLARK: On one of them you recall saying that, correct?
DR. RIEDERS: Yeah.
MS. CLARK: Then let's assume for a moment, sir, it was the sock. Okay?
DR. RIEDERS: Okay. So that is the--so that would be no. 2, right.
MS. CLARK: All right. Then no. 2, let's go to page 2, sir, because if according to your testimony you found a full daughter ion--the full daughter spectrum for the sock stain, it should be revealed in your report, correct.
MR. BLASIER: Objection, argumentative?
DR. RIEDERS: No.
THE COURT: Sustained. The answer will stand, though.
MS. CLARK: If your finding--if your opinion of the result on the graphs generated by Agent Martz' testing was that the full daughter spectrum was revealed in the sock taken, would you not include that in your report?
DR. RIEDERS: Not necessarily.
MS. CLARK: Don't you think that is an important finding, Dr. Rieders?
DR. RIEDERS: The fact that I interpreted that as actually showing all three ions, I don't know whether it is important. I don't take myself that importantly. But it is a corroborative finding, yes.
MS. CLARK: Sir, with respect to the determination as to whether or not a compound is indeed one that you've identified to the exclusion of all others--
DR. RIEDERS: Oh.
MS. CLARK: --is it not important--is it not important, sir, to find as many identifying characteristics and review them as you can to substantiate your finding?
DR. RIEDERS: Did you say to the exclusion of all others? I never said that, did I?
MS. CLARK: Did you?
DR. RIEDERS: I certainly did not. It is not--nothing is to the exclusion of all others. That is nonsense. You don't know all others, all the billions of compounds.
MS. CLARK: So you cannot say then that the substance found in the rear gate and the sock is EDTA from a preserved tube to the exclusion of all other compounds?
DR. RIEDERS: To the exclusion of all others? I can say it, but I would be lying.
MS. CLARK: Then you will not say it, will you, sir?
DR. RIEDERS: I'm not going to say that, no, of course not.
MS. CLARK: And looking at your report, sir, if you will, concerning the graphs generated for the analysis of the sock stain--
DR. RIEDERS: Yeah, yeah. What about them?
MS. CLARK: That is paragraph 2, correct?
DR. RIEDERS: What the--
MS. CLARK: Paragraph 2 of your report?
DR. RIEDERS: Yes.
MS. CLARK: In that paragraph you describe seeing one parent and one daughter ion, correct?
DR. RIEDERS: I didn't describe seeing. I described the presence or I state the presence of a retention time, a parent ion and a daughter ion.
MS. CLARK: Okay. Did you not put anywhere in this report that you saw the full daughter spectrum, as you testified on July 24th?
DR. RIEDERS: I have not said anything like that in this report, that's correct.
MS. CLARK: And you filed no addendum to this report to indicate that in fact you had found the full daughter spectrum, not just one daughter ion, correct?
MR. BLASIER: Objection, irrelevant.
THE COURT: Overruled.
DR. RIEDERS: Would you repeat that, please.
MS. CLARK: You filed no correction or addendum to your report to reflect the fact that actually you had found the full daughter spectrum and not just one daughter ion, correct?
DR. RIEDERS: Correct.
MS. CLARK: And you would agree, would you not, sir, that the more characteristics you can find that line up with a certain compounds to identify it, the better it is in terms of confirming your findings? Wouldn't you agree?
DR. RIEDERS: Absolutely.
MS. CLARK: And so the finding of the full daughter spectrum was an important interpretation of the graphs, was it not?
MR. BLASIER: Objection, argumentative.
THE COURT: Overruled.
DR. RIEDERS: It became an important issue, yes.
MS. CLARK: But it was not one that you included in your July 17th report?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: Correct.
MS. CLARK: Now, after you wrote your July 17th report, sir, you were informed that Agent Martz tested his own unpreserved blood and got the same single parent and single daughter ion result that he found in the gate and the sock stain, correct?
DR. RIEDERS: Similar, yes.
MS. CLARK: Not the full daughter spectrum, but the single parent and single daughter; isn't that correct?
DR. RIEDERS: Yeah. He never checked the second daughter.
MS. CLARK: Sir, did you observe his testimony?
DR. RIEDERS: Yes.
MS. CLARK: It was his testimony that he did not find the second daughter in his own unpreserved blood; isn't that correct?
DR. RIEDERS: He never looked for it.
MS. CLARK: Sir, did you--
DR. RIEDERS: He said very clearly he didn't run the 132 because he didn't think it was necessary. That is the third daughter ion. So he never looked for it.
MS. CLARK: Sir, isn't it true that he testified not just that he didn't--isn't it true that he testified that his blood, unpreserved blood, gave the same parent and single daughter ion results that were found on the gate and the sock? Wasn't that his testimony, sir?
DR. RIEDERS: I think he said similar, yes.
MS. CLARK: And didn't you agree, when I cross-examined you last you were here in July on this, that the results on Agent Martz' unpreserved blood were very similar to that of the gate and the sock?
DR. RIEDERS: I think I said the results that he obtained and from the unpreserved blood. Whether it was in fact unpreserved blood, I have no way of knowing.
MS. CLARK: When I asked you, sir, whether or not you thought he was lying about that, you said no, you had no reason to doubt that he was being honest in testing his own unpreserved blood. Do you recall that?
DR. RIEDERS: I don't recall it, but I would agree with it. I don't think he is lying. I think he is mistaken in one way or another.
MS. CLARK: Well, sir, so after you wrote your July 17th report, which you agree shows the single parent and single daughter ion for both the gate and the sock stain, you learned of the result of Agent Martz' own unpreserved blood test, and after that you came in to testify on July 24th, correct?
DR. RIEDERS: Yeah.
MS. CLARK: And then when you took the witness stand on July 24th you had filed no addendum changing your findings that were indicated in the report, correct?
MR. BLASIER: Objection, asked and answered.
THE COURT: Sustained.
MS. CLARK: And when you testified at that point only you told this jury that you found the full daughter spectrum on the sock taken; isn't that correct?
DR. RIEDERS: I didn't find it. I saw it, the full daughter spectrum, yes.
MS. CLARK: You testified to your opinion that you saw the full daughter spectrum on those graphs on July 24th, correct?
DR. RIEDERS: No, no. Wait. I saw the full daughter spectrum. It was presented to me. On it I pointed out that you could really see all three, even though poorly, but you could see it.
MS. CLARK: That is your opinion, correct, Dr. Rieders?
DR. RIEDERS: I pointed it out. Obviously it is my opinion. But I also left it for anyone else to form their opinion.
MS. CLARK: And Dr. Rieders, between the time that you--you testified that you found--you testified that in your interpretation and your opinion the full daughter spectrum was found on the sock on July 24th, correct?
DR. RIEDERS: I think--was it the sock?
MS. CLARK: Yes.
DR. RIEDERS: It was one of them. That is all I know, yeah.
MS. CLARK: But your report does not reveal that you found the full daughter spectrum on the sock which was written on July 17th, correct?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: No, I did not.
MS. CLARK: What testing, if any, did you conduct between July 17th and your testimony on July 24th?
DR. RIEDERS: I didn't conduct any testing at any time, as I have repeatedly told you.
MS. CLARK: And other than--did you review the graphs again between July 17th and July 24th?
DR. RIEDERS: Not as much in detail as I had before. I was asked things about some of them. I reviewed that. That is it.
MS. CLARK: Isn't it true, sir, that in order to overcome the very similar findings in Agent Martz' unpreserved blood to that of the gate and the sock stain, you decided to change your opinion concerning your interpretation of the graphs on the sock stain so that you could say that it was from preserved blood; isn't that correct?
DR. RIEDERS: No, that is absolutely misleading and incorrect.
MS. CLARK: Well, sir, let me ask you this: Is there a difference in science between the term "Detected" and "Identified"?
DR. RIEDERS: Sure there is.
MS. CLARK: When you detect something, that means that it may be consistent with a compound, but isn't necessarily that particular compound that you are trying to--you are trying to look for?
DR. RIEDERS: Not necessarily. Detection can be so strong that it is at the same time a positive identification. Ordinarily in the forensic toxicologic sequence of analysis where the--what we call in forensic toxicology an acceptable--forensically acceptable quantum of proof, you do two physical chemically independent tests. The first one preferably is one that is particularly sensitive, even at the sacrifice of specificity, and you call that a detection test, and then do you a second independent one which is a corroboration or negation test, and so between the two, you have an identification as a basic requirement.
MS. CLARK: Then to boil it down, sir, if you have detection, you may or may not have the compound. If you have identification, you in fact have the compound?
DR. RIEDERS: You may or may not. You can't ever be sure. You go to the point of reasonable scientific certainty with the tools that you have and what you have available.
MS. CLARK: And would you agree that there is a distinction, sir, between something that is presumptive for a certain compounds and something that is identified as a certain compound? Is there a higher degree of certainty with respect to a compound that is identified than a compound that is determined to be presumptive for?
MR. BLASIER: Objection to the use of the term "Presumptive." It is a legal term.
THE COURT: Overruled.
DR. RIEDERS: Presumptive can be as strong as identified. Any analysis that you do for a compound, if you get a result that fails to disprove its presence, is presumptively positive. If you have several different types of tests, all of them fail to rule it out by showing it could be there, then together between them we call this reasonable certainty of identification. That is how we work that. That is the mental algorithm that is standard in this community. That means you don't prove anything. You fail to disprove; that is what you do.
MS. CLARK: Then do you not agree that there is a distinction between the terms "Detected" and "Identified"? Is that your testimony?
MR. BLASIER: Objection, misstates his testimony.
THE COURT: Overruled.
DR. RIEDERS: There is an obvious difference. They are two different words and they require, in any particular case, definition.
MS. CLARK: Then Dr. Rieders, would you agree that "Identify" implies a higher degree of scientific certainty than "Detected"?
DR. RIEDERS: A higher degree of scientific certainty for identification, yes, but not for presence or absence.
MS. CLARK: Yes, doctor, and presence or absence means it may or may not be there, correct?
DR. RIEDERS: Well, that--
MS. CLARK: It may be there, but it may not, and when you said "Identified," it is a higher degree of scientific certainty; isn't that true?
DR. RIEDERS: It still may be the compound or it may be something else. It can always be different. You have failed to disprove its presence. Every time you fail to disprove, you add another quantum to having identified it. You fail to disprove. You run a series of tests. If these tests are all positive, you have failed to rule out that compound. At one point or another you say I have done enough tests. I'm reasonably sure that is what it is, taking everything else into consideration.
MS. CLARK: All right. Doctor, would you say--let me ask you a different question. There are such things as presumptive tests, correct?
DR. RIEDERS: Any single test is no more than a presumptive test.
MS. CLARK: Well, then do you see any distinction between a test that is a presumptive test and a test that is confirmatory test?
DR. RIEDERS: Yeah. Confirmatory is done after the presumptive.
MS. CLARK: All right. So when something is done on a presumptive test and comes up positive, you say you have a result that is presumptive for "X," whatever you are looking for, correct?
DR. RIEDERS: Right.
MS. CLARK: Then when you go on and do further testing, you will confirm the presence or rule it out, correct?
DR. RIEDERS: Confirm it or negate it with the next test. If do you a third test, do you again the same process. It confirms the previous one or it negates the previous results.
MS. CLARK: And wouldn't you agree, doctor, that in mass spectrometry you can only confirm a compound if you have the full daughter spectrum?
DR. RIEDERS: Absolutely not. That is nonsense. Whoever gave that you idea?
MS. CLARK: If people who were expert in the use of the tamdem mass spectrometer said that that is what you had to do, would you disagree with them?
DR. RIEDERS: No, that is what they have to do. That is their opinion, but it isn't--as I said before, it is not etched in concrete. It is not from Olympus.
MS. CLARK: All right. So it is your--
DR. RIEDERS: A lot of identifications in forensic science in ms/ms are done on the basis of the parent ion and the single daughter ion. It is done everyday with people who that have instrumentation.
MS. CLARK: Then your opinion, Dr. Rieders, is that you are entitled to create your own standard for when something should be identified or not? Is that your testimony?
DR. RIEDERS: No.
MR. BLASIER: Objection.
THE COURT: Sustained.
MS. CLARK: Is it your testimony, sir, that you feel that you can make an identification based on your own criteria?
DR. RIEDERS: If they are only my own criteria, then they are junk science. If they are criteria which are shared by my colleagues, then I can say yes. You know, if they have stood the test of time and of cases.
MS. CLARK: But then it is your opinion, doctor, that you set your own standard and you determine whether or not a certain standard is correct or not?
DR. RIEDERS: No, I don't set the standard.
MS. CLARK: If others disagree with the standards you have set, do you change your opinion?
DR. RIEDERS: Just because they have a different opinion? No. One debates it and when comes a point where there is proof that one is right, the other is wrong, then you change your mind.
MS. CLARK: But you decide when that happens; isn't that correct?
MR. BLASIER: Objection, argumentative.
THE COURT: Overruled.
DR. RIEDERS: Either I or the scientific community decides. Up until the point that there is a consensus, if people have my opinion, share my opinion, then we are a group that have one opinion; somebody else has another opinion. Doesn't mean that either one is right. Eventually is turns out that one or another one is right or perhaps both are.
MS. CLARK: With whom did you consult to determine that your standard of a single parent and single daughter ion is sufficient to say that you have identified the presence of a certain compound in a mass spectrometer?
DR. RIEDERS: I looked in the literature, no. 1, on ms/ms work. I have over the years many times, because we have been considering getting into it.
MS. CLARK: What literature is that, doctor?
DR. RIEDERS: Hum?
MS. CLARK: What literature?
DR. RIEDERS: Scientific literature, technical literature from the ones that I looked at from Finnegan who makes the TSQ instrument that I think Dr. Martz used, then Hewlett Packard who has put out that kind of an instrument, ms/ms instrument.
MS. CLARK: And do those articles indicate that it is appropriate to identify the presence of a compound as opposed to just detect it on the presence of a single parent and single daughter ion? Is that what they say?
DR. RIEDERS: In some cases, yes, it is.
MS. CLARK: Could you produce those articles for us, sir?
DR. RIEDERS: Oh, I suppose I could if I went back and called them up to send me copies of them.
MS. CLARK: Could you please use the microphone, Dr. Rieders. The court reporter is having a hard time.
DR. RIEDERS: I'm sorry.
MS. CLARK: If somebody in the scientific community disagreed and felt that your--that the standard you've enunciated for us of a single parent and single daughter ion for the purpose of identifying a compound was inappropriate and too lax, you would simply disagree with them. Is that your testimony?
DR. RIEDERS: Yes, I would. I mean, they are entitled to their opinion, but it is not mine. We have no proof of that.
MS. CLARK: All right. Now, you indicated that there is a difference between presumptive and confirmed, correct?
DR. RIEDERS: It is a semantic difference, yes, but it is an important difference, but it is semantic. It refers to the first test which no matter what it is, it is the first test. The second physical chemically independent test then corroborates or negates, so it becomes the confirming or negating test.
MS. CLARK: Let me show you the last page of your report. Now, directing your attention, sir, to the last paragraph which is labeled B, where you indicate: "Thus the finding of EDTA in a micro blood specimen, such as in the present ones, is consistent with, indicative of and presumptive for the blood having originated from a specimen which has been placed into a usually lavender top blood collection tube such as is commonly used to draw blood from a living person and keep it from coagulating." And the terminology you use in that paragraph, sir, is "Consistent with, indicative of and presumptive for"; isn't that correct?
DR. RIEDERS: That's correct.
MS. CLARK: And in none of those words do you indicate the final or confirmatory language such as "Identify"; isn't that right?
DR. RIEDERS: Well, in this case it is not a question of identified. When you talk about--well, yeah, I guess so. It doesn't say identify that that was it, that it was EDTA blood from the tube, because you can't say that. You can only say this is EDTA blood. Presumably because the most common source for it is a lavender-topped tube. It came from a lavender topped tube, but it doesn't mean it did in fact come in that; it could come from other sources. I don't know where it came from, in short.
MS. CLARK: And the other sources it may come from, sir--well, let me ask you this: Are you aware that there are four different types of EDTA?
DR. RIEDERS: There are many more than four.
MS. CLARK: But at least four?
DR. RIEDERS: There are more than four, so there are four, but there are also much more than four.
MS. CLARK: This one is calcium disodium; isn't that right?
DR. RIEDERS: That is one of them.
MS. CLARK: And that is used for a food preservative?
DR. RIEDERS: Calcium disodium EDTA is used for a lot of things, included treating lead poisons.
MS. CLARK: As well as a food preservative?
DR. RIEDERS: It is not a preservative in that it ties up metal and keeps the color of food. In fact, it doesn't keep it from rotting.
MS. CLARK: Are you aware that it is also used as a food preservative? Did you know that?
DR. RIEDERS: It doesn't work as a preservative. Preservative means prevents bacterial degeneration. It doesn't do that the. It is not an anti-bacterial compound.
MS. CLARK: If I were to show you, sir, an article--excuse me. A page out of the Merck index indicating that calcium disodium was in fact used as a food preservative along with the purpose of treating lead poisoning, would you change your opinion, sir?
DR. RIEDERS: Of course not. It is a preservative of color and flavor, but not of food as edible food. The food preservative is something which keeps food edible and this won't do it. It will be bacterially degraded just as if you didn't have it in there.
MS. CLARK: All right. Then it is your testimony that although it may not preserve food, it is a color retentive product?
DR. RIEDERS: In some cases.
MS. CLARK: For food?
DR. RIEDERS: Look, what it does is it ties up the metals that oxidize color and flavor. It inactivates them. That is its purpose in food.
MS. CLARK: All right. Then it is used in food, though, is it not?
DR. RIEDERS: Yes, it is. Sure.
MS. CLARK: All right. Then there is disodium only, correct?
DR. RIEDERS: Hum?
MS. CLARK: I'm talking about the types of EDTA. There is also disodium, straight disodium?
DR. RIEDERS: Disodium EDTA is another one that is disodium dihydrogen EDTA which when you put it into food it usually very quickly goes to calcium or depending on what--mostly calcium.
MS. CLARK: All right. And then there is sodium EDTA, correct?
DR. RIEDERS: Yeah.
MS. CLARK: And there is trisodium EDTA?
DR. RIEDERS: Yup. There are many others, as I said.
MS. CLARK: Now, the way the anticoagulant works is that it binds up the calcium in your blood which is the clotting agent; is that right?
DR. RIEDERS: That is the anticoagulant effect, yes.
MS. CLARK: We have just gone through four of the forms of EDTA. Do you know which of those can be used as a food preservative, sir?
DR. RIEDERS: You could use any one of them because the purpose of it is to tie up iron, copper and a few other heavy metals which cause changes in color and changes in flavor, so you can use any one of them, from a technical point of view, provided the acidity or basidity of the food is properly adjusted. The trouble is that the free EDTA isn't water soluble; the sodium EDTA is.
MS. CLARK: Now, do you know whether these forms of EDTA were ever tested for the purpose of determining what the maximum tolerance would be in a normal healthy person?
DR. RIEDERS: You mean in food? Is that it? When you say maximum tolerance, how? Intravenous or in food or what? Vast difference.
MS. CLARK: No, sir. I asked you whether there was any testing that you know of that determined whether any of the forms of EDTA that we have just talked about, those four--
DR. RIEDERS: Right.
MS. CLARK: --was ever done to see what the normal level would be in an average healthy person?
DR. RIEDERS: Yes. The study of Foreman and Trujillo dealt with normal healthy persons.
MS. CLARK: Objection, nonresponsive.
THE COURT: Overruled, overruled.
DR. RIEDERS: And in this they determined what the level in their blood was, which was in the low parts per billion below their detection levels.
THE COURT: Ladies and gentlemen, we need to take a comfort break for the jurors. We will take ten minutes.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Let's have the jury, please.
MS. CLARK: Your Honor, may we approach?
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Miss Clark.
MS. CLARK: Yes, your Honor. I regrettably have asked to approach because I feel that the People's right to a fair trial is being abrogated by the Court's clear bias in the manner in which it has handled the cross-examination of Dr. Rieders. I have attempted to confine my questioning to the relevant portions upon which the Court has ruled there has been relevance concerning the Sconce case. The Court has indicated by its tone and its demeanor and its ruling its disapproval of my every question, practically, in the area, and has told the jury, in direct contravention to its own finding, that the Sconce matter is relevant, "Let's get back to this case," and has basically signaled to the jury, if not with tone and with action and with rulings, its disapproval of my behavior. I do not see what I have done that has been inappropriate. I have attempted to abide by all of the Court's rulings.
I asked to approach when I wanted to elicit something that has been previously ruled on. And the jury can only think that the Court has signaled its position on the presence of EDTA on the blood on the sock and the gate and the Court has based its determination--has made a determination that it was indeed present and that my questioning is inappropriate and ineffective. And on behalf of the People I would ask that the Court make some indication to the jury that it is not intending to signal any position on the issue, because at this point I think the signals have been very clear and very loud and I think that the People's right to a fair trial has been damaged.
MR. COCHRAN: May I respond just briefly?
THE COURT: No. Mr. Blasier is handling this.
MR. COCHRAN: I'm sorry.
MR. BLASIER: The Court gave Miss Clark many, many signals. We spent most of the cross on this, the Sconce case. It wasn't like she wasn't allowed to go into it. She has been going into matters that are far collateral to this case and the Court sustained many objections. And I don't think the Court's comment was inappropriate at all and I think it would be complete inappropriate to go back and say I didn't mean what I said. So I would object to any such correcting instruction or statement by the Court.
MS. CLARK: Let me just indicate--
THE COURT: The issue as to the Sconce case was that Dr. Rieders did testing that somebody else disagreed with. It goes to his competence. That has been established and that was established ad infinitum ad nauseam to a degree that was unwarranted and there were attempts to bring in hearsay documents that clearly there was no foundation for and to bring in opinions of other people regarding Dr. Rieders' performance on the Sconce case. I allowed you to establish the foundation that somebody else disagrees with Dr. Rieders' finding in the Sconce case. That is all that is relevant here.
MS. CLARK: Well, okay. It is my position that there were other issues regarding the witness' credibility that were highly germane. The Court disagreed, I understand, but I have never seen a lawyer for the Defense treated in the manner in which this Court has treated me throughout this cross-examination.
THE COURT: Well, look at Mr. Neufeld some time when I get impatient with him for the same reason, that the cross-examination is ridiculously long. I will note your objection, but I think it is not well taken.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Proceed.
MS. CLARK: All right. Dr. Rieders, when I questioned you when you were last here on July 24th, I asked you whether testing had been done to determine whether--what the level--average level of EDTA might be in the average healthy person and you agreed there had not been such a test. Do you recall that testimony, sir?
DR. RIEDERS: I recall the testimony that there had not been a population study as one generally is, ATSDR and other agencies do, that I know of.
MS. CLARK: That would determine what the average level, if there is one, of EDTA in the average healthy person, correct?
DR. RIEDERS: Except for the small Foreman and Trujillo sample.
MS. CLARK: Sir--
DR. RIEDERS: That is a sample--
MS. CLARK: --I had asked you was that test was not conducted to determine what the average level might be in a healthy person of EDTA; isn't that correct, sir?
DR. RIEDERS: I don't know what it was conducted to do, but it gave you that information and the small number of people.
MS. CLARK: Sir, do you recall testifying on cross-examination back on July 24th that that was not the purpose of that testing back in the 1950's?
DR. RIEDERS: I'm sure that wasn't the purpose of the testing to determine the world population, but it was to measure the normal in those people, among other things.
MS. CLARK: Sir, do you recall testifying that with respect to that paper they were attempting to inject EDTA for the purpose of going into studies about how it would chelate with lead poisoning and tracing it through the body? Isn't that correct?
DR. RIEDERS: No, that--that paper--that particular paper is to study the pharmacokinetics of what the body does to EDTA. That is what the purpose of that paper was. And that includes determining that it is not detectable when you don't give it or that after you give it, after a period of time it disappears, it doesn't stay in the body. That is what the Foreman and Trujillo paper was and they repeated that in some additions in a book that came out a couple of years later from a symposium.
MS. CLARK: As a matter of fact, sir, isn't it true actually that that study found that it would pass through the body with the exception of about five percent, correct?
DR. RIEDERS: No. Oh, no, no. No, no. Either you don't understand it or you are saying the wrong thing.
MS. CLARK: Objection, your Honor. After "No" it is nonresponsive.
THE COURT: Yes. Next question.
DR. RIEDERS: It shows--
MS. CLARK: Dr. Rieders, isn't it true that that study made no effort to determine whether average healthy people had a certain trace amount of EDTA in their blood at any given time? Isn't that true, sir?
DR. RIEDERS: No, I don't think so.
MS. CLARK: You think that that was the purpose of their study? Is that your testimony?
DR. RIEDERS: One of the purposes, that the baseline was something or zero. That is what the--part of it, yes, in those people.
MS. CLARK: They took a few people and they injected them with EDTA; isn't that correct?
DR. RIEDERS: Among other things that is what they did.
MS. CLARK: What tests do you know of, sir, that took average people who had not been injected with anything to determine whether some form of EDTA was present in their blood? What tests can you tell us about?
DR. RIEDERS: That particular one, because it took zero time. That is when they hadn't been injected.
MS. CLARK: Objection, your Honor, nonresponsive.
THE COURT: Overruled.
MS. CLARK: What test do you know of, sir, that went out, took people off the street and took people and took their blood to see if there was EDTA in it?
DR. RIEDERS: I told you before I don't know of any.
MR. BLASIER: I object to the comments of counsel.
THE COURT: Overruled.
MS. CLARK: If a scientist is trying to prove that a substance is a particular compound, it is incumbent upon that scientist to do any test available to establish that, correct?
DR. RIEDERS: Would you repeat that, question, please.
MS. CLARK: If as a scientist you are trying to prove the presence of a particular compound, wouldn't you agree, sir, that it could be incumbent on you to do whatever tests are available and appropriate to do that?
DR. RIEDERS: Or else take someone else's data and review them.
MS. CLARK: All right. But then in that case that person would have done the testing, correct?
DR. RIEDERS: Beg pardon?
MS. CLARK: In that case someone else would have done the testing, correct?
DR. RIEDERS: Yes.
MS. CLARK: But the testing would have been done, do you agree?
DR. RIEDERS: If it is available, yes. I review the testing method and the result.
MS. CLARK: And testing is the cornerstone of science, isn't it, sir?
DR. RIEDERS: No. The cornerstone of science is the application of the scientific method to the investigation of phenomena.
MS. CLARK: And the application of the scientific method, sir, requires that testing be done to test hypothesis and determine whether you can determine if a theory is correct or incorrect; isn't that true?
DR. RIEDERS: That is one of the cornerstones. The other cornerstone is to formulate hypotheses.
MS. CLARK: Okay. Once you formulate the hypotheses you have to determine, through testing, where the hypotheses is, correct or incorrect?
DR. RIEDERS: Or you let somebody else do that.
MS. CLARK: One way or another the hypotheses is tested, agreed?
DR. RIEDERS: Again and again, yes. That is what research means.
MS. CLARK: And hypotheses may prove to be correct and they may prove to be incorrect, wouldn't you agree, doctor?
DR. RIEDERS: Well, in--I mean, in a genuine scientific approach you never say that a hypotheses is correct, but I say that all tests do not--have failed, so it still stands until the next person comes along with a better test and perhaps knocks it over. That is why it is a hypotheses. But for the present it has been--everybody has failed to disprove it, let's put it that way.
MS. CLARK: And theories are disproven, though, are they not?
DR. RIEDERS: What is?
MS. CLARK: It does occur that hypotheses are disproven by testing; isn't that correct?
DR. RIEDERS: This happens all the time.
MS. CLARK: All the time. I'm sorry. Is that what you said?
DR. RIEDERS: That is the purpose of science is to set up hypothesis and then make tests to knock them down and more commonly that is successful rather than the failure to knock it down.
MS. CLARK: You have been working on this case for the Defense since September or October of 1994?
DR. RIEDERS: I have upon working on these cases. I have answered, various questions, and then I started working on these--on these papers after I got them, sure.
MS. CLARK: You--
DR. RIEDERS: I think September--I think September is when they first asked me some questions and asked me to look at something.
MS. CLARK: So were you retained by the Defense in September of 1994?
DR. RIEDERS: September or October, I think.
MS. CLARK: And since that time how many hours have you spent on the case total?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: I have no idea. I only write it down and send it in and then that gets billed, but I don't personally keep count of it. A lot of time, I can tell you that.
MS. CLARK: You don't personally keep count of your hours?
DR. RIEDERS: I don't keep them with me.
MR. BLASIER: Objection. That misstates what he said.
THE COURT: Overruled.
MS. CLARK: You don't keep--
DR. RIEDERS: I told you I send in the sheet with hours and that is it. I don't keep adding up how many I worked, no.
MS. CLARK: You send the sheet to the Defense for billing?
DR. RIEDERS: I send the sheet to our billing department. They take care of those things.
MS. CLARK: And if could you, over the lunch hour, sir, I would ask, could you have your lab fax you the billing sheet that you have submitted in this case? Could you do that, sir?
DR. RIEDERS: I can call up and ask them to send you a copy of the billing, yes, although I think probably they have it right here.
MS. CLARK: Okay. We will determine that, sir. Could you also?
DR. RIEDERS: I beg your pardon?
MS. CLARK: We will determine that. I will speak with the Defense.
DR. RIEDERS: All right. Sure.
MS. CLARK: Could you also, sir, request that your lab fax you those articles--excuse me, the manufacturers--the manufacturers articles that you referred to, Hewlett Packard and Finnegan, in which you state that they say it is appropriate to identify a compound based on the detection of a single parent and single daughter ion?
MR. BLASIER: Objection. That misstates his testimony.
THE COURT: Overruled.
DR. RIEDERS: I don't know what to ask them. I would have to look and ask Hewlett Packard whether they have a copy of such an article or whether I have it in my file. We would have to search for it. I can't ask them to send it. I would have to look for it.
MS. CLARK: You couldn't ask someone in your lab to look for it for you?
DR. RIEDERS: No, I don't think so. I don't think that they would have much luck looking through my file.
MS. CLARK: Could you make an effort in that regard, sir, over the lunch hour, to have someone at your lab look through your file for such an article?
DR. RIEDERS: I don't know who to ask honestly because my secretary won't be able to do that, and to ask a colleague I think is pretty onerous pulling him away from work he is doing. It is my job to do that. When I get back, I will be glad to look.
MS. CLARK: Would you also tell us, sir, whether you know of any article published by any scientists that would agree and state that the appropriate standard for the identification of a compound is the observation or detection of a single parent and single daughter ion? Are there such articles, sir?
DR. RIEDERS: I believe, yes, I think there are, and I think I could locate them.
MS. CLARK: And if you would, please, try to locate them over the lunch hour?
DR. RIEDERS: No, I can't do it over the lunch hour because I would have to go back and do a literature search.
MS. CLARK: Then you will forward it to us when you get back to your lab?
DR. RIEDERS: If I find it, I will. If not, I will send you a note that I haven't found it. Is that satisfactory?
MS. CLARK: That's fine. Thank you, sir. Now, would you say that the number of hours total that you spent on this case was over a hundred?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: Including the time I have spent here? I would say probably.
MS. CLARK: What experiments have you conducted since September or October when you were retained in this case in 1994, to prove that EDTA will degrade in sunlight?
MR. BLASIER: Objection, asked and answered.
THE COURT: We asked that question on the 24th.
MS. CLARK: What experiments have you conducted since September of 1994 to prove that EDTA will degrade if it is left on metal?
MR. BLASIER: Objection, asked and answered.
THE COURT: Sustained.
MS. CLARK: What experiments have you conducted to determine whether EDTA will degrade when it is on paint?
MR. BLASIER: Your Honor, objection, asked and answered and counsel is arguing now.
THE COURT: Sustained. Why don't you just ask him the omnibus question, did you conduct any experiments regarding degradation?
MS. CLARK: All right. Did you conduct any experiments, sir, with respect to the degradation of EDTA when exposed to any kind of compound or element?
DR. RIEDERS: No. I looked at the literature, but I haven't done any experiments myself.
MS. CLARK: And is there any literature that you are aware of that determines that--that is based on experiments to show that EDTA will degrade in the presence of paint, or metal or fertilizer or rust?
DR. RIEDERS: There is lots in the literature about the breakdown of EDTA--
MS. CLARK: Objection, nonresponsive.
DR. RIEDERS: And as far as--
THE COURT: Overruled.
DR. RIEDERS: In sludge which contains all those things, yes.
MS. CLARK: Dr. Rieders, is it your testimony that there are articles, based on experiments, that show that EDTA degrades when exposed to paint, or metal or fertilizer or rust?
DR. RIEDERS: Specifically to those substances only I am not aware of any.
THE COURT: Would this be a good spot?
MS. CLARK: Yes, that's fine.
DR. RIEDERS: Excuse me. Except for Dr. Martz' experiment.
THE COURT: All right. Ladies and gentlemen, I'm going to take our recess for the noon hour. Dr. Rieders, you can step down.
DR. RIEDERS: Thank you.
THE COURT: Please remember all of my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess until 1:30. All right.
(At 12:00 P.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; MONDAY, AUGUST 14, 1995 1:35 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also present, Laurie J. Butler and Richard P. Towne, Esquires, for Detective Fuhrman; Kelli Sager, Esquire, for Tracie Savage.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. We have a few evidentiary matters to take up before we invite the jurors to rejoin us, before we conclude with Dr. Rieders. All right. Mr. Uelmen, you want to be heard on behalf of the proponents?
MR. UELMEN: Yes, your Honor.
THE COURT: Good afternoon, sir.
MR. UELMEN: Your Honor's ruling last week with respect to the access to the report of the internal affairs investigation and the reporter shield law were very careful narrow rulings addressing essentially the admissibility of false leaks, as your Honor characterized the information in terms of fabrication or disinformation, primarily with respect to the Defense contention that blood was planted on the sock, and the Court concluded that it was speculative to infer, even if a source of the disinformation were the LAPD, that the source participated in the planting of evidence or spoke directly with someone who did. We accept that ruling even though we disagree with it. My purpose today is not to seek a reconsideration of that ruling, but the issue that we'd like to address today is a broader one, and that is whether the leaking of accurate information by the Los Angeles Police Department is material and relevant to the Defense. And in addressing this broader issue, we would ask the Court to take a broad view of the Defense theory of this case in the terms in which that theory will actually be argued to the jury.
This aspect of the Defense in this case has frequently been mischaracterized by the Prosecution, and I think that's part of the problem in questioning witnesses. They've asked witnesses whether they are part of an elaborate conspiracy to frame Mr. Simpson, and that kind of sarcasm completely misses the real thrust of the Defense in this case. We don't have to show an elaborate conspiracy to frame an innocent man. In fact, an elaborate conspiracy would be inconsistent with the pervasive ineptitude that has characterized both the investigation and the prosecution of this case. Our defense quite simply is not that there is an elaborate conspiracy, but simply that the evidence in this case cannot be trusted. It cannot be credited, it lacks integrity. That's the defense. And no one should be convicted of a horrendous crime and be deprived of his liberty on the basis of evidence that cannot be trusted. Now, we've offered a number of reasons why the evidence can't be trusted. First, some of the persons who collected or handled the evidence are corrupt. There are individuals involved in this case who are capable of planting or manufacturing evidence and who did so in this case.
Secondly, some of the persons who collected or handled the evidence in this case are incompetent. Acceptable professional standards for the handling of evidence were not met or maintained and the documentation that accompanied the collection of the evidence lacks credibility or lacks precision. Thirdly, some of the persons who collected or handled evidence in this case are careless, that the sophisticated scientific testing is of little use if evidence has been contaminated by careless handling. And finally, some of the persons who collected or handled evidence in this case are manipulative. The goal of this investigation was not a search for the truth, but a search for the restoration of a tarnished image. Evidence and information were handled in ways not designed to assist the Court, but in ways designed to enhance the public image of the Los Angeles Police Department. I think it's often overlooked that the motive to plant blood on a sock or on a gate may not have been to frame an innocent man. It may have been done by persons who were convinced that Mr. Simpson is guilty and who were concerned that previous screw-ups had compromised the ability to prove that guilt in a court of law and would have to be enhanced by extra curricular efforts. Now, the motive doesn't make any difference. We don't have to prove the motive. The integrity of the evidence is just as questionable whether it was done to frame an innocent man or whether it was done to restore the tarnished image of the Los Angeles Police Department. And in addressing the materiality and the relevance of the leaks, we believe the appropriate question for the Court to ask is, does evidence of leaks, even of accurate information by the Los Angeles Police Department, assist the trier of fact in answering the question, should I trust evidence that was collected and processed by the Los Angeles Police Department. Knowing, for example, that reports of scientific test results faxed to the Los Angeles Police Department were given to newspaper reporters before they were given to Prosecutors or to Defense lawyers or to the Court in this case, does that tell you anything about the competence and care of those who were entrusted with maintaining the integrity of this evidence? Now, while your Honor has suggested that the leak of September 21st was a fabrication, we would ask you to just put to one side the false part, the false part that DNA tests had already been conducted on those socks. The reports were accurate in leaking the information that blood had been uncovered on one of the socks or discovered on one of the socks and that this blood had been linked to the victim Nicole Brown Simpson by means of testing, even though the part about what kind of testing was conducted was inaccurate. And if you look at the timing of the leak of that information, the part of it that is accurate, it comes the day after the LAPD laboratory conducted a test to show the PGM subtype of the blood on that sock, and the knowledge even that that test had been conducted had not been transmitted to the Defense, to the Prosecution, to the Court, and it came--the leak came on the same day that this Court made a finding of recklessness on the part of the chief investigating detective in the course of pretrial motions in this case. That finding the Court will remember was made on September 21st, 1994. And it doesn't take a rocket scientist to conclude that what was going on may have been news management controlling the spin. And aren't we entitled to ask, do you trust evidence collected by the Los Angeles Police Department in this case knowing that the security and confidentiality of evidence was manipulated in order to shape public opinion.
Now, we can put to one side whether its purpose was to manipulate public opinion against O.J. Simpson knowing that a jury was in the process of being selected. Assume that wasn't even the purpose, that it was to manipulate public opinion in favor of the Los Angeles Police Department on a bad news day when the LAPD was taking a hit. The result is the same and the result is, we have less trust in the LAPD. We have less confidence in the evidence that they collected and handled. And finally, I would ask the Court to consider the materiality and relevance of this evidence as rebuttal to contradict the testimony of key Prosecution witnesses, the testimony, for example, of Detectives Vannatter and Lange, that the investigation conducted in this case was a thorough and professional one consistent with their years of long experience as homicide detectives. The implicit message of that testimony was simply, you can trust us and you can trust the evidence we collected, and the lapses in procedure such as bringing a blood vial of the suspect back to the scene in a coat pocket were minor and inconsequential and don't effect the integrity of the evidence.
THE COURT: Actually I thought it was in a gray envelope.
MR. UELMEN: A--
THE COURT: Gray envelope.
MR. UELMEN: Well, you're right. It was in a gray envelope. Bringing it back to the crime scene, however, certainly was a departure from normal procedure. And there have been lots of departures from normal procedure that have been brought out in this case. And those departures raise questions, and the counter to those questions has been, you can trust us, you can rest assured that the evidence was handled with integrity. And that's the relevance of these leaks because it suggests to the Court--to the jury as the finder of fact that you need to really wonder about how much confidence you can have in this evidence, how much trust you can have in those who collected and processed it. There's also the testimony of Mr. Matheson with respect to elaborate special security established for the security of the evidence in this case. I mean, they really describe the evidence control facility as a Fort Knox. And if penetration of that level of security was possible to manipulate information by selective leaks of that information to the press, that raises an inference. And that inference is a question. Can you really trust that the evidence was as secure and as safe from any tampering, from any contamination, from any compromising as the Prosecution would have us believe. Now, of course there's lots of other evidence to support the Defense case to show that there was corruption, there was incompetence, there was carelessness, there was manipulation. But the test of materiality and of relevance is not whether the evidence is needed to prove a fact that can't be proven by any other means. It's whether the evidence supports an inference which is of consequence to this case. And I can't think of any greater consequence to this case than the integrity of the evidence, the degree of trust we have in those who collected and handled it, the degree of confidence we have in their credibility. Now, your Honor mentioned in your order that leaking is nothing new, that from the Pentagon Papers to Watergate, we have seen leaks used to manipulate the press and to put a spin on information. And one reason may simply be that those who are entrusted with sensitive information don't deserve to be trusted. And one consequence of a breach of that trust should be, when it is exposed, they have to answer for it. And one place you answer for it is in a court of law in which you are coming in and seeking to persuade a finder of fact you can trust us, you can have confidence in the way we handle this evidence. And that is precisely why we believe it is relevant to show that these leaks came from the Los Angeles Police Department, leaks of accurate information to undermine the trust that the jury should have in the integrity of the evidence.
THE COURT: Mr. Uelmen, what specific--what are the specifics of your offer at this point? What do you intend to present?
MR. UELMEN: We would like to present simply a confirmation of the accuracy of the published reports with respect to accurate information. That is that the leaks of the faxed information from Cellmark that came to the LAPD on September 12th actually appeared published in newspapers before they were delivered to the Defense or the Prosecution in this case. We believe we can separate the truthful part of the report of September 21st from the untruthful part. We would not offer the portion relating to DNA testing, but we would offer the portion relating to finding blood on the socks to an attempt to link that blood to Nicole Brown Simpson and showing that this information was published, appeared in--on television before that information had been conveyed to this Court, and we would also offer Mr. Bosco's report with respect to the active attempt to shop information around to news media regardless of showing that that information was false or inaccurate.
THE COURT: Thank you. Mr. Goldberg.
MR. GOLDBERG: Good afternoon, your Honor.
THE COURT: Good afternoon, Mr. Goldberg.
MR. GOLDBERG: Kind of reminded here of one of those monster movies that we've all seen where the monster is impaled and burned and stabbed and just when you think it's finally going to rest, it rises up again out of the ashes.
THE COURT: You're probably speaking of Friday the 13th.
MR. GOLDBERG: Yeah. I think so. I'm referring of course now to the matter before the Court, not Professor Uelmen. Your Honor--your Honor, when we spoke very briefly about this issue on Thursday, it was mostly in the context of scheduling. I made a comment to the Court to the effect that I felt this was a simple issue, and I just wanted to say to the Court that I fully appreciate the complexities of this litigation that have confronted this Court, and I did not mean in any way for that comment to in any way underestimate or be contrary to my appreciation of the extraordinary task this Court is asked to face, perhaps one that no other Judge has had to face before in any litigation in terms of the number and complexity of the legal issues, the number of lawyers on both sides.
THE COURT: Well, wait until you see asbestos litigation.
MR. GOLDBERG: Well--and the shortened pretrial and extensive media coverage, and I simply wanted to make it clear to your Honor that that comment was in no way meant to derogate my appreciation of those complexities. What I did mean by that, your Honor, and perhaps it was a little bit misstated, is that in our view, this isn't a simple issue, but it is a non-issue or an issue that has already been resolved. In other words, that your Honor has already made all the rulings and all the decisions that are necessary in order to determine the admissibility of this evidence; and that is that your Honor has already made a determination in the context of discovery issues that the evidence here is not material. And in going back to the record of the arguments that I believe took place on Wednesday, the Court started out by deciding the question of whether or not this evidence was going to be sufficient to--the prima facie showing was sufficient for the purposes of discovery of police personnel records. However, the Court's written ruling only addressed the issue of the shield law, but the Court actually disposed of both discovery issues, one orally and the other in writing. And during the oral pronouncement of ruling, the Court said that this record does not support a finding that access to the results means access to the evidence itself. That assumes that access to the results does not exist in this case and the mere fact that the results as reported were incorrect is a clear indication to the Court that the source of this leak did not have access to that information and did not--was not a source close to the investigation and was not in fact knowledgeable. The Court then went on to state that under the Delaney test as well, the Court was making a finding that the record, the entire record does not support a finding of materiality. So the Court did not rule as counsel I think has suggested, that this evidence wasn't relevant on the issue of suggesting that evidence on the socks was planted. The Court ruled that it was not material period under a variety of theories that were proposed by the Defense. Now, in trying to count what was just said this afternoon by counsel, it looked like he said approximately three things or offered three alleged areas of relevancy of this evidence.
He said something that I think is essentially the same as his rush to judgment argument, that the fact finding process was not an objective search for the truth. I've already extensively argued that, counsel has on a number of occasions, and the Court rejected that as being a basis for materiality. The second thing that he said was that it shows that the handling of information was not trustworthy and, therefore, it undermines confidence that the jury should have in the maintenance of the security of the evidence. And the Court heard and rejected that argument as well. There is no logical connection between the two. And then the third argument that I heard counsel make today, which I also believe was made when we last argued this, was the argument that this was an effort to shake public opinion on behalf of the Los Angeles Police Department. And as the Court can recall, my response at the time it was first made was that if some police officer somewhere out giving traffic tickets was proselytizing that in his opinion, the Defendant was guilty and the evidence overwhelming, that there clearly could be no possible relevance to that case. So this issue again was argued and rejected by the Court. The Court has very simply found that this isn't material. Now, we suggest that that disposes conclusively of the evidence in this case because as I believe the Court's comments indicated when we argued this issue last, the issue of materiality for relevancy purposes is only different from the issue of materiality for discovery purposes. Insofar as for discovery, it would be a slightly lesser standard because the issue there is whether or not a prima facie showing can be made that they're going to discover evidence which might be beneficial to the Defendant. They don't even have to show it's necessarily going to be admissible per se. So here the standard is higher in terms of materiality than it was at the time the Court was ruling in the context of the discovery hearing. So we would suggest--and we are very confident in this and I think the Court's comments are consistent with this--that it is not logically possible for the Court to rule that this evidence which was so immaterial that the Court wasn't even going to allow further discovery on the issue or further exploration to perhaps give the Defense the opportunity to shore things up a little bit was so immaterial for those purposes, is nevertheless sufficiently material that not only should it be admitted or not only can it legally be admitted in front of a jury and overcome a relevancy objection, but it could also overcome an evidence code section 352 objection that it is more probative than prejudicial. Those two positions are irreconcilable. The Court cannot logically come to the conclusion that it's so irrelevant that no further discovery should be allowed or at the same time conclude that it is sufficiently material and probative under 352 to come before the jury.
THE COURT: But didn't we hear a different offer today, the offer being that arguably, premature disclosure of information is somehow relevant? That's a different argument than we heard before.
MR. GOLDBERG: Yeah. Somehow relevant, but relevant to what? He says relevant to rush to judgment, relevant to mishandling of information and relevant to shake public opinion, and all those arguments have been previously made. And what I suggest to the Court is this. I think we all recognized that to the extent that the Defense was unable to show that this was an individual close to the investigation, that this--all of the arguments of relevancy were extremely tenuous, and we gave the elevator example of someone overhearing in the elevator, and counsel is never able to come up with a satisfactory explanation how that could be relevant. But they also couldn't show how it could be relevant if a source much closer to the information had heard it. So if the Court was not going to give them the opportunity for discovery purposes at least to try to pinpoint how close this individual was to the investigation, how can we say in the absence of knowing that information at all and in a record that leaves us to believe that the elevator operator possibility is equally reasonable as the investigating officer possibility, how on the state of this record where either of those inferences is equally reasonable can we say that this is relevant for the purposes of admissibility? I don't think we can. And it's of great concern to the People not only of course that the Court make the correct rulings--and we believe that your Honor has, especially in this regard. And you gave it enormous amount of attention and heard an enormous amount of argument, and we recognize that this is an issue that is largely an issue--mixed issue of law in fact and, therefore, subject to the trial Court's discretion. It's not only important to us that you make the right rulings, but it is also in the People's interest that the record is consistent so that if we get to the point, as we believe we will, where a reviewing court is looking at what the Court did, they will be able to understand that your Honor exercised your discretion understanding completely what the legal standards were and correctly understanding the law that applied. And we believe that saying that this is admissible evidence, already having ruled that it's immaterial for discovery purposes is so illogically--is so illogical and so inconsistent that we would be concerned about the inconsistency of those two rulings for purposes of the record. And if the Court for some reason is now going to reevaluate all of these issues--and we certainly don't think the Court should do that--that the Court would also have to reevaluate these issues for the purposes of discovery as well in order to be logically consistent, and that would be the only way of doing it. And then your Honor would have to in effect say, well, if this is the kind of thing that can go before the jury, maybe we should give the Defense the opportunity to shore it up a little bit. Now, we've argued over and over again as to why it's irrelevant, why it's immaterial, and I hate to repeat those arguments again here, your Honor. I just don't think that we should. I think that your Honor has ruled. I think the Court should simply decide that your previous rulings are dispositive of the issue now before your Honor. Maybe there's some additional question I can answer. Maybe your Honor feels that they have somehow materially phrased the issue differently and I haven't adequately addressed that. If that's the case, I'd like the opportunity to do so.
THE COURT: Well, as I posed to you, the offer that was given just now by Mr. Uelmen included the true reporting, however, arguably in a premature manner.
MR. GOLDBERG: Of what? Of the socks?
THE COURT: Of events, any event. Focusing, for example, on the PCR testing that was conducted by Cellmark and reported to the Los Angeles Police Department my recollection somewhere around September the 8th. Yet, those results were not transmitted to the District Attorney's office until approximately the 14th is my recollection of the record. However, the news reports appeared in Los Angeles times regarding that testing on September 11th is my recollection of the record. The dates may be a day off or two.
MR. GOLDBERG: Now, previously, the Defense only wanted to introduce reporting as to the socks. Maybe now they're broadening it and they also want to introduce other reporting. I don't know.
THE COURT: That's what I heard Dean Uelmen to say.
MR. GOLDBERG: Okay. And then we have to ask ourselves what is it relevant to. I mean, just saying, well, it's relevant, we'd like to get it in doesn't do it. What is it relevant to? I think that they're now conceding that your Honor has decided that none of these leaks, so-called leaks are relevant to the issue of the socks and planting evidence on the socks. It doesn't go to evidence planting. Does it go to bias? Well, we have to know who on earth was responsible for the leak before we could even get to the issue of bias. So it doesn't go to that. We've heard rush to judgment, and we've argued previously that this whole question of rush to judgment is not an issue because the subjective mental processes of the investigating officers or the Prosecutors is not relevant. If it were, as I previously stated, we'd need expert testimony as to what a reasonable police officer would have believed in terms of the Defendant's guilt and when he would have formed those beliefs, and then they'd be entitled to call an expert in rebuttal to suggest to the contrary.
It would just take us down a path that would lead us into a form of inquiry, into a type of inquiry that is totally irrelevant here. The jury has to decide this based upon the objective persuasiveness of the facts, not whether they think that the detectives correctly evaluated those facts. Is it relevant to show some sort of an effort to shake public opinion? Well, if it is, then does the Prosecution get to put in the numerous press conferences--I guess you couldn't call them leaks by the Defense--in their efforts to shake public opinion? You know, there are many people watching this trial that do believe that there is a conspiracy of sorts who would characterize that conspiracy to obstruct justice in their minds as emanating from the Defense's efforts to try to saturate public opinion with their particular viewpoint and their particular spin on this case. I don't think that's admissible. I mean, whether it's proper or not, whether it should be done or not, it's not admissible. So are we going to be able to get in that evidence? I do not see any logical theory as to how on earth you can try a case based upon information that has been given to both sides by the press, especially when they can't even pinpoint and there's no way of being able to pinpoint who on earth was responsible, if anyone for sure, of giving this information to the press. Now, with respect to the admissibility of this evidence, your Honor, there are some other issues that I'd like to get to, but I don't think I need to unless the Court somehow decides that it's going to reevaluate the very carefully worded written decision and oral decision that your Honor already made. But those other issues include things like hearsay, absence of foundation, the fact that a lot of this evidence would require witnesses to offer inadmissible opinions as to who it was that they were speaking to without foundation as to how they know who they were speaking to. There are a lot of other legal issues dealing with authentication, dealing with hearsay, dealing with opinion and conjecture, but I would prefer with the Court's permission not to address those at this point. And there's also another issue beyond those as to how we are going to cross-examine witnesses who would only give us partial information and invoke some kind of a shield in order to prevent any kind of meaningful cross-examination. That would simply offer conclusions and opinions without allowing us to try to figure out what the basis for that conclusion or opinion is.
With your Honor's permission, I would ask to be allowed not to argue those right now--and I previously argued them in another context before anyway--because they are not relevant if the Court concludes that its ruling are already dispositive on this issue.
THE COURT: Thank you.
MR. GOLDBERG: Thanks.
THE COURT: Mr. Uelmen.
MR. UELMEN: Your Honor, with respect to the dates of the Cellmark leak, I believe it was a report from Cellmark dated September 8th that was faxed to the Los Angeles Police Department on September 12th and then subsequently refaxed to the Prosecutor on September 16th, and it appeared in the Los Angeles times I believe the 14th or 15th before it had actually been delivered. Mr. Goldberg's first point seems to be that all of these questions and issues have already been argued and rejected. And of course, your Honor is the best Judge of what you have previously rejected. We believe that the prior ruling was based on a very narrow premise addressing the admissibility of false information being leaked. And what we're talking about here is just the accurate information, and we were not going to try to evade your Honor's prior ruling by offering evidence of false information being leaked and argued from that that we can imply there was some connection with the actual planting of evidence on the sock. We realize your Honor's ruling has foreclosed that. But what we're talking about here is a different inference drawn from a different fact. Inferring from the fact that accurate information was leaked to the news media before it was delivered to the Prosecution or the Defense, that that in and of itself gives rise to some distrust of the attempt by the Los Angeles Police Department witnesses to create the impression with this jury that the evidence was very carefully handled, that the information was kept in very secure form and, therefore, that they need not be concerned about any risks of compromising this evidence. And quite simply, that is a faith, that is a trust they should not have in the evidence based on the performance of the Los Angeles Police Department in this context, in the context of leaking information. Mr. Goldberg makes the point that the standard of materiality is actually more liberal with respect to discovery than it is to actually offering the evidence. But what he overlooks is that here we have the evidence.
What we are seeking to offer is actual publication of information and to show when that information was published as opposed to what kind of control existed over the information at the time it was published. There's no hearsay problem because we're not offering this to prove the truth of what is asserted. We are simply offering it to prove when it was leaked, when it was released. And authenticating that will be a very simple matter. In fact, we already in the 402 hearing heard the testimony of Michele Kestler that very carefully defined who had access to this information at the time it was leaked. Now, Mr. Goldberg says, well, we can't show that someone close to the investigation was responsible for the leaking. It is a logical inference if the testimony is that information was tightly controlled, that the number of people who had access to that information can be counted up and accounted for, that if the information is then published, the only explanation can be that those people who were responsible for its integrity and for its security were either corrupt, incompetent, careless or manipulative. And that's precisely the question that we're raising about the handling of the evidence in this case.
And finally, Mr. Goldberg did not address at all the question of the relevance of this evidence as rebuttal evidence to the testimony of the detectives, of the lab technicians who described a procedure in order to enlist the trust of the jury set up to maintain the security of this evidence.
THE COURT: Thank you, counsel. All right. The issue before the Court is the relevance of the proffer just made by the Defense regarding leaks of information, some of which, most of which turned out to be accurate information, some of which was decidedly inaccurate, the issue being whether or not premature disclosure to the news media before it's known to the Prosecuting attorneys or before it's known to the Defense or the Court is probative of some of the issues that have been raised in this trial. The Defense is quite correct that they have vigorously raised before the triers of fact challenges to the competence of the individuals who collected the evidence, have raised issues regarding carelessness in its handling, and those issues are before the Court both through the cross-examination of the Prosecution's witnesses and the testimony of the Defense witnesses that have been offered to date.
The problem that I have with the offer is that the probative value of news information, the probative value given what it attempts to prove is very slight to the point of being irrelevant. And under evidence code section 350, I will exercise my discretion and make a finding that it is not relevant. Also, I've viewed this in light of evidence code section 352 as well in that given its slight, if any, probative value, the time that would be required first to present it and then to allow the Prosecution to rebut it by bringing in timely news information would be an undue use of the Court's time. I'm reminded of the Callahan cartoon that's often published regarding what the legal process appears to have become, and this is not a trial by news media sources, leaks, tabloids or otherwise. The objection will be sustained on both grounds.
MS. SAGER: Your Honor, in light of the Court's ruling, I would ask that Miss Savage be released from the subpoena that's been directed to her since there's no relevant testimony she can offer.
MR. SULLIVAN: Same with respect to Mr. Bosco, your Honor.
THE COURT: I have no idea what other relevant information they may have. As to these two issues, the answer is yes, I'm making a finding that they have no relevant information to offer. I have no idea.
MR. NEUFELD: Your Honor, before we proceed with the jury--
MR. SHAPIRO: Your Honor, can we just respond? As far as Mr. Bosco, we will release him from the subpoena.
THE COURT: All right. How about Miss Savage?
MR. COCHRAN: May we have a moment, please?
(Discussion held off the record between the Defense attorneys.)
MR. UELMEN: With respect to Miss Savage, we'd like to confer on that at greater length before we release the subpoena.
THE COURT: All right. Miss Sager, I understand your client is out of town?
MS. SAGER: Yes. That's right.
THE COURT: Not due back until the 21st?
MS. SAGER: But if there is going to be another opportunity, request to bring her to the stand, I'd like to be heard and have an offer of proof made as to what possible relevant evidence she can offer given that the Court has now ruled that any evidence with respect to inaccurate portions of her report cannot be offered and that any accurate portions of her report cannot be offered. I fail to see what's left that Miss Savage can testify about. She's not the custodian of records. So if the tapes are or are not going to be introduced--
THE COURT: Well, counsel, let's not argue the issue now. She's out of town. Counsel have declined to release her from the subpoena. We'll take it up on the 21st if they insist on calling her to the stand.
MS. SAGER: Thank you.
THE COURT: All right. It's premature. Thank you, counsel.
MR. NEUFELD: Your Honor, in light of the rulings you just made, I need a little bit of guidance because the very next witness, as you know, is Michele Kestler, and it's my understanding from the Court's rulings that obviously testimony even regarding reliable and accurate leaks cannot be disclosed to this jury through either Bosco or Savage. My question has to do with Michele Kestler. And in terms of timing, I can talk about this now if you'd like or we can maybe take a short recess after we finish this witness so I can make the applications at that time if you'd like.
THE COURT: Let's finish Dr. Rieders first.
MR. NEUFELD: Okay.
THE COURT: And then we'll see where we are in terms of Kestler. Also, we also have counsel here in the courtroom who represent Mark Fuhrman who wanted to address the Court on certain issues.
MR. NEUFELD: Okay.
THE COURT: All right. Counsel.
MS. BUTLER: Good morning, your Honor. My name is Laurie Butler. I'm Robert Tourtelot's partner.
THE COURT: Good afternoon, counsel.
MS. BUTLER: And we are here basically as a result of finally having obtained a copy of the protective order that was issued with respect to the Laura Hart McKinney tapes. And specifically, I would reference the Court to two things. My partner sent you a letter referencing his concerns about the confidentiality with which the tapes are going to be maintained and the right of counsel for the Defense to make commentary about such tapes on such shows as Larry King Live and other television and radio programs. Those concerns were expressed by Mr. Tourtelot. We are also here, your Honor, this afternoon to seek access to the tapes on behalf of Mr. Fuhrman. The reason we are seeking such access is that, first of all, the order was made in our absence without our knowledge and without any opportunity on behalf of Detective Fuhrman to object to or make any statement with respect to his interests. And we believe that he does have an interest in these tapes. They are his voice in great part. And again, I am speaking without having heard the tapes because we have not had access to the tapes. But it is my understanding that they represent a dialogue between Miss McKinney and the--and Detective Fuhrman which was to form the basis for a Hollywood screenplay. With that in mind, I think the attorney for Laura Hart McKinney has noted in an LA Times article which appeared on August 12th, 1995, that there was some sort of business relationship between Detective Fuhrman and Miss McKinney. And from that, I think it's implicit that Detective Fuhrman has rights to those tapes and--
THE COURT: I'm sorry. Are you arguing that because it's reported in the L.A. Times, that I should take that--
MS. BUTLER: No. No, I'm not, your Honor.
THE COURT: --as evidence of a business relationship?
MS. BUTLER: No. I'm simply pointing to that as a statement by the attorney, by the purported owner, the woman who has claimed before this Court and other courts that she is the owner of the tapes. We are taking the position and we are representing to this Court that to the extent that Mr.--that Detective Fuhrman's voice is on that tape and he is an author of the statements in that tape, that tape was to be used ultimately for a screenplay. It is categorized in the protective order as intellectual property, which connotes a creative sort of written or transcripted creation, that Detective Fuhrman has some rights to these tapes and certainly has a right to access to them along the same lines as has been given to the Defense counsel, the District Attorney, the Court and their respective support personnel.
THE COURT: All right. Miss Butler, let me ask you this. Did your client, Mr. Fuhrman, have a contractual consulting agreement with Miss McKinney which includes access to the materials, copies, transcripts, et cetera?
MS. BUTLER: It is my understanding that the relationship was one where he was to be involved in the ultimate exploitation of these tapes on some basis. I do not know the exact nature of the contractual terms because this was a relationship that evolved and the taped sessions occurred over several years and the tapes were never ultimately reduced to a screenplay or a published work. But he clearly has rights in those tapes, and it would seem to me, your Honor, that he would have a right to at least hear what is being said. And let me just focus on the second concern, and that was what my partner expressed, which is--and as I read the order, it does not bar anyone from voicing publicly their reaction to the tapes, whether they found them to be upsetting, to be chilling, to be anything. Once that happens, you have a body of tapes which have been characterized by one party with no prohibition by the Court, and there could be further injury and defamation to Mr. Fuhrman, Detective Fuhrman, and he has no ability whatsoever to rebut any of this because he's been denied any access to his own voice.
THE COURT: Has--Miss Butler, has your client made any request of Miss McKinney for a copy of the tapes or transcript?
MS. BUTLER: He is making it through us at this time, your Honor.
THE COURT: Well, the person who actually has the possession and control of the tapes and the transcript is still Miss McKinney. What has been transmitted to the Court is a copy. Have you made any inquiry of Mr. Schwartz or Mr. Regwan regarding Miss McKinney's--
MS. BUTLER: I'm going to defer to Mr. Towne because he has made those attempts and he is our cocounsel at this point, and I'll let him address that because he had that--made that inquiry.
THE COURT: All right. Good afternoon, Mr. Towne. Would you spell your names for the court reporter, please.
MR. TOWNE: T-O-W-N-E.
THE COURT: Thank you.
MR. TOWNE: Richard Towne for Detective Fuhrman. On Friday, I attempted to contact Mr. Schwartz at his office. I left a very detailed message advising him of our interest, our representation and our concern because we understand, without having had the same access that other parties involved in this matter have had to the tapes, that they are protected and protectable and that Detective Fuhrman has a right, an interest in those tapes under perhaps copyright law, under perhaps California's common law with respect to the protection of ideas disclosed in a confidential relationship. And the upshot, I have not received, at least as of the last time I checked my office today, any response from Mr. Schwartz. Having been provided a copy of your order, we concede I think there is great significance to the fact that Mr. Schwartz characterized the tapes and the other material as intellectual properties, suggesting, properly so I believe, that they are creative works, works of fiction created for dramatic purposes for subsequent exploitation in a commercial context. We have now a situation where pursuant to the Court's order, one if not the creator of this potentially valuable--and we say potentially valuable because Mr. Schwartz has so characterized the material in excerpts and articles from the times. We have those potentially valuable properties outside of Detective Fuhrman's access, custody, control or review where their authenticity and in fact the manner in which they've been maintained in custody over some years has not been determined. And I think it ought to be determined. So our situation is, we would like equal access to that which the parties, pursuant to the Court's order, now have.
THE COURT: All right. Have you consulted with counsel for either side, either the Prosecution or the Defense, and ask for their cooperation in contacting Miss McKinney for this purpose?
MR. TOWNE: No. We have not had the chance to do so, but would like to do so.
THE COURT: All right. Do the people have any position?
MS. CLARK: It sounds to me like they're asking for Detective Fuhrman's right to know what's on the tapes and the transcripts. And as long as the proprietary interests are preserved as indicated in the court order, the protective order, the People really have no position.
THE COURT: Mr. Cochran.
MR. COCHRAN: As regards Mr. Simpson, the problem is--and I don't have to give this Court a history of what happened to these tapes--you know, we're the ones who went and got these tapes. What the Court has is a copy which I arranged to have brought out here or what the Court will have shortly. What counsel has is a copy. These are impeachment. They don't have a right to these tapes. Fuhrman doesn't have a right to these tapes. What they should be doing is talking to Matthew Schwartz and Ron Regwan regarding these tapes. I'm glad they admit it's Mr. Fuhrman's voice. It is his voice. This is not a screenplay. It's dialogue and it's an interview is what it is. It's called "Interview with Mark Fuhrman." Now, we have no desire and will not, short of an order from this court, turn anything over to them because this is our impeachment of a witness who is still on the stand in cross-examination in a criminal case. And that's the issue in this case. And the Court knows beyond that where this case is going to be--where we expect this case to go beyond this. So we're not going to cooperate with them with regard to this. They can talk to their client if they want to know what he says. He can tell them what he said over the last 10 years. We feel very strongly about this. This is the fruits of Mr. Simpson's lawyers' labors, and we are now going to use those, as the Court knows, for impeachment of this witness and beyond this trial. And so we feel very strongly about it.
MS. BUTLER: May I respond?
THE COURT: Yes. Miss Butler, the problem I have here is that under the discovery laws here that govern the conduct of this case, the Defense has no obligation to disclose information that they are going to use for the purposes of impeachment, which they claim these tapes are. So I don't feel that I'm in a position to order them to turn this over to you. However, it seems to me that what you have is a--at this point in time, a civil dispute with Miss McKinney regarding whose property these really are. And I would assume that she would be cooperative with Mr. Fuhrman and his counsel in turning over a copy of the tape and of the transcript because she cooperated with Defense counsel. When the Prosecution counsel made contact with her, she was also cooperative with them. Immediately upon learning that they wanted to have a copy and in fairness, gave them a copy and subjected them to the protective order. I assume that because of the relationship between Mr. Fuhrman and Miss McKinney over a number of years, she would at least out of a sense of fairness or obligation provide him with the equal access, a copy and the transcript. But you understand the dilemma that I'm under, that I'm here in a criminal trial--
MS. BUTLER: No. I certainly understand--my concern was, it seems to me that the protective order really at this point precludes us from getting access to the tapes by virtue of the wording limiting the parties that may have access to it solely to those defined in the protective order.
THE COURT: Well, I don't--
MS. BUTLER: And I don't know whether Miss McKinney or her attorney has the right to unilaterally at this point in time to disseminate tapes to Detective Fuhrman or his counsel barring a further order of this Court, which is why we're here. If we felt we could accomplish this solely through a dialogue, a request, an agreement with her or her attorney, we would have done that. And we did try to do that, but we got no response. But we feel, having learned about the order and having first seen it today, that that's where we are.
THE COURT: All right. Counsel, let me do this. Let me have my clerk call Mr. Schwartz' and Mr. Regwan's office.
MS. BUTLER: Okay.
THE COURT: I'll ask them if they're willing to cooperate with you if we modify--clearly modify the protective order to allow Detective Fuhrman and his counsel one copy with an order against any additional duplication and see if they have any objection to providing that to you within 24 hours.
MS. BUTLER: All right.
THE COURT: So why don't you stand by. I would like to finish my jury trial this afternoon. So I will have Mrs. Robertson or my law clerk, Mr. Byrne, make the contact with Mr. Schwartz and Mr. Regwan, and we'll see if we can accomplish it the easy way.
MS. BUTLER: Okay. Thank you, your Honor.
MR. TOWNE: Thank you very much.
THE COURT: Don't go away.
MS. BUTLER: We'll be back here.
THE COURT: All right. Mr. Ming, would you make sure that Mr. Byrne takes care of that? Thank you.
MR. GOLDBERG: Your Honor, may I just inquire with respect to Miss Kestler, when it is we are going to need her if at all this afternoon? We did agree to the Defense apparently that we have her here when they needed her. So I'd just like--
THE COURT: Well, we still have a 402 issue before she testifies. We must conclude Miss Clark's cross-examination, Mr. Blasier's redirect, Miss Clark's recross. So--and it is now 2:30, and this is a 5:00 o'clock day. So my guess is, we would get to her 4:00 o'clock, but that would be starting the 402 hearing. So--my understanding is that she's at piper tech, correct?
MR. GOLDBERG: Right.
THE COURT: Which is 10, 15 minutes away. So why don't you leave her on call.
MR. GOLDBERG: Thank you.
THE COURT: All right. Is that agreeable to you, Mr. Neufeld?
MR. NEUFELD: That's fine, your Honor.
THE COURT: Okay. But she is available.
MR. GOLDBERG: I spoke to her about an hour ago. She was.
THE COURT: Okay.
MR. COCHRAN: May we approach sidebar with the reporter.
THE COURT: With the reporter?
MR. COCHRAN: Yes.
(The following proceedings were held at the bench:)
THE COURT: We're over at the sidebar.
MR. COCHRAN: Thank you. Good afternoon, your Honor. Your Honor, first of all, this was an extraneous issue. It wasn't us on Larry King Live. It was his attorney, Mr. Tourtelot. There's a dispute apparently between these parties. So I'm just suggesting to the Court I don't think you should get involved in a civil dispute between these parties. They apparently--I think Schwartz indicated something last week about something they had him sign, some agreement. This guy was just like an advisor. He doesn't have any--I don't think you should get involved in this. Furthermore, I think under discovery, they're not entitled to this stuff. This guy is going to be prosecuted. They can give him all they want.
THE COURT: Mr. Cochran, if the parties, you know, who have financial ownership rights in these things can agree amongst themselves, that's one thing. But I made the point that this is a criminal proceeding and I have no jurisdiction to order its production from either you or the Prosecution.
MR. COCHRAN: But that's why I wanted at least to tell you there's some documents--Schwartz told me this is between him and Tourtelot where they made him agree that Fuhrman had a limited role. So I don't think that--I don't think--if they want to give them copies, that's fine. But I don't think this court should make them give a copy.
THE COURT: No. I'm asking if they're willing to do it. I haven't ordered anybody to do anything, just so that's clear.
MR. COCHRAN: That's why I approached the bench. I wasn't clear where we're going because--that's all.
MR. DARDEN: Who is "They"? We keep saying "They." Who is "They"? What do you mean when you talk where "They," being us or "They" being them?
THE COURT: All right. And, Mr. Shapiro, you're excused. I think you're due up in 100.
MR. SHAPIRO: Thank you, your Honor.
MR. COCHRAN: Doesn't he need counsel?
THE COURT: He probably should have counsel. I think he can fend for himself. All right. Anything else?
(A conference was held at the bench, not reported.)
THE COURT: Miss Butler, would you join us for a moment, please?
(Miss Butler is present at sidebar.)
THE COURT: Mrs. Robertson, would you come over here. All right. We've been joined by Miss Butler. Miss Butler, my clerk has just contacted Mr. Schwartz. Mrs. Robertson, would you tell Miss Butler what Mr. Schwartz said.
THE CLERK: He said he is inclined to allow you access of the tapes. They're not inclined to give you a copy of them because they're trying to control the number of copies that they have available outstanding. So they said they are inclined to allow you and Mr. Towne to have access to the tapes. They remain set that they have to obtain their client's approval and she's not available at this time. They'll give me a call as soon as she is available to let me know the ultimate decision.
MS. BUTLER: So it seems we should follow up with him.
THE COURT: That's our status at this point. Yes, I would recommend you follow up.
MS. BUTLER: Your Honor, is it necessary for us to remain in the court to finalize this at all?
THE COURT: I don't think so. So let me know what happens.
(Miss Butler leaves sidebar.)
THE COURT: Okay. Anything else we need to do? All right.
(The following proceedings were held in open court:)
THE COURT: All right. Deputy Magnera, let's have the jury, please. All right. Dr. Rieders, why don't you come on up. Miss Clark, how much more do you have?
MS. CLARK: How much left? 10 minutes. Well, you know what I mean.
THE COURT: Okay.
MS. CLARK: My questions will take three minutes. I'm anticipating multiplied by 10, the answers will make it 30.
THE COURT: All right. Dr. Rieders, why don't you come on up. How's your water supply?
DR. RIEDERS: Sir?
THE COURT: How's your water supply?
DR. RIEDERS: Ample. Thank you.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we've been rejoined by all the members of our jury panel, that Dr. Fredric Rieders is on the witness stand undergoing cross-examination by Miss Clark.
Fredric Rieders, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: And, Miss Clark, you may continue.
MS. CLARK: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
CROSS-EXAMINATION (RESUMED) BY MS. CLARK
MS. CLARK: Sir, you--I've conferred with your counsel, and he tells me that you have billed so far $13,000 for your services.
DR. RIEDERS: Yes.
MS. CLARK: Does that sound right to you?
DR. RIEDERS: Correct.
MS. CLARK: That does not include your time in court today; is that correct?
DR. RIEDERS: Correct.
MS. CLARK: What else does that not include?
DR. RIEDERS: Anything since June 16th.
MS. CLARK: Okay. And there were hours spent after June 16th I take it?
DR. RIEDERS: Yes.
MS. CLARK: Do you know how many hours were spent after June 16th, 1995?
DR. RIEDERS: No.
MS. CLARK: Can you estimate for us?
DR. RIEDERS: Honestly I can't.
MS. CLARK: Okay. Whatever the number of hours they would be, would you--it was your testimony I think earlier that you bill at the rate of $250 an hour, correct?
DR. RIEDERS: For actual work that pertains to the case. Not just time spent, but actual work pertaining to the case. Some of the work, as I'm learning things, I don't bill for them.
MS. CLARK: All right. In this case, sir, did you spend actual time working on the case since June 16th, 1995?
DR. RIEDERS: I can't tell you.
MS. CLARK: You can't tell us?
DR. RIEDERS: I don't know.
MS. CLARK: At some point, you will submit a bill for those hours; will you not?
DR. RIEDERS: Yes, I hope to after I return this time.
MS. CLARK: And we cannot obtain that information right now?
MR. BLASIER: Objection. Asked and answered.
THE COURT: Overruled.
DR. RIEDERS: I know it will be over $10,000, but I don't know whether it will be 12, 20 or 30. I really don't. I know it will be over $10,000 because I can just see in my head that I've spent more than 50 hours right here in Los Angeles.
MS. CLARK: Uh-huh. All right. Then that would be another over 10,000 in addition to the 13,000 you've already billed, correct?
DR. RIEDERS: Yes.
MS. CLARK: Now, sir, if you will recall, on July 24th, when I pointed out to you that the gate and the sock gave very similar readings to Agent Martz' own unpreserved blood, your answer was, "Yes, surprisingly yes." Do you recall that?
DR. RIEDERS: Yes.
MS. CLARK: And when I asked you how you could account for that, you stated that you could not account for that and you called the results of Agent Martz' unpreserved blood absurd. Do you recall that testimony?
DR. RIEDERS: Approximately, yes.
MS. CLARK: Would it help you to determine whether or not that is exactly what you said if I showed you a transcript of that testimony?
DR. RIEDERS: If that's what it says, I'll concede to it, if you have it right there. I don't want to spend any more time on it.
MS. CLARK: Would you like to look at it, sir?
DR. RIEDERS: No, not particularly.
MS. CLARK: Now, when you called the result on Agent Martz' blood absurd, it was your testimony that you felt it was absurd to find that amount of EDTA in normal blood, correct?
DR. RIEDERS: That's my opinion, yes.
MS. CLARK: Now, after you wrote your report on July 17th, sir, the chromatographs depicting the readings on the gate and the sock stains did not change, did they?
DR. RIEDERS: I don't know what you--
MS. CLARK: The graphs that were generated by the testing performed by Agent Martz on the gate and the sock stains were the graphs that you examined from March until you wrote your report in July--on July 17th, correct?
DR. RIEDERS: Yes.
MS. CLARK: Those graphs did not change after July 17th, did they?
DR. RIEDERS: I didn't see any change, no.
MS. CLARK: And yet, in that report on July 17th, as you previously testified, you wrote that your interpretation of those graphs revealed the presence of one parent and one daughter ion on the sock stain and on the gate stain, correct?
DR. RIEDERS: Yes.
MS. CLARK: And then--after you wrote the report on July 17th and the graphs did not change, you did get the results of Agent Martz' blood that gave the same one parent and one daughter ion result, correct?
DR. RIEDERS: Yes.
MS. CLARK: And then you testified on July 24th that you found then that the sock chromatograph showed the full daughter spectrum which had not been contained in your July 17th report, correct?
DR. RIEDERS: Yes.
MS. CLARK: Now, given the result--isn't it true, sir, that given the result on Agent Martz' blood, you realized that you could not maintain that the substance detected on the gate and the sock stains came from preserved blood unless you changed your opinion as to what the graphs showed on the evidence stains? Isn't that true?
DR. RIEDERS: No.
MS. CLARK: You did change your opinion, however, with respect to what was shown on the graph for the sock stain; isn't that true?
DR. RIEDERS: No.
MS. CLARK: But your report said there was no--did not document a full daughter spectrum, did it?
DR. RIEDERS: It said nothing about the full daughter spectrum.
MS. CLARK: In fact, it affirmatively said one parent and one daughter; isn't that true?
DR. RIEDERS: That's the only thing it referred to, yes.
MS. CLARK: And in your testimony, you felt it was important to point out to this jury that your interpretation of the sock graphs showed the full daughter spectrum on July 24th; isn't that true?
DR. RIEDERS: At that point, yes, after conference with Dr. Martz.
MS. CLARK: And Dr. Martz, you mean Agent Martz? Agent Martz?
DR. RIEDERS: Agent Martz, right. I'm sorry.
MS. CLARK: And did you see Agent Martz' testi--did you see Agent Martz testify on television or did you read his testimony in transcript form?
DR. RIEDERS: Both.
MS. CLARK: And you also of course heard his opinion that the substance that was detected in the gate and the sock stain and in his blood may be consistent with EDTA, but could not be so identified, correct?
DR. RIEDERS: That's what he said, yes.
MS. CLARK: And he said that because he felt that it would be inappropriate--
(Brief pause.)
THE COURT: We're getting it.
MS. CLARK: He said that because he felt it would be inappropriate to say that the EDTA substance was identified unless the full daughter spectrum was present; isn't that true?
DR. RIEDERS: Pretty much, yes.
MS. CLARK: Now, sir, when you indicated previously that you could not account for the results shown in Agent Martz' own unpreserved blood, after you received those results on Agent Martz' blood, what effort did you make to perform any test on say your own blood to see if it came out with the same results as Agent Martz'?
DR. RIEDERS: I didn't make any such effort. I wasn't in a contest of whose blood is better or anything. That's not--I didn't do any experiments. You know that. I've told you before, I didn't do any experiments at all.
MS. CLARK: The answer is then none?
DR. RIEDERS: That's what I--
MS. CLARK: You did no experiments?
MR. BLASIER: Objection, your Honor.
DR. RIEDERS: Again, yes, I didn't perform any experiments.
MS. CLARK: And you've indicated to counsel on direct that there was a method by which you could quantify the amount of blood in a sample in order to be very precise about the amount that there is in there, correct?
DR. RIEDERS: It's very easy to quantify the blood, yes.
MS. CLARK: Now, you actually had bloodstains 47, 50 and 78 from this case.
MR. BLASIER: Objection. Would like to approach.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the sidebar.
MR. BLASIER: Your Honor, these are the items that were transmitted to Dr. Ballard. I thought the Court had previously ruled that the Prosecution was not permitted to go into that. Now, it's beyond the scope of my direct. I didn't ask him any questions about those items and I think it's highly improper that Miss Clark raises them now.
(Discussion held off the record between Defense counsel.)
MR. BLASIER: I believe the Court had previously issued an order with respect to Mr. Harmon trying to contact Dr. Rieders about the samples, and in my view, this is intentional misconduct.
THE COURT: Miss Clark.
MS. CLARK: It's not misconduct at all. The fact that we know that they passed through Dr. Rieders' hand is not inappropriate for us to know. We had to because we have to maintain a chain of custody of the fact that these items went through his hands to Dr. Ballard, is a matter that we have to know for the same reason. And to bring out the fact that he had evidence in his possession which he did not test and did nothing with I think is an appropriate one for the jury to understand as to know where that evidence has been among other things. But given the testimony that he's given us so far, I think that certainly is within the scope.
THE COURT: How is it within the scope since we only talked about the gate and the sock?
MS. CLARK: Because he has talked about--what he has talked about is critical of Agent Martz' testing methods in that he should have quantified more precisely, that he should have done certain things, he had an opportunity to do that on other bloodstains and chose not to do that, he had the opportunity to test at least the known hypothesis, that whatever substance is on the gate and the sock is not EDTA or is in a low level that would be expected to be found in unpreserved blood. There were a lot of things that could be done with that evidence and I think perhaps had been done, but we don't know about it in order to prove or disprove the theory that what was found in the gate and the sock is or is not EDTA, but will be found in unpreserved blood.
MR. BLASIER: It's obvious from that response she's intending to bring this up to call into question in front of this jury what we have tested and what we have not tested. Chain of custody is not an issue anymore. Their exhibits are all in evidence. They've established that. No further proof is needed in terms of what happened to these three samples. This is a completely phony reason for trying to get into this area and I object to it.
THE COURT: All right.
MS. CLARK: The problem with that, your Honor, the fact that it's already in evidence doesn't mean it's not appropriate to show the jury the integrity of the chain.
THE COURT: I agree with that, but I think it's beyond the scope. So I'm going to sustain that objection.
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MS. CLARK: I have nothing further.
THE COURT: Mr. Blasier.
MR. BLASIER: Ladies and gentlemen, good afternoon.
THE JURY: Good afternoon.
REDIRECT EXAMINATION BY MR. BLASIER
MR. BLASIER: Dr. Rieders, good afternoon.
DR. RIEDERS: Good afternoon.
MR. BLASIER: How are you feeling today, doctor?
DR. RIEDERS: I'm afraid I'm terribly irritable. This bronchitis and all has made me quite irritable. I'm sorry if I got carried away by it.
MR. BLASIER: Has Miss Clark's questions made you feel any better?
DR. RIEDERS: Beg your pardon?
MR. BLASIER: Has Miss Clark's questions made you feel any better?
MS. CLARK: Objection.
DR. RIEDERS: After lunch I felt better.
THE COURT: Sustained.
MR. BLASIER: Dr. Rieders, I want to just ask you a few questions about the Sconce matter. Were you the only forensic toxicologist to find oleander in that tissue?
DR. RIEDERS: No.
MR. BLASIER: Were you even the first one?
DR. RIEDERS: No.
MR. BLASIER: Who was the first one?
DR. RIEDERS: Dr. Randy Basil, the Institute of Chemical Toxicology in--outside of San Francisco.
MR. BLASIER: And is he a very highly expected forensic toxicologist?
DR. RIEDERS: Yes.
MR. BLASIER: Now, Dr. Henion, is he a highly respected forensic toxicologist?
DR. RIEDERS: He's really not a forensic toxicologist. He hates to go to court. So--
MR. BLASIER: Now, in stating the opinions that you've stated here today about the Sconce matter, have you relied on Dr. Henion's report in the Sconce matter?
DR. RIEDERS: Did I rely on it? No, not at all.
MR. BLASIER: In terms of the opinions that you stated today about what he did versus what you did.
DR. RIEDERS: Well, I relied on what he wrote in his report.
MR. BLASIER: What aspect of his report did you rely on?
DR. RIEDERS: The entire report. I relied on the list of specimens that he has in it that he sent to the--California, Ventura. I relied on his own statement in there that what he did didn't in any way, shape or form have a bearing on what was in there when this man died years earlier.
MR. BLASIER: And are you referring to a specific part of his report that you relied on?
DR. RIEDERS: Well, you mean--
MR. BLASIER: Specific sentence?
DR. RIEDERS: Yes.
MR. BLASIER: Could you read that, please?
DR. RIEDERS: Sure. Be glad to.
THE COURT: What page are you referring to, Mr. Blasier?
MR. BLASIER: I think it's--
DR. RIEDERS: Sir, this is the first page after the cover.
THE COURT: All right.
DR. RIEDERS: It is in the introduction if you don't have a copy. I can read the whole thing, but really, this is the relevant portion, right? Well, let me read the whole paragraph.
MS. CLARK: Well, objection, your Honor. I think if the witness should be able to read it, I would like to see it.
DR. RIEDERS: Oh, I'm sorry. I thought you had a copy.
(Brief pause.)
MS. CLARK: Objection. Irrelevant.
THE COURT: Overruled.
MR. BLASIER: It's what he relied on.
MS. CLARK: Can I show the Court?
THE COURT: If the objection is relevance, that objection is overruled.
MR. BLASIER: Could you please read that paragraph that you relied on?
MS. CLARK: I'd ask that the witness read it to himself and indicate--it was to refresh his recollection, wasn't it, your Honor?
THE COURT: No. He was asked what he relied upon.
MS. CLARK: Objection. Hearsay.
THE COURT: Sustained.
MR. BLASIER: Did anything that Dr. Henion concluded cause you to change your opinion in any way?
DR. RIEDERS: No, not at all.
MR. BLASIER: Incidentally, after you finished working on the Sconce matter, did the Los Angeles District Attorney's office hire you to work on another case?
DR. RIEDERS: I was already working on one, and I worked on another one afterwards, yes.
MR. BLASIER: And what case was that?
DR. RIEDERS: Dr. Boggs.
MR. BLASIER: Now, I want to ask you a couple of questions about the differences between what Agent Martz has testified to and what you have testified to with respect to whether or not this is EDTA that's on the gate and the sock. Do you have that in mind?
DR. RIEDERS: Yes.
MR. BLASIER: Is it accurate that both of you agreed that the retention time that he got is consistent with EDTA?
DR. RIEDERS: Yes.
MR. BLASIER: That the presence of the parent ion, the 293 parent ion that he found is consistent with the presence of EDTA?
DR. RIEDERS: Yes.
MR. BLASIER: The presence of the 160 daughter ion that he found, would you agree, is consistent with the presence of EDTA?
DR. RIEDERS: Yes.
MR. BLASIER: And he agreed with that; did he not?
DR. RIEDERS: Yes.
MR. BLASIER: Would you agree that the only difference between your opinion and his opinion is based on his inability to find the other piece, the other daughter ion, the 132 daughter ion?
MS. CLARK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. BLASIER: Is it your understanding--what's your understanding with respect to Agent Martz' unwillingness to declare that what he saw was EDTA?
DR. RIEDERS: That he performed one analysis where he scanned widely between 130 and 293 across the spectrum for both daughter ions, and he claimed that in that, he didn't see anything, didn't see the 132 daughter ion, that there was nothing there because the computer didn't print out any numbers.
MR. BLASIER: Now, this machinery that he has--
MS. CLARK: Objection. That misstates the testimony.
THE COURT: Overruled.
MR. BLASIER: The machinery that he has--do you recall that we were talking before about the analogy of a television camera that's set up to focus on you and maybe scan back and forth, but not deviate very much from where you're sitting? Remember that analogy?
DR. RIEDERS: Yes.
MR. BLASIER: And that's the analogy that relates to looking for the 160 daughter ion, correct?
DR. RIEDERS: Looking either at the 160 daughter ion or scanning across and seeing what it appears in that scan.
MR. BLASIER: And when Agent Martz did that scan of the 160 ion, the small range, 158 to 162, he found the 160 daughter ion, didn't he?
DR. RIEDERS: Yes.
MR. BLASIER: Now, does that machinery that he has, that the FBI has at their lab, is it capable of also looking at the 132 ion?
DR. RIEDERS: Yes.
MR. BLASIER: Is it capable of scanning that area within a small range?
DR. RIEDERS: Yes.
MR. BLASIER: Did he ever do that?
DR. RIEDERS: He said he did not.
MR. BLASIER: Now, did you hear Miss Clark's questions about whether it's incumbent upon a scientist to do every possible test available to test a hypothesis?
DR. RIEDERS: I remember the question, yes.
MR. BLASIER: Did Agent Martz do every possible test available to try and see whether or not the 132 ion was there?
DR. RIEDERS: No.
MR. BLASIER: Now, you indicated that Agent Martz did one test that provided some information about whether or not EDTA on a metal can might be lost because--by virtue of it being on a metal surface. Remember that?
DR. RIEDERS: Yes.
MR. BLASIER: What were you talking about? What were you talking about when you referred to that?
DR. RIEDERS: He put some EDTA blood on a metal can surface and also on a control swatch. Then he wiped the surface subsequently, so he had a swatch from the surface and he had a control swatch, and he analyzed both.
MS. CLARK: Objection. No foundation of personal knowledge.
THE COURT: Sustained. Rephrase the question.
MR. BLASIER: Did you review Agent Martz' testimony?
DR. RIEDERS: Yes.
MR. BLASIER: Did you read it and look at it on videotape?
DR. RIEDERS: Yes.
MR. BLASIER: Did you hear his discussion about his test results with respect to the amount of EDTA he got off of his metal can versus the cloth swatch?
DR. RIEDERS: Yes.
MR. BLASIER: And what's your understanding of that testimony?
DR. RIEDERS: That he found EDTA in both, there was less in the one from the can than on the control swatch.
MR. BLASIER: And scientifically, what inference can be drawn from that?
DR. RIEDERS: Well, one obvious inference--
MS. CLARK: Objection. Misstates the testimony, your Honor.
THE COURT: Overruled.
DR. RIEDERS: One obvious inference is that he got less back than what he put on the can. So suddenly it was broken down by the can, swallowed by the can or otherwise. But the likely thing is destroyed, broken down after.
MR. BLASIER: Would it be fair to characterize Agent Martz' testimony with respect to quantity, that his opinion is that he didn't find enough of whatever it was that he found that it could have come from a purple top tube, that he didn't find as much as he would have expected to find?
DR. RIEDERS: I--in my direct, I already answered that. He had no clue as to how much he started with in his samples. So how could he determine what the concentration was? He could only have prior amounts. If you don't know what the concentration is, you don't know what you're dealing with. Said there was EDTA in the blood. And if it was a tiny, tiny amount, then the concentration was the same in the EDTA tube. He doesn't know what the concentration was.
MR. BLASIER: Did he do any experimentation or anything as a result of you watching his testimony indicating that he tested to find out how much EDTA he would expect to find after eight months under the conditions which these samples were subjected to?
DR. RIEDERS: No.
MR. BLASIER: Is that something that if you were trying to do every possible test to test a hypothesis, that he should have done?
DR. RIEDERS: Yes, I would think so, at least partly. I mean, for a period of time. Not necessarily eight months.
MR. BLASIER: Now, if Agent Martz were testing the hypothesis as to whether food or other substances can create levels of EDTA in the blood equivalent to the amount found on the gate and the sock, what would be the proper way to test that hypothesis? What would one proper way be?
DR. RIEDERS: To test 10 or 20 random blood samples from normal people or as many as you can conveniently. It's a simple test, so you can test a lot. It's a standard procedure.
MR. BLASIER: Do you feel that him testing his own blood after placing it in a red top tube for a period of time is an adequate test to determine how much EDTA he might have had in his blood originally?
DR. RIEDERS: Not without adequate quality control such as testing red top tubes, if you put things in them, whether there's any EDTA in the stopper or in the lining, in the silicone lining, which wouldn't be too unusual. You know, without that, it's not a very good way of getting an answer. Besides that, if you put blood in a red top tube, you can't test blood. You blood serum or plasma.
MR. BLASIER: Why is that?
DR. RIEDERS: Because it clots.
MR. BLASIER: How long does it take to clot?
DR. RIEDERS: Five to seven minutes.
MR. BLASIER: May I have a minute, your Honor?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Now, Dr. Rieders, do you know of any other compound that would give you the retention time of 293 and the 160 ions as EDTA does?
DR. RIEDERS: I don't know of any and I have not found of any. I've specifically searched not the Merck index as was mentioned, but there's a separate Merck index publication which lists molecular weights. And by looking at those substances that have a molecular weight of 292 and then looking at their structure, I mean, you know, there wasn't anything in there that indicated that I could get a 160 or a 132 ion out of those in a mass spectrometer. I also looked in an index of mass spectra that I have and didn't find anything in there that matches this particular pattern.
MR. BLASIER: Now, you can't say--since you haven't looked at all 11 million or however many organic compounds there are, you can't say whether there might not be some other compound out there that hasn't been looked at that might look like this, correct?
DR. RIEDERS: That's correct. That's always true. I've said that before. You can only work with what you know.
MR. BLASIER: And that's true with any kind of substance that you're looking for that you're examining with mass spectrometry, correct?
MS. CLARK: Objection. Leading.
THE COURT: Sustained. Sustained.
MR. BLASIER: Is that true with respect to any compound that you look for with mass spectrometry?
DR. RIEDERS: Yeah, and any test, any form of mass spectrometry. You can't give an absolute answer. You can not identify something to the exclusion of all other compounds unless you do it purely by faith alone.
MR. BLASIER: Now, we've been talking about tandem ms or ms/ms in this case. Why is it--why do you repeat ms and then repeat it again? What does that mean?
DR. RIEDERS: Well, the technique is a little bit different. I think I explained what ms is. I think maybe Roger Martz did too, about weighing a molecule, breaking it up like a diamond and then weighing the pieces. In ms/ms, what you do is, you put material into a mass spectrometer. It weighs it and then it takes preferably the whole molecule or the whole molecule with a charge on it, a hydrogen ion charge and filters it into another mass spectrometer alone all by its lonesome without all the other junk that's sitting back there. So you've isolated that particular ion. Then that second mass spectrometer cuts that into what called daughter ions, into two pieces, perhaps three pieces. It's called by--by colliding with gas molecules, that's how it's done, gently, and then it weighs those pieces. So that is the second mass spectrometer. The better way is to take it into the second mass spectrometer, then break it up and then again filter out one of the ions into a third mass spectrometer for measurement. That's what you have when you have MS MS MS. You can continue that virtually ad infinitum, not with his instrument, but with some instrument. So you can go to the fifth mass spectrometer.
MR. BLASIER: Is it accurate to describe then that the first ms is looking for the parent ion, the 293, and the second ms looks at the daughter ions?
DR. RIEDERS: The first ms looks at the parent ion. The second ms takes that parent ion purely and breaks it up, and the third ms measures it.
MR. BLASIER: Now, are tests done to determine identification of substances using just ms?
DR. RIEDERS: Of course. They've been done for a long time. As a matter of fact, that is a wide spread test. This technique is relatively a simple one.
MR. BLASIER: When ms was designed, did we also have ms/ms or did that come along later?
DR. RIEDERS: Afterward. Not terribly long. In research form, but it came afterwards.
MR. BLASIER: Is it accurate to say that testing is done all the time where identifications of substances are made based on just ms?
DR. RIEDERS: Yes.
(Discussion held off the record between Defense attorneys.)
MR. BLASIER: Doctor, after being cross-examined and hearing Agent Martz' testimony, do you stand by your opinion that what was found on the back gate and the sock to a reasonable degree of scientific certainty was EDTA?
DR. RIEDERS: Yes.
MR. BLASIER: Do you stand by your opinion that the probable source for that EDTA was a purple top tube?
MS. CLARK: Objection. That misstates, conclusion.
THE COURT: Overruled.
DR. RIEDERS: Probably, yes.
MR. BLASIER: Do you know of any other possible source for that amount of EDTA?
DR. RIEDERS: Yes, theoretically.
MR. BLASIER: Any other source that you would expect to find in someone's human blood?
DR. RIEDERS: If they've been treated with intravenous calcium EDTA within the last eight hours for lead poisoning, yes.
MR. BLASIER: Other than that?
DR. RIEDERS: Or for other forms of treatment, diagnostic or treatment with disodium calcium EDTA.
MR. BLASIER: How about after just a normal diet?
DR. RIEDERS: No way.
MR. BLASIER: That's all I have.
THE COURT: Miss Clark.
RECROSS-EXAMINATION BY MS. CLARK
MS. CLARK: You mean the readings that Agent Martz obtained in his unpreserved blood, there is no way that those could result from him having a normal diet in which he ingested food that contained the preservative EDTA?
DR. RIEDERS: In my opinion, that's correct. It's no way.
MS. CLARK: So the result that he got is not there, it's unreal; is that right?
DR. RIEDERS: No. I--
MR. BLASIER: Objection. Mischaracterizes his testimony.
THE COURT: Overruled.
DR. RIEDERS: No. I didn't say the result that he got isn't there. It's there on paper. How it got there is the question or what's its source.
MS. CLARK: What are you trying to infer, Dr. Rieders? Are you trying to tell us that you think he added EDTA to his own blood?
DR. RIEDERS: I didn't say that. You did. I said--I don't know what the source is. It could be contamination, it could be a mix up. I seriously doubt that he would add it to it. He's an honest man, not a crook. But any number of ways that this can happen.
MS. CLARK: And then one way that you've just mentioned was through the possible presence of EDTA in a red top tube. Is that one way you've just mentioned?
DR. RIEDERS: That's a possibility. He never checked it out, so it's not ruled out. So that's a possibility.
MS. CLARK: Well, Dr. Rieders, did you ever check it out? Did you ever run any tests on a red top tube to determine whether there were trace amounts of EDTA contained in it?
MR. BLASIER: Objection. Asked and answered.
THE COURT: Sustained.
MS. CLARK: On a red top tube?
THE COURT: He asked if he did any experiments whatsoever, and the answer was no.
MS. CLARK: Doctor, you indicated--you talked a little bit about concentration with counsel. If EDTA is assumed to be present in the evidence and in the reference tube blood and you wanted to prove that the blood on the gate and the sock came from preserved blood as a scientist, wouldn't it be logical to conclude that the concentration should be the same in the evidence and in the reference blood?
DR. RIEDERS: If they are both fresh, yes. If one has been sitting on a fence for various periods of time, wouldn't have to be the same. What I was mainly saying is that you have no clue as to what the concentration is because you never measured how much blood you have.
MS. CLARK: All right. But then you could as a scientist test that hypothesis by doing tests to quantify precisely the amount of blood so you could determine exactly whether the concentration was the same; could you not?
MR. BLASIER: Objection. Argumentative, asked and answered.
THE COURT: Overruled.
DR. RIEDERS: Yes. I said that's what you can do. In my direct, I even said how to do it.
MS. CLARK: Now, Dr. Rieders, if you as a scientist wanted to affirmatively prove the presence of EDTA in evidence stains, you could conduct exactly that form of testing; could you not?
DR. RIEDERS: Well, I could conduct it. If I wanted to prove exactly or approximately, of course, one can do those tests. That's why I proposed them. They are not tests that can't be done.
MS. CLARK: And did you propose that such testing be done on the evidence in this case to counsel, Defense counsel?
MR. BLASIER: Objection.
THE COURT: Sustained.
MS. CLARK: All right. Dr. Rieders, you indicated that you relied on Dr. Henion's report with respect to what tissues he tested; is that correct?
DR. RIEDERS: I'm sorry. Where are we now?
MS. CLARK: We're in Sconce.
DR. RIEDERS: Oh. Yeah. I relied on his report as to what tissues he tested, sure, because that's what he reported as having received and tested. I also relied on Dr. Lovell's letter stating what tissues he sent.
MS. CLARK: All right. And then it's your position that based on your review of that report, that he never tested the tissues taken from the 1985 autopsy; is that correct?
DR. RIEDERS: Yes. That's correct. He says so himself.
MS. CLARK: Would you change your opinion, Dr. Rieders, if I were to show you a videotape of autopsy tissues being delivered to the Defense toxicologist, Brian Finkle?
MR. BLASIER: Objection.
DR. RIEDERS: No.
MR. BLASIER: Objection.
DR. RIEDERS: What's that got to do with it?
MR. BLASIER: Your Honor, may we approach?
THE COURT: Nope. He said no, it wouldn't change his opinion. Proceed.
MS. CLARK: In other words, if you were to be shown--
THE COURT: No. Sidebar with the court reporter.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar. What do you got?
MS. CLARK: Videotape.
THE COURT: Of what?
MS. CLARK: Autopsy tissues of 1995 being put into a jar and given to Dr. Brian Finkle documented on the film.
THE COURT: Going from Finkle to where?
MS. CLARK: Dr. Henion. Transported them, hand-delivered them. It's shown in his report that tissues were hand-delivered by Dr. Finkle to Dr. Henion.
MR. BLASIER: I thought we had a rule before you can refer to a videotape, that we be allowed to see it so we can agree. We're told autopsy tissues went from one guy to the next. That's supposed to disprove--basically in Henion's report, Henion's report says he tested these things. He can't say anything about what he tested or what his results were. That's what it said.
MS. CLARK: No, counsel.
THE COURT: What does it say?
MS. CLARK: I looked at it. That's why I objected in the manner I did. I don't know what--I think the Court should see it.
THE COURT: Let's see it.
MS. CLARK: Also, it indicates in his report--wait, Bob. Don't go.
MR. COCHRAN: May I get it?
THE COURT: Yes.
MS. CLARK: He indicates in his report he received tissues from Dr. Finkle that were hand-delivered. These are the tissues that are shown in the videotape from the `85 autopsy. Brian Finkle is in the film as is Dr. Lovell, who recovers them, makes the split and it shows in his report that he analyzed those tissues.
MR. BLASIER: I have Dr. Lovell's report describing what was given to him also. May I get that?
MR. DARDEN: What's the point in having a sidebar if the guy is going to talk in front of the jury about what's being handled over here?
THE COURT: What am I looking for in this?
MS. CLARK: Let me show you, your Honor. Over here.
THE COURT: Page 5?
MS. CLARK: Page 5. That's his legend. You see our numbers here, tissue samples provided from Dr. Rieders via federal express and then this is Dr. Henion's report.
THE COURT: Does--
MS. CLARK: I believe that the page--
THE COURT: What does "TW" mean?
MS. CLARK: Tennessee waters was the victim in this case. I think those are the explanations. I'm not sure, your Honor. I do know that--okay. Dr. Panner, Strong Memorial Hospital.
THE COURT: When was the exhumation done?
MS. CLARK: `91.
THE COURT: Says 3-28-91. That's what they're talking about here.
MS. CLARK: No. They have a different--that's a different report.
THE COURT: All right.
(The following proceedings were held in open court:)
THE COURT: Ladies and gentlemen, would you just step back real quickly in the jury room. I need to take a look at something.
(The following proceedings were held in open court, out of the presence of the jury:)
MS. CLARK: May I ask that the witness be excluded?
THE COURT: Well, before we do that, you--the report of Dr. Henion that you've given to me and directed my attention to page 5, sample 001 and 007, that appears to be from the `91 exhumation, correct?
MS. CLARK: Yes. Yes. That indicates that some of the tissues delivered--and there's no dispute that exhumation tissues were in fact delivered to Dr. Henion. There's no question.
MR. BLASIER: Those were his own samples.
MS. CLARK: No, it's not.
MR. BLASIER: In the report. That's what's in the report.
THE COURT: All right. In the report, is there reference to any samples from the original autopsy?
MS. CLARK: In whose report? In Dr. Henion's report?
THE COURT: Yes. I mean, what is the basis for you asking these questions?
MS. CLARK: Because on redirect, the witness was asked--
THE COURT: No, no, no. I'm asking, within the reports that you have, where is the contradiction?
MS. CLARK: No. That wasn't the point, your Honor. Counsel asked Dr. Rieders whether--and I think the witness ought to be excluded for this. I really do. Counsel asked Dr. Rieders whether reading the report refreshed his recollection as to whether Dr. Henion got `85 autopsy samples or not. He indicated yes. He indicated that, looking at the report, he was able to confirm the fact that Dr. Henion never got `85 autopsy samples, and that's what I asked him.
THE COURT: All right.
MS. CLARK: I went back over that, I said, how does this report indicate to you that he did not get the `85 autopsy samples.
THE COURT: And that's what you propose to ask at this point?
MS. CLARK: No. I already--I went--let me go back.
THE COURT: All right. You asked him what tissues were tested.
MS. CLARK: Here's my question: "Then it's your position that based on your review of that report, that he never tested the issues taken from 1985 autopsy; is that correct? "Answer: Yes, that's correct. He says so himself." Then I asked: "Would you change your opinion?" So it is Dr. Rieders' testimony that the review of this report confirms his opinion that Dr. Henion never got `85 autopsy samples.
MR. BLASIER: Your Honor, he's testi--he wasn't there when this was done. He has Dr. Henion's report. Dr. Henion's report said, "I got this stuff in 1991." Dr. Lovell's report says, "I was there when we got it from the mausoleum. It looked like mud." This is completely improper. I tried to raise this initially. I think it's--the whole line of questioning is improper. I ask that the jury be admonished to disregard everything about scone as being completely irrelevant and done in bad faith. There's nothing in this report indicating that he tested anything other than what Dr. Rieders said he tested. What Dr. Rieders said is based on Henion's report. That's all he has.
MS. CLARK: You know, my God, this is reality standing on its head. It's absolutely clear if you look at the videotape, your Honor--we have all the memos from Brian Finkle. We have all the letters that indicate that he absolutely did get and test `85 autopsy tissues. There's no question about this. I don't think--perhaps counsel doesn't know.
THE COURT: That he Henion or he Finkle?
MS. CLARK: He Finkle and he Henion, both. Finkle hand-delivered samples to Dr. Henion, and some of the samples that he hand-delivered were in fact `85 autopsy tissues that were given to him--
THE COURT: All right. Where do we have that document?
MS. CLARK: Well, where do we have that--you're talking about Henion's report?
THE COURT: Anywhere.
MS. CLARK: I'm not the one who asserted that this report was able--was competent and material to refresh this witness' recollection. That's what counsel used. I contend otherwise and that's why I wanted to show him the videotape, because there's no way from this report that he could possibly have reaffirmed his position that there were no autopsy tissues given to him, because the manner in which it's documented here, it's insufficient for him to say one way or another. And yet he has. He has said that based on this report, he can say he never got autopsy tissues from 1985. That--he can't do that. And he's formed an opinion based on something he cannot--that doesn't give him the information he claims it does. I have something that will give him that information, and I want to confront the witness with it. And I think that on cross-examination, it's certainly fair game to do so.
THE COURT: Wait. All right. You're saying that he's used something to refresh his recollection that you say is an insufficient basis for him to have refreshed his recollection. Therefore, you're entitled to cross-examine on some videotape? Is that what you're saying?
MS. CLARK: No. I'm challenging the basis of his opinion. I'm challenging--first of all, the opinion itself, but also the basis of it. No. 1, the report can't possibly be used to--as a basis for him to conclude that there was no `85 autopsy tissue given. Secondly, would it change his opinion--and certainly, I'm entitled to do that, your Honor, with an expert. "Would it change your opinion, doctor, if you were to see this videotape?" I--
THE COURT: Which does what?
MS. CLARK: Which shows exactly--which shows the tissues being cut and split to give to Dr. Finkle who was working with Dr. Henion on this case for the Defense. This is a one-minute videotape.
MR. BLASIER: 1, I don't think that proves anything. Let's assume it's true. Dr. Rieders wasn't there for this. It can't refresh his recollection. It's not in Dr. Henion's report. Dr. Rieders has testified that that's what he has, is Henion's report, which says, "This is what I tested and it's from the `91 exhumation." Nothing in there about testing anything else. It's reasonable for him to say this is his report, this is what he tested, so he probably didn't test anything else. That's not impeachment.
MS. CLARK: Your Honor, this witness has stated in categoric terms very definitely that the 1985 autopsy tissues were never sent for Dr. Henion to test. He has made--he's been very emphatic in his testimony about that, your Honor. You know, and now we're going to back pedal a little bit and try and pretend that didn't happen? It did happen, and we have the right to challenge that opinion because it's fundamental to the discrepancy in their results, and Dr. Rieders knows that.
MR. BLASIER: I would like to make a discovery request on anything they have that shows that Dr. Henion in a report tested something other than the report we have. If there's another report, we should be entitled to see it, as well as anything that shows that Dr. Rieders would know something that Dr. Henion did that's not in his report.
MS. CLARK: And, your Honor, let me point out something in Dr. Henion's report as well. There is a listing--you can see in the key where it talks about the tissue samples r--the tissue samples provided from Dr. Rieders via federal express. Right? That's on page 5.
THE COURT: Page 5.
MS. CLARK: At the bottom of the page, it says samples 1 to 7 delivered by federal express from Dr. Rieders' laboratory, okay?
THE COURT: Wait, wait. At the bottom?
MS. CLARK: At the very bottom.
THE COURT: On page five.
MS. CLARK: Yes. Samples 001 to 007.
THE COURT: All right. My copy here says samples 001 to 007 hand-delivered by Dr. Finkle.
MS. CLARK: We have different reports.
THE COURT: Well, maybe that's why I'm having a problem here.
MS. CLARK: Yeah. Let me show the Court. At the bottom, it shows 001 to 007 as specimens sent from Dr. Rieders' laboratory via federal express. If you will look at the listings above that on page 5, your Honor, you will see that there are R008 008 through R0016, which indicate other samples recovered from Dr. Rieders. And I really think that the witness should be excluded for this, but--
THE COURT: All right. Looking at page 5 of what you've just given to me, would you direct my attention where it talks about 001 to 007 being `85 autopsy samples?
MS. CLARK: I'm not saying that it does. It's actually R008 through R0016. You see, what occurred is that Dr. Henion got a split of Dr. Rieders' tissues. He also got, however, autopsy tissues that had been maintained by the Coroner at the time of the exhumation. In other words, in `85, there were tissues removed from the body. Some were kept at the Coroner's office, some were given to randy Basil, who later forwarded them to Dr. Rieders. The tissues that were maintained in a preservative at the Coroner's lab, Dr. Finkle was given a split of those and--by Dr. Lovell, and that's what's documented in the videotape. So--and he took those to Dr. Henion. And in addition to that, some of the frozen tissue samples that Dr. Rieders had from the `85 autopsy were also forwarded to Dr. Henion. And Dr. Finkle and Dr. Henion have records that will verify that. I also have a letter to Dr. Henion from Roger John Diamond, in which it indicates that the Defense wishes to retest the same materials which the Prosecution expert tested. And of course, that makes sense because how are they going to convince the People to dismiss a case unless they make sure that they do test the same tissues? Otherwise, the People have the very argument that Dr. Rieders is trying to proffer, which we know is untrue.
THE COURT: All right. Dr. Rieders, why don't you step out of the courtroom, please.
DR. RIEDERS: Sir?
THE COURT: Why don't you step out of the courtroom, please.
DR. RIEDERS: Sure.
THE COURT: Thank you.
(The witness complies.)
THE COURT: Well, we've got two different reports here. That's for sure.
MR. BLASIER: Your Honor, may we be provided with copies of both? That's our only copy.
THE COURT: All right. Let me see this videotape.
(At 3:30 P.M., a videotape was played.)
MS. CLARK: That's Dr. Lovell.
(At 3:35 P.M., the playing of the videotape was concluded.)
MS. CLARK: Actually, the first minute is sufficient because it's identified as being narrated. We can freeze frame on to the jar itself that shows the Coroner's number and the date of the autopsy, 1985, so that it's clear that on that jar there are `85 autopsy tissues. We don't need that last part.
MR. BLASIER: It's not proper authentication. Let's assume it was however. He's already said this is not going to refresh his memory about anything because he wasn't there. It would be completely improper to show it in front of the jury to this witness who's already said his memory is not going to be refreshed. If we want to bring him in, let him watch this, then you can ask him again. But he's already said it's not going to refresh his memory. I still want to see Dr. Henion's report of testing on those tissue samples. I've never seen it. I don't think it's in the--it's certainly not in the one I had. I don't think it's in hers.
MS. CLARK: It is in mine, your Honor. The question that--
THE COURT: All right. We'll take a recess. You can show Dr. Rieders the tape. Show counsel where Dr. Henion mentions testing the `85 autopsy--
MS. CLARK: But, your Honor, he doesn't say it's `85 autopsy tissues. He does it by number.
THE COURT: I understand that. I understand that.
MS. CLARK: And I'm not asking to refresh his memory. I'm asking to show him something before the jury to see whether or not it will change his opinion any, and I cannot believe--
THE COURT: Well, I got to tell you, this is an incredible amount of sidetracking on a collateral issue on a non-case. All right. We'll take 15.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Miss Clark, Mr. Blasier, have you had the opportunity to compare your reports?
MS. CLARK: Yes, your Honor. I have determined what the source of the discrepancy is. The Defense and the Prosecution joined in the desire to--I thought the witness was excluded.
THE COURT: He is.
MR. BLASIER: Dr. Rieders, please wait outside.
(The witness exits the courtroom.)
THE COURT: Miss Clark.
MS. CLARK: Yes, your Honor. In that case, the Defense and the Prosecution both sought to retest the tissue, obviously, the Defense desiring to present the kind of argument proffered by Dr. Rieders, that their tissue was simply older, and that explains the lack of oleander. The Defense requested they retest the same tissue. The Prosecution also requested the same retesting, and they independently submitted samples to Dr. Henion. And so you have two separate reports generated, one to the Defense, one to the Prosecution, and each of them submitted their own samples. Now, Dr. Rieders--I propose two things. What you can see in one of the reports is that there were samples delivered from--by Dr. Rieders via federal express from his lab. In the other report, you have Dr. Finkle, the difference being that Dr. Finkle hand-carried some of the samples and Dr. Rieders via federal express mailed some of the samples, and one went to the Prosecution and one went to the--one came from the Prosecution, one came from the Defense. Hence, the difference in the listing of samples tested in the two different reports. That's that. Dr. Rieders has--I propose to show him a bill which indicates that there was a shipment of specimens to Dr. Henion and that was--this bill is dated 4-19-91. He's billing for the expense of shipment of those specimens. We--because the billing entry is ambiguous, we asked that Mr. Blasier have Dr. Rieders bring in his file with a chain of custody documents, and we were told to pound sand. So we are now going to request of Dr. Rieders that he examine his file for the chain of custody documents to indicate the tissues samples that he did surrender. We do know that he did surrender frozen tissue samples that he had from the `85 autopsy to Dr. Henion in addition to which Dr. Lovell gave--
THE COURT: Why don't you just ask him that?
MS. CLARK: I will, but I believe he doesn't have them.
THE COURT: No. Why don't you just ask him, "Did you give the `85 samples that you had still in your custody to Dr. Henion for testing with regards to this case?"
MS. CLARK: I believe that I did, your Honor. He said he offered it, but it was rejected. That was his testimony.
THE COURT: All right. So what is this bill going to show us?
MS. CLARK: Well, he shipped tissues. It may impeach him. He shipped tissues to Dr. Henion.
THE COURT: How do we know it's the `85 tissue?
MS. CLARK: Why would you ship only the exhumation tissues if you have both in your possession? I mean, it doesn't make any logical sense that he would do that, and especially when we have letters from Roger Diamond, the Defense attorney, indicating that he desired to retest the same tissues for the obvious logical reason that if he doesn't, the People will not be convinced to dismiss the case, which is in fact what happened. So that's why--there were two ways that Dr. Henion got the `85 autopsy samples from a very simple and broad base point of view, your Honor. This witness has attempted to represent to the jury that the only reason there were negative results by Dr. Henion is because he never tested `85 autopsy tissues whether they came from him or someone else. He has denied categorically based on his review of everything he's seen that Dr. Henion ever tested such tissues from the `85 autopsy. A very simple impeachment method is to say, "Look at this. Does that change your opinion?"
THE COURT: Did you show it to him over the--
MS. CLARK: Yes, I did.
THE COURT: And?
MR. BLASIER: During the break?
THE COURT: During the break?
MS. CLARK: The video?
THE COURT: Yes.
MS. CLARK: Yes. The video was shown to him.
MR. BLASIER: He said it didn't--
MS. CLARK: Well, it didn't refresh his recollection. Of course it wouldn't refresh his recollection. That's not why it's being shown. It's being shown to see if it will change his opinion as to whether Dr. Henion received `85 autopsy tissues for testing. His answer either way is going to be illustrative and it's one question.
THE COURT: And you're going to bring in Dr. Henion at some point to say, "I tested the `85 autopsy stuff and it's included in my report as sample r something."
MS. CLARK: That's right. That's right. Actually two different autopsy samples, one from Dr. Rieders and one from the cutting made by Dr. Lovell in 1991.
THE COURT: All right. So haven't you already asked and established the negative answers?
MS. CLARK: No. Not with respect to this. And I think it is germaine to--you know, this is cross-examination, and the witness' refusal to accept an obvious fact in order to change his opinion, or if he does, to change his opinion is clearly relevant to his credibility. It's one question and a one-minute video to demonstrate graphically that it doesn't matter what this witness is shown. He's never going to change his opinion. And I think that's highly relevant to his competence and his credibility which the jury has to assess.
THE COURT: Mr. Blasier.
MR. BLASIER: Your Honor, this is so collateral, it's incredible. Now I have two reports that look the same on the surface, but they're different. And the reason they're different is because some tests are included in one that aren't included in the other. The one that Dr. Rieders has is only--he got one report. He didn't get both reports. This is outrageous. I think--if we're going to go into this at all, he needs an opportunity to at least see the second report that was not sent to him. This is so confusing. I can't tell what's in one and what's in the other now. They look the same when you look at them, but when you start comparing samples, they're different.
MS. CLARK: Well, they're the same conclusion.
MR. BLASIER: Yeah. The same conclusion is that the absence of--"The absence of these analytes at the time of the analysis does not mean they were not present at an earlier time. Little is known about the chemical enzymatic stability of these substances over time under the conditions of storage experienced by these samples." So regardless of what's included in both of these reports, he comes to the same conclusion. That is, he can't say that Rieders was wrong.
MS. CLARK: I disagree with counsel's characterization. There is a qualification issued by Dr. Henion, but we come to a larger issue then really. Had Dr. Rieders known of the appropriate most sophisticated method of testing back when he did the testing in 1988, it would have been better confirmed or refuted that the presence of oleandrin was there--that there was oleandrin present in the tissues. His failure to know of the most appropriate testing--
THE COURT: Well, we're already talked about that.
MS. CLARK: Okay. Nevertheless, all I'm asking--
THE COURT: The only issue then here is whether or not Dr. Henion tested the `85 autopsy specimens. That's correct. You've already asked him that. He said to his knowledge, no, he didn't, correct?
MS. CLARK: He's done more than to say to his knowledge, no. He is saying no categorically he did not.
THE COURT: All right. And you're going to bring in Dr. Henion?
MS. CLARK: Yes.
THE COURT: Okay.
MS. CLARK: So the Court--you know, the People have some very graphic evidence that takes no time to confront the witness with to see if it will change his opinion.
THE COURT: No. Watching--that's an incredibly--that's probably one of the worse videotapes I've ever seen. I mean, I've seen nine-year old kids take better videotapes than that. I mean, it's going all over the place, you can't tell what it is, it doesn't focus in on a date and time.
MS. CLARK: Yes. It can be freeze-framed to show that this is autopsy tissue and it's narrated. Your Honor, I didn't make this videotape obviously.
THE COURT: But see, this is such a collateral issue. If you've established already that he says he didn't have the `85 autopsy, that the `85 autopsy samples were not considered by Dr. Henion and Dr. Henion comes in and says, "Yes, I did have the `85, I came to a contrary conclusion than Dr. Rieders, I disagree with, you know, his professional opinion," then that's the point. And you don't need to show this--and if it doesn't--if you've shown it to him and it doesn't refresh his recollection, then there's no basis to show it. I'll allow you some leeway--and I have to tell you, this is an incredibly confused situation to now have two of these technical reports which appear on the surface to be identical, but if you look at them carefully, they talk about different things at different points and different times. Maybe it's because I'm tired and it's been a long day, but I'm completely confused reading these two reports, because they're not the same reports and they say different things. So at this point, you can ask--just restate that--to set where we are, that Henion--in his opinion, Henion didn't test the `85 samples. That's the end of the inquiry. I find the videotape--since Dr. Rieders has already seen it, doesn't refresh his recollection as to what it is, I'll sustain the objection at this time.
MS. CLARK: May I show him his bill?
THE COURT: You can see if that refreshes his recollection. All right. Let's have the jury, please.
MR. BLASIER: Your Honor, I would ask it be shown to him without a full description to the jury of what it is.
THE COURT: No. I don't think that's appropriate because the jury needs to know what it is that's being presented, if it does or does not refresh his recollection. "Here's a bill. Do you recognize it? Does that refresh your recollection as to what it is?" You can do that.
MS. CLARK: What about using the report?
THE COURT: No. I think we've already established that. You've asked the question.
MS. CLARK: No. That was the Defense report. This is the other report.
THE COURT: All right. You can ask if he's seen that other report.
(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. Miss Clark.
MS. CLARK: I have a document, your Honor, I would ask be marked People's next in order, 586.
THE COURT: 587 I believe.
MS. CLARK: 587.
(Peo's 587 for id = document)
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MS. CLARK: Okay. I'm showing you what's now been marked People's 587. Do you recognize the letterhead?
DR. RIEDERS: Yes.
MS. CLARK: That's your letterhead, sir?
DR. RIEDERS: The company letterhead.
MS. CLARK: And let's see--
MS. CLARK: If I may.
THE COURT: No. No.
MS. CLARK: Well, before the foundation.
MS. CLARK: Is this a bill that you submitted to the Prosecution for your work in the Sconce case, sir?
DR. RIEDERS: I haven't looked at it. Let me look at it. I just looked at the letterhead.
(Brief pause.)
DR. RIEDERS: That's a bill. Yes.
MS. CLARK: Is this the bill that you presented to the Prosecution for your work in the Sconce case?
DR. RIEDERS: I really don't know. The company did evidently. I didn't.
MS. CLARK: It says, "To Mr. Harvey Giss, Deputy District Attorney"; is that correct?
DR. RIEDERS: Right.
MS. CLARK: And it says, "For professional services--"
DR. RIEDERS: Right.
MS. CLARK: "--re Timothy Waters, David Sconce, accused," correct?
MR. BLASIER: Objection. Hearsay. Objection.
THE COURT: Overruled.
DR. RIEDERS: Right. That's what it says.
MS. CLARK: All right. Does that seem to be then the bill for the services you rendered on the Sconce case to the Prosecution?
DR. RIEDERS: Yes.
MS. CLARK: Now, dropping down to the last paragraph where it is circled in black, do you see a reference there to the, "Examination, securing, storage and shipment to Dr. Henion"?
DR. RIEDERS: Yes.
MS. CLARK: Does that refresh your recollection, sir--
DR. RIEDERS: Absolutely not.
MS. CLARK: --as to what tissue samples you sent to Dr. Henion?
DR. RIEDERS: Absolutely not. The only thing that I can surmise is that the samples that Dr. Lovell sent to me, I forwarded to Jack Henion. But I have no recollection of this at all. It may have been done by my secretary for all I know.
MS. CLARK: Then is it your testimony that this is a reference to the exhumation tissues that were removed from the body of 1991?
MR. BLASIER: Objection. Misstates his testimony.
THE COURT: Overruled.
DR. RIEDERS: I have no idea what this is. I think that it could be that Dr. Lovell shipped to me his half and I shipped it on to Henion or my secretary did. But--
MS. CLARK: Whose half of what, sir?
DR. RIEDERS: Whatever was taken at that autopsy.
MS. CLARK: At the autopsy in `91?
DR. RIEDERS: At the second autopsy in `91, yeah.
MS. CLARK: But in your opinion, this does not reflect the shipment by you of tissues that you had from the `85 autopsy?
DR. RIEDERS: Absolutely not. I was strictly informed not to ship anything of my own specimen. I think I still have it in the freezer.
MS. CLARK: Doctor, were you--was it asked of you pursuant to a letter written by the Prosecution in this case to bring with you to court today your chain of custody documents that reflected the movement of the tissues you had from the `85 autopsy?
MR. BLASIER: Objection. Irrelevant.
THE COURT: Sustained.
MS. CLARK: Do you have in your possession today a copy of your chain of custody documents that indicate the movement of the tissues that you received from the `85 autopsy on timothy waters?
DR. RIEDERS: Up to a point, yes, up to July `88. Not July `88. Yeah. July `88.
MS. CLARK: And July `88--I'm sorry?
DR. RIEDERS: That's on one of the sheets, yeah.
MS. CLARK: July `88 is when you concluded your testing; is that right?
DR. RIEDERS: Yeah. Just about. After that, they stayed in the freezer. That's all I have.
MS. CLARK: So you have no documents to indicate what occurred to those tissues after you completed your testing?
DR. RIEDERS: Yeah. They went into the freezer and stayed there. I think they're still in there.
MS. CLARK: That's your testimony?
DR. RIEDERS: They went into the freezer and stayed--yeah. I took them out when Mr. Diamond came to show them to him. He wanted to see them. That's all I recall. After that, I don't recall ever getting back to them except that when we moved the freezer, I saw them still in there, which was maybe months later.
MS. CLARK: Do you recall Dr. Brian Finkle, the Defense toxicologist, sir, approaching you to get a split of your autopsy tissues?
DR. RIEDERS: In Anaheim, yes.
MS. CLARK: And do you recall--
DR. RIEDERS: Not approaching me. I approached him. He approached me to look at my tests, and I told him, "Do you want some of what I have?" That's what.
MS. CLARK: Sir, do you recall--do you recall him asking you for a split of your tissues and you refusing to give them because you were precluded under Pennsylvania law? Do you recall that, sir?
DR. RIEDERS: Absolutely not. That's untrue.
MS. CLARK: And so if he so testified, he would be mistaken. Is that your testimony?
DR. RIEDERS: I said it's untrue. But if he so testified, then he's very much mistaken.
MS. CLARK: Let me show you--
MS. CLARK: I'd like to mark People's 588, your Honor, another report by Dr. Henion entitled "Final report from the analysis of T. Waters' tissue samples submitted by the Prosecution, People versus Sconce."
THE COURT: So marked.
(Peo's 588 for id = report)
MS. CLARK: Directing your attention, sir, to page 5 in which it indicates tissue samples provided--
MR. BLASIER: Your Honor, I'm going to object. It's hearsay.
THE COURT: It is at this point. Foundation, counsel. Are you using this to refresh his recollection?
MS. CLARK: Yes.
THE COURT: All right. Why don't you review that briefly, doctor.
MS. CLARK: I'm asking you to review the legend.
MR. BLASIER: I'd ask him to review the whole thing.
DR. RIEDERS: May I look at the whole--
MS. CLARK: Sure.
THE COURT: While he's doing that, let me see counsel at the sidebar without the reporter.
(A conference was held at the bench, not reported.)
DR. RIEDERS: All right. I've reviewed it.
MS. CLARK: I'm sorry?
DR. RIEDERS: Yes, I've reviewed it.
MS. CLARK: All right. Do you see your name mentioned?
DR. RIEDERS: Yes.
MS. CLARK: Does that help to refresh your memory as to whether or not you mailed or sent Dr. Henion some of your 1989 autopsy tissues?
DR. RIEDERS: No, it does not. If I may see my own report that I gave you a while before. This is different from my report. This is a chain report.
MS. CLARK: No. Sir, are you aware that there were two reports prepared by Dr. Henion in that case, one for the Defense and one for the Prosecution? Did you know that?
DR. RIEDERS: No, I didn't know that. Well, how would I know that? I got my report from Harvey Giss. That's all I know.
MS. CLARK: Uh-huh. Do you see an entry on your bill that's still in front of you on the witness stand, sir, that indicates that you had conversations with the Coroner, Dr. Lovell, pre and post exhumation?
DR. RIEDERS: Yes, I see that.
MS. CLARK: During the course of those conversations, you were informed, were you not, that both the Prosecution and the Defense were requesting retesting by Dr. Henion?
MR. BLASIER: Objection. Hearsay.
THE COURT: Sustained.
MS. CLARK: Did you discuss with Dr. Lovell the reason for the exhumation in 1991?
MR. BLASIER: Objection. Hearsay.
THE COURT: Overruled.
DR. RIEDERS: As I recall, I told him what I understood was the reason for all of this taking place. Yes.
MS. CLARK: And what did you understand was the reason for all this taking place?
MR. BLASIER: Objection. Irrelevant.
THE COURT: Sustained.
MS. CLARK: All right, sir. You've indicated that you can not identify any compound at any time--we're done with that, sir. You indicated that you could not identify any compound at any time to the exclusion of all others; is that correct?
DR. RIEDERS: In my opinion, nobody can and I certainly can't. I'd like to meet the one who can.
MS. CLARK: And you indicated that in order to do that, it requires faith. Is that what you just said?
DR. RIEDERS: Require what?
MS. CLARK: Faith.
DR. RIEDERS: Well, you can say you did and that's an article of faith, but it's not an article of science because you can only exclude it if you compare it with all other compounds in existence, which includes the ones we don't even know. So it's absurd.
MS. CLARK: And so you have testified in this case that although you can not say that the substance found in the gate and the sock are EDTA from preserved blood to the exclusion of all other compounds, you have indicated that in order to say that, it would be an act of faith, correct?
MR. BLASIER: Objection. Asked and answered, argumentative.
THE COURT: Overruled.
DR. RIEDERS: Of course I can't. Nobody can.
MS. CLARK: And isn't that exactly what you said in the Sconce case when you claimed to have identified oleandrin?
MR. BLASIER: Objection. Argumentative.
THE COURT: Sustained.
MS. CLARK: Wasn't that the very language you used, sir, when you testified at the preliminary hearing in Sconce, that you had identified the presence of oleandrin which was later refuted by Dr. Henion?
MR. BLASIER: Objection. Irrelevant, misstates the testimony.
THE COURT: Sustained.
MS. CLARK: Nothing further.
MR. BLASIER: Doctor, thank you.
THE COURT: All right. Thank you very much, doctor. You may step down.
DR. RIEDERS: Thank you.
THE COURT: All right. Next witness.
MR. DARDEN: Mr. Goldberg is here on the 402 issue.
THE COURT: All right. Do we have the witness available? All right. Let me ask the jury to step back in the jury room for just a moment.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. The record should reflect the jury has withdrawn from the courtroom. All right. Next witness by the Defense is Michele Kestler, correct?
MR. NEUFELD: That's correct, your Honor.
THE COURT: All right. Mr. Goldberg, you want to state your objections at this point?
MR. GOLDBERG: Thank you. Your Honor, we filed a brief on Michele Kestler and we had a number of different objections to her testimony, one of which related to the news leaks. And I think that's been dispositively resolved now, although not a hundred percent sure, but I think so. And I think probably counsel understands that based on the Court's earlier rulings, they would not be allowed to inquire. But I think we need to make sure that that is their understanding for the record.
There were several other items that were also contained in the same brief. One was that the Defense should be precluded from inquiring of Michele Kestler as to the status of her husband as having a job with robbery-homicide. He works for robbery-homicide and he works in a division that investigates bank robberies. We argued in our brief that that's entirely irrelevant on the issue of this witness' bias or any other issue. The other item that we'd like to preclude is, we'd like to preclude any questioning to the effect of trying to imply or suggest that Michele Kestler has a bias to testify adversely to the Defendant because of any anger towards the Defense attorneys. I'm not positive that they intend to get into these areas, and perhaps if they make an offer of proof, we could discuss them at more length. Another item that we wanted to preclude was any impeachment on what we would regard to be a collateral issue. That is that at the griffin hearing in the Municipal Court, Michele Kestler testified that a certain item of evidence had been sent out for testing or she had said that it has already been sent out is the way she phrased it, and in fact, the item--excuse me. She said it's waiting to be sent out or it's ready to be sent out is I think the precise language, and in fact the item had already been sent out to Cellmark. It is not relevant to any issue in this proceeding. It is therefore collateral. And then finally, your Honor, on the issue of policy, if that is the only issue that counsel wishes to address--and I'm not sure that it is--we believe that there has been extensive testimony in this trial about the policy of the Los Angeles Police Department from a number of witnesses. Michele Kestler is not an expert in policy. She doesn't really have any more knowledge of it than any other witness from SID.
THE COURT: The lab director isn't an expert in policy?
MR. GOLDBERG: No, because the policy in terms of the Los Angeles Police Department policy manual is promulgated by uniformed police officers. And they spent a lot of time asking about the Los Angeles Police Department policy manual, and she did not write the manual, she did not participate in writing it. So we believe that under 352, it should be excluded. I have other arguments on many of these items, but I don't know exactly which ones, if any, Defense intends to get into.
So on those five issues, the husband, policy, the impeachment on the collateral issue involving her testimony at the Griffen hearing, any suggestion that she's angry at the Defense and the leak issue, all of those, they should be precluded from questioning her about. And I don't know whether they intend to question her at all if they can't get into the leak. So without hearing from the Defense, I don't have anything further to say.
THE COURT: All right. Is she immediately available by the way?
MR. GOLDBERG: She's upstairs.
THE COURT: All right. Why don't you have her--Mr. Fairtlough, is she on her way?
MR. FAIRTLOUGH: We sent a message up asking her to come down. She should be--
THE COURT: All right. Mr. Neufeld.
MR. NEUFELD: Sure.
THE COURT: Miss Kestler, would you wait outside, please. Thank you.
(The witness exited the courtroom.)
THE COURT: Mr. Neufeld.
MR. NEUFELD: There's actually a series of different issues here. I--actually, Mr. Goldman is raising additional objections now which were not contained in the initial papers on Miss Kestler, and I can address that as well. It's not a problem. Let me say this. The one objection that they made in their papers was to my inquiring about Miss--of Miss Kestler regarding the leak concerning the socks. There was no application to preclude me from asking her questions about the other leaks which turned out to be accurate and reliable. And I wanted to discuss that first because I think that's the most important issue, your Honor. I think the issue involving the husband is--I mean, they brought out the husband on cross examina--on redirect examination of their own witnesses. In fact, Mr. Goldberg is the lawyer himself who asked those questions. So the jury is already aware of the fact that Miss Kestler's husband works in robbery-homicide in the same unit as Vannatter and Lange. The fact that--also, the fact that Miss Kestler testified untruthfully in fact at a hearing on June 30th when she said that items 49 and 50 were ready to be sent out in the future and then acknowledged at the Griffen hearing later on that in fact she knew that they had been sent out on June 21st, nine days before she testified in this case I think frankly goes to her credibility, the fact that she was willing to lie under oath about that matter. So I think that that's plainly the kind of impeachment that is permissible under the evidence code, under any applicable case law in California that I'm aware of. But let's deal with the most important issue. The most important issue I think, your Honor, is the leaks. When Mr. Uelmen made his argument with respect to Tracie Savage and Mr. Bosco, he mentioned about the possibility that there was not adequate security for the information contained in these reports when they came to the Los Angeles Police Department. They may have been gossip and information may have gotten out to an unauthorized person on that way. We don't intend to make that argument with Miss Kestler on the witness stand. That is not our contention at this time. It is our contention, your Honor, that--and by the way, part of this comes from the 402 hearing where Miss Kestler testified. Part of the proffer comes from an interview that Mr. Scheck and I conducted with Miss Kestler before the city attorney at their offices a few weeks ago and part of it comes from other testimony of other witnesses in this case. And it is simply this. On--on or about September 12th, the SID unit, specifically Michele Kestler, received two reports. One is a Cellmark report dated June 8th--I'm sorry--dated September 8th, and the second is a report from the Federal Bureau of Investigation regarding the hair and fiber analysis results. Both those reports were received at about the same time. On September 14th and 15th, there were news stories in the Los Angeles times and other newspapers describing both the results from the Cellmark report on the Bundy blood drops, that it was consistent with Mr. Simpson, and secondly, also summarizing the FBI hair and fiber results saying that a hair found on Mr. Goldman's shirt was consistent with Mr. Simpson. That fact is in fact contained in that FBI report dated September 7th, 1995--`94, but received presumably at LAPD a few days thereafter. It should be noted by the way that the FBI report was not received by the Defense until I believe September 26th, which is about 11 days after it was reported in the Los Angeles times. So you have both of those reports arriving at SID addressed to Michele Kestler on or about the 12th. Could have been the 9th or the 10th for the FBI report, but it's very close in time. And the subject matter of both of those reports are included accurately in newspaper reports on the 14th and 15th of September. Michele Kestler testified that those reports were kept in a secure facility, they were kept under lock and key in Mr. Matheson's office in serology. That was elicited during the 402 hearing before your Honor I believe a week or two ago. And she limited--was very, very limited as to who had authorization to those reports because the case was being treated as a confidential case, and so the reports would not be kept in the normal routine with the serologist, but instead would be under lock and key in Mr. Matheson's office. Now, it is our argument that other individuals--perhaps not Michele Kestler, but if other individuals had unauthorized access to those reports, those same individuals could have unauthorized access to the items of evidence, and the nexus is simply this, your Honor. The socks were not kept under lock and key in the evidence control unit during any of the relevant time periods. Susan Brockbank testified that the socks were taken out of the evidence control unit on June 21st of 1994 and they were stored in serology--that's the same place where these reports were stored--from June 21st, 1994 until August 4th, 1994. So they were not kept in a secure--in a secure fashion. Indeed, the evidence will show, and I believe Miss Kestler will have to acknowledge it under oath, that the reports of the results were retained in a more secure way than the socks themselves were in this case. I intend to elicit that from her. I believe, your Honor, that we're allowed to argue the inference that if the reports themselves were not sufficiently secure as to prevent unauthorized access--because clearly there was unauthorized access because Michele Kestler has testified that neither she nor the individuals who were allowed to have access to this report communicated with the media and was responsible for this leak.
THE COURT: Well, refresh my recollection. But didn't she also testify that after receiving those results, she communicated those results with the investigating officers in the case?
MR. NEUFELD: Well, as to the FBI report, we don't know anything yet because I didn't go into that during the 402 hearing. So I don't know who it was communicated to or when it was communicated to. As to the Cellmark report, she didn't know when the--when or to which investigators the Cellmark information was communicated to. She did testify and we do know that it wasn't communicated to the District Attorney's office until the 16th of September, which was after it was disclosed and leaked to the news media. So we don't have a date on that. The one we have a date on as to who it was in fact released to was the September 21st leak. And what we know about that is that on September 20th, Greg Matheson concluded the conventional serological analysis on the ankle stains on the sock, that Michele Kestler learned of those results also on September 20th, that together, Michele Kestler and Greg Matheson then called up the District Attorney's office and communicated those results to Marcia Clark and Lisa Kahn. That same afternoon, she said she communicated that result to I believe it's Detective Lange, but I'm not positive. I know that she did say she communicated to some detective. So that's the circle of access with respect to the PGM results or that there was any blood analysis done on the socks. It's a very small circle at this point. And the next day, we know that certainly was disclosed that there was blood on the socks and that the genetic profile on that socks was consistent with Nicole--Nicole Brown Simpson. So even without the last leak of information, we have two instances where the Prosecution has asserted that they run a very secure facility. Remember, they made a big deal on the People's direct case out of suggesting to the jury that we have all these mechanisms to make sure items of evidence are not compromised and not tampered with, and I believe we can show that that security is a farce. And the reason we can show that security is a farce is, no. 1, the socks were not kept in the most secure manner at SID during the relevant time period, and, 2, that reports were kept in a more secure way during a critical time period, and nonetheless, it appears where one could infer from the obvious facts that the subject matter of those reports was leaked to the press before anyone else had access to it. One second.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I'm sorry. I thought I made it clear. Perhaps I didn't. That during the time that the socks had been removed from the evidence control unit, that is from June 21st to August 4th, they too were simply secured in the serology unit as opposed to the evidence control unit. That's the record in this case.
And the reports were also in the same unit according to Michele Kestler's testimony at the 402 hearing, the only difference being that the reports were kept under lock and key in a file cabinet in Mr. Matheson's office and the socks did not enjoy even that degree of security. So if we can show that unauthorized people had access to the reports, then I think that we are free to argue to the jury that if there was that kind of breach of security with regard to the reports, there could have also been a breach of security with regard to the socks. And I think that's relevant, and I don't even think that's a stretch in this instance given the very, very compelling facts we have as to the reliability of those different leaks, the FBI leak and the Cellmark leak.
THE COURT: Thank you, counsel. Mr. Goldberg.
MR. GOLDBERG: Your Honor, perhaps before counsel sits down, he might make an offer of proof as to whether there's anything else they tend to get into rather than the leak.
THE COURT: Well, that's what I just heard. So--
MR. GOLDBERG: But I'm just saying, so we can save time, because I don't want to address all these other issues again if counsel is going to represent to us now--
THE COURT: Counsel, that's the only one he addressed. So that's the only one I want to hear a response about.
MR. NEUFELD: I mentioned the other ones even before, your Honor, I think in passing, that I think we're entitled to examine her on her husband briefly because they went into it and I mentioned I believe her lack of truthfulness when she testified under oath at an earlier proceeding--
THE COURT: Counsel, I heard those. I heard that.
MR. GOLDBERG: But I also made argument about policy and whether she's angry at the Defense, and I'm just wondering whether counsel would offer whether he wants to get into any of these issues.
MR. NEUFELD: Your Honor, there's no question that the head of the SID can comment on policies at the SID as a director of that institution. There's also no question--
THE COURT: Do you feel compelled to make this argument?
MR. NEUFELD: No. I'm sorry.
MR. GOLDBERG: Well, I see the monster lives, your Honor. I just wanted to clarify how many monsters we were dealing with here. I don't know how many times we have to address this leak issue. We've done it now I think five times and I don't want to spend any longer on it because the Court has already ruled. I thought this was an absolute definitive dispositive ruling that finished it for all time, that--
THE COURT: No. That was only as far as Tracie Savage and Joe Bosco were concerned. So--
MR. GOLDBERG: Well, if the Court isn't going to allow the Defense to put on evidence as to these--what the news leak was, the Court has precluded evidence as to the airing of this information and is not going to allow them to put that on, then how are they going to put that piece of evidence in? How are they going to prove there was a news leak? The Court's already said that they can't do that, and then they can't put on the evidence to use--to prove that there was a news leak.
THE COURT: Well, in this case, they could try an Andrea Ford and ask her what she reported. But go ahead.
MR. GOLDBERG: Well, yeah. Maybe many other reporters. But I would assume if the Court is not going to allow these reporters to testify to it, the Court wouldn't allow some other reporter to testify to it. I hope I don't need to spend too much time on this, your Honor, because, you know, you've heard these arguments so many times yet over and over and over again. The Court has previously ruled that access to the information does not imply access to the evidence. That is a ruling that the Court made. We suggest that that ruling is correct. Our evidence was as to the security with respect to the evidence in this case, not with respect to any information of the reports in this case, and the two of them cannot be equated. Also, Michele Kestler--I mean, the only thing that makes her different from many of the other witnesses that have testified to this is that she doesn't have personal knowledge of any of these things as was elicited in the 402 hearing. She does not have personal knowledge of when any of the reports came in, because although they were addressed to her, everything was going through Greg Matheson, and she only knows about them because of what Greg Matheson told her. So if the Court just mechanistically applied the rules of evidence in this case that are set forth in the evidence code and did not allow witnesses to testify to hearsay or things to which they do not have personal knowledge, the only truthful answer that she can give when she's asked when did this report come in is, "I don't know," because she doesn't know other than from what Greg Matheson told her, which is hearsay. I'd also point out--and I'm not going to repeat many of the other arguments that we've previously made--that the preliminary DNA results that counsel was referring to on the 13th and the 14th--excuse me--the DNA results that counsel was referring to on the 13th and the 14th were preceded by preliminary results in the form of Cellmark's cocktail. And it is also possible that the press could have inferred what the results were going to be if they knew what those preliminary results were. So trying to figure out any logical connection between the source of the leaks and any issue that is at evidence in this case with respect to the integrity of the socks or any other piece of evidence requires us to go through so many hoops and requires us to make so many speculative inferences that I believe that the Court's ruling earlier today is correct, that it is irrelevant under evidence code section 350 and also should be inadmissible under evidence code section 352. Now, let me just address some of the other issues. First of all, the question of policy.
And by the way, we did address many of these things, although not all of them in our brief. Yes, Michele Kestler can testify to certain aspects of policy. But the question is, are they relevant and should they be excluded under 352 because we've already spent an enormous amount of time on policy. And I'd just like to quote from the Kaurish case, which we had in one of our earlier briefs that was filed I believe by Mr. Harmon and I quoted it in one of my briefs as well and the language there at 52 Cal. 3D, I'm quoting from page 693, where they're talking about the admissibility of evidence of other evidence gathering techniques is. And in this case--and I know the Court's somewhat familiar with it--the Defense wanted to put in evidence of other electrophoretic techniques that could have been used by the Los Angeles Police Department that were not used, specifically isoelectric focusing, and that was precluded by the trial court, and the Supreme Court held that:
"We agree that it was not material to any issue in this case. The defectiveness of the evidence gathering technique in this case, if any, is not measured in comparison to other reportedly superior methods. Such comparison cannot assist the jury in determining to what extent the method employed actually produced probative evidence nor can it help the jury assign a weight to the evidence." So in other words, when we're trying to determine how well the evidence gathering techniques worked in this case and how probative they are, we have to look at the techniques we used, not other techniques that we could have used and purportedly superior techniques. And this is particularly instructive here because if we find a policy provision that says you could have maintained the evidence this way or you could have collected the evidence this way, does it really tell us anything about the reliability of the technique that we actually used here? And I think, to paraphrase the Supreme Court, it does not tell us anything about the techniques that were actually used in this case to look at some purportedly different techniques that could have hypothetically been used. So I'd say that--and I know maybe this is a late juncture to be arguing this because we've already gone into the questions of policy very extensively, but I'd argue that the issue of policy really doesn't tell us anything probative about what we are inquiring here. And to the extent it is probative, its probative value is minimal and is clearly outweighed by the fact that we've already spent an enormous amount of time on it with all of our witnesses, with Dennis Fung, with Andrea Mazzola, with Greg Matheson testifying about the policy manual, how they interpret it, what it requires, what it doesn't require, who it covers, who it doesn't cover. Any minimum probative value that the evidence has is clearly outweighed by the fact we've already spent an enormous amount of time and we shouldn't spend any more. Now, as to some of the other items, the issue of Michele Kestler's husband, it was the Defense that brought out the fact on cross-examination of Dennis Fung--how it came in or why it came in, I'm not sure--that Michele Kestler's a laboratory director and her husband works for the robbery-homicide. So I guess it is in the record, but we did not bring it in, and we only mentioned it after it was already brought out by the Defense and only in the context of refuting the implication that somehow Michele Kestler and her husband, because he worked for robbery-homicide, and a lot of other people were involved in a conspiracy to frame the Defendant, including Dennis Fung, and that was the only context in which we asked that it be brought out. But it is irrelevant and I think that the case of People versus Kronmeyer is somewhat instructive. And there, what happened was, the Defendant had embezzled--it was an attorney, and he embezzled client funds from a client who was senile. And the doctor who testified as an expert witness for the Prosecution that the victim was in fact incompetent was a friend of one of the beneficiaries of the victim's estate. And the California Supreme Court here at--excuse me--the California Appellate Court at 189 Cal. App. 3D. 314 and the discussions around page 342 to 343 held that the trial court properly disallowed any questions showing the relationship between the Prosecution's expert witness, the doctor, and the beneficiary of the estate because they said that that relationship, that personal relationship between Dr. Korwin and Miller does not itself suggest any bias or any hypothetical suggestion that a bias in favor of miller would manifest itself further by being suggestive of Korwin's bias against anyone as to whom miller was prejudiced is pure speculation. Well, the same exact kind of reasoning is being applied here. They're saying, well, maybe her husband is biased against the Defendant because of his association with robbery-homicide and because of her association with him, maybe she's biased. I suggest that that's simply too speculative to be allowed. As to the impeachment issue on the question of her testimony at the Griffen hearing, the law is settled in California, and we've cited this in a number of different contexts, that we do not generally allow collateral impeachment. Collateral impeachment is impeachment where a witness is testifying to something that is itself not at issue in the case, and you then want to introduce evidence to prove that that testimony was incorrect. The question of when the items were actually sent out as opposed to being prepared to being sent out to Cellmark is not something that is being disputed by the parties. In other words, they're not saying that they were actually sent out on a different date than what we're saying. So the question of when they were sent out is an immaterial issue, an issue that neither side disputes and that neither side is contending is relevant to this case. So what they want to do is ask her when were the items sent out and then to have her say, "Well, this is my understanding of when they were sent out," and then impeach her with her prior inconsistent statement.
So this is a classic instance of collateral impeachment, of eliciting something that is not relevant and is not admissible except insofar as the Defense wants to elicit it from the witness for the purposes of impeaching her with it. And there were quite a few cases discussed that we cited in our brief where similar attempts were disallowed. And essentially what these cases have said is that you really can't set up a straw man and you can't call someone for the sole purposes of eliciting otherwise inadmissible evidence that's not in contest so that you can later on knock down that same evidence, and we suggest that they cannot do so here. It appears that what the Defense wants to do is, they're more interested in impeaching the witness than they are in actually getting anything substantive from her. So I guess what they want to do is call her maybe for something that perhaps the Court will feel has some probative value in the case such as policy and say, "Well, the policy really isn't that you're allowed to put your evidence in plastic bags, is it, Miss Kestler," and her answer, "No, that is the policy. It's okay. You can put it in plastic bags as long as it's not for permanent storage," and then after having elicited this kind of testimony, then impeach her with the fact that her husband works for robbery-homicide and this alleged prior inconsistent statement. I don't think that should be allowed and it seems like it's a patent case of setting up a straw person because why would you call a witness to testify about policy who you don't think is telling the truth and then have to impeach that witness on the witness stand? I mean, there are many people that can testify about policy, many of whom are far more qualified to testify about policy than Michele Kestler. So pick someone that you think is going to tell you the truth rather than have her testify to something, say, well, she's obviously not telling us the truth. So therefore, we have to impeach her. I don't think that kind of subterfuge should be allowed by the Court. And let me just say as to this issue of collateral impeachment, Michele Kestler does not have personal knowledge as to when the items were sent out. When she testified at the grand jury hearing, she had forgotten that she had been told previously that the item had already been sent out and she testified that it's ready to be sent out. That's not the kind of thing that anyone would want to lie about anyway. It doesn't help the People, it doesn't help the Defense. It doesn't mean anything in the context of this case, and there doesn't appear to be any material difference between having been sent out and being packaged and ready to send out. What had happened was that the item was in fact sent out and the testing was halted, and this kind of a instance of a witness misspeaking herself on a completely collateral issue should not be allowed. So I'd respectfully submit, your Honor, that these five items that I've talked about should not be permitted in evidence and that perhaps after they've been excluded, counsel will have nothing left to ask Miss Kestler.
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: Your Honor, one thing on the leak. None of these other issues--
THE COURT: No. No. I've heard enough about the leak. I've heard about the leak four times now.
MR. NEUFELD: I just want to say, we don't even intend to call reporters. I don't think we need to. I think that with just Miss Kestler frankly testifying--she already testified at the 402 hearing that she was aware of the fact it was reported in the newspapers, that same information. It's not hearsay because it's not being offered for the truth of the matter asserted. It's just being offered for the fact that it was in fact published in the newspapers.
THE COURT: All right. Thank you. All right. The Court has dealt with this issue in a series of different guises. However, the issue is the same, whether or not this is relevant under 350 of the evidence code, whether or not it involves--also involves an undue consumption of time given the very limited, almost none--in fact non-existent probative value. Court sustains the relevancy objection under 350 and also under 352. Having balanced this and weighed it three times, four times, perhaps five times previously, that ruling stands. As to the issue of Michele Kestler's spousal relationship to a coworker of Detectives Vannatter and Lange, counsel may inquire into that briefly. It goes into--it does present an issue of potential bias. As to the Griffen hearing, the fact that Miss Kestler gave incorrect testimony, if she in fact testifies similarly, she'll have the--she can be confronted with that prior inconsistent statement under oath. As to the policies and procedures of the Scientific Investigation Division, I'll allow some latitude in cross--excuse me--in presentation of that testimony since, as the acting director at the time in question and is now director of the lab, she should be familiar with the policies and procedures regarding the functioning of the SID, and that is an appropriate area of inquiry. All right. Let's have the jury.
MR. NEUFELD: Your Honor, just one other thing. For purpose of this examination, I would ask that the Court declare her under the evidence code an adverse witness. I think--
THE COURT: Well, let's see how she answers. It's also not a civil case. 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. Let the record reflect we've been rejoined by all the members of our jury panel. Next witness.
MR. NEUFELD: Defense calls Michele Kestler, please.
Michele Kestler, called as a witness by the Defendant, was sworn and testified as follows:
THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?
MS. KESTLER: I do.
THE CLERK: Please have a seat in the witness stand and state and spell your first and last names for the record.
MS. KESTLER: Michele Kestler, M-I-C-H-E-L-E K-E-S-T-L-E-R.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Thank you, your Honor. Good afternoon.
DIRECT EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Good afternoon, Miss Kestler.
MS. KESTLER: Afternoon.
MR. NEUFELD: Miss Kestler, what is your current title?
MS. KESTLER: I'm employed by the City of Los Angeles, Los Angeles Police Department as Chief Forensic Chemist.
MR. NEUFELD: And are you also the director of the Scientific Investigation Division laboratory?
MS. KESTLER: I'm the director of the criminalistics laboratory, yes.
MR. NEUFELD: And what was your title as of June 12th, 1994?
MS. KESTLER: I was assistant laboratory director or one of the assistant laboratory directors.
MR. NEUFELD: And could you please tell the ladies and gentlemen of the jury when your title changed?
MS. KESTLER: I don't recall the exact date. I believe it was sometime in late July.
MR. NEUFELD: All right. So as the director of the criminalistics laboratory of the Los Angeles Police Department, I mean, you were Dennis Fung's boss; is that correct?
MS. KESTLER: I was his ultimate superior, not immediate supervisor by any means.
MR. NEUFELD: And you were also the ultimate supervisor of Andrea Mazzola; is that right?
MR. DARDEN: Objection. Vague as to time, your Honor.
THE COURT: Overruled.
MS. KESTLER: Ultimately.
MR. NEUFELD: And you were also the ultimate supervisor of Collin Yamauchi?
MS. KESTLER: Yes.
MR. NEUFELD: And Gregory Matheson?
MS. KESTLER: Yes.
MR. NEUFELD: Now, as the laboratory director of the criminalistics laboratory of the Los Angeles Police Department, did you have day-to-day management responsibilities for the various units within that criminalistics laboratory?
MS. KESTLER: I had overall management responsibility for the laboratory, not day-to-day responsibilities. For day-to-day functions within the laboratories, no.
MR. NEUFELD: All right. And in that criminalistics laboratory, you would have management responsibilities for the crime scene investigation unit?
MS. KESTLER: Ultimate management responsibility. Again, not day to day.
MR. NEUFELD: And you would have ultimate management responsibility for the serology unit?
MS. KESTLER: Yes.
MR. NEUFELD: And for the hair and fiber unit?
MS. KESTLER: Yes.
MR. NEUFELD: And for the DNA unit?
MS. KESTLER: Yes. Well, DNA and serology are all one unit actually.
MR. NEUFELD: And how many criminalists were working for the criminalistics laboratory on June 12th of 1994 approximately?
MS. KESTLER: Uh, I can't recall exactly, we had so many vacancies. Probably about--I believe at that time, we were down to about 40 staff members, but that's approximate.
MR. NEUFELD: And was another one of your responsibilities, Miss Kestler, the evaluation of current programs and procedures of those units?
MS. KESTLER: Ultimately, yes. Not day to day again, not until they're approved all the way up through the chain.
MR. NEUFELD: Well, and if the procedures in a particular unit were inadequate, you would have ultimate responsibility to make improvements in those units, wouldn't you?
MS. KESTLER: I would suggest and listen to my supervisors, and if I personally was an expert in the field, depending on what it was, and I thought a procedure needed to be changed, I would ask for it to be changed.
MR. NEUFELD: But if your deputies made recommendations to you, ultimately it would be your decision whether or not to implement those changes; is that correct?
MS. KESTLER: Umm, most of the time. Most of the time, they made their own changes because I don't need to be involved in every small change that's made in the division.
MR. NEUFELD: Well, let's talk about some of the larger changes. If you introduce a new program into the criminalistics laboratory and as a result of that, new procedures needed to be implemented as well, would that ultimately be a decision you would make as the manager of or as the director of that laboratory?
MR. DARDEN: Objection, your Honor. This is irrelevant.
THE COURT: Overruled.
MS. KESTLER: I'm sorry. I didn't hear.
THE COURT: You can answer the question.
MS. KESTLER: Thank you. Not necessarily every small detail, not--again, no. They might review them with me and then I would agree or disagree that we should go forth with the program.
MR. NEUFELD: Well, for instance, how many years ago was it that the DNA unit was introduced into the SID criminalistics laboratory?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: When they started operating doing casework or when we started beginning to attempt to implement doing DNA or researching it?
MR. NEUFELD: When did you actually begin the implementation?
MS. KESTLER: They began actually doing casework--I can't say when the implementation began. The actual casework began in late 1993.
MR. NEUFELD: And if as a result of implementing this new unit--I'm sorry. If as a result of opening this new unit at the LAPD it was determined that new procedures were needed, new training, for instance, was needed, would that ultimately be a decision that you as the director would make?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: Again, I think we can cover this all in one answer. Again, it's not always my decision as to who gets the training. I take the advice of my subordinates who are directly responsible for that. Now, if it comes down to a let's draw straws and see who wins, often times, I make that tie-breaking decision.
MR. NEUFELD: Now, in addition to those responsibilities, Miss Kestler, did you also take responsibility for managing, for overseeing some of the larger cases?
MS. KESTLER: Not overseeing or managing. Just being kept abreast of what was going on in those--in larger cases at times, especially when they get out of hand, in volume that is.
(Brief pause.)
MR. NEUFELD: Miss Kestler, do you recall testifying at a hearing in this case on June 30th, 1994?
MR. DARDEN: Objection, your Honor. Can I--
THE COURT: Sustained.
MR. NEUFELD: Miss Kestler, isn't it true that you also have responsibility for managing or overseeing large cases at the SID criminalistics laboratory?
MR. DARDEN: Objection. Vague as to time, your Honor.
THE COURT: Overruled.
MS. KESTLER: Well, I'm not clear what you're trying to ask. You asked me this once a minute ago, and I said that I often review and not directly oversee on a day-to-day basis, again, unless there's some reason for me to maybe jump in and take part. It's much as the chief of police oversees anything in the department. He doesn't do it personally. So you need to be more specific what you mean.
MR. NEUFELD: Well, was it your practice to oversee and stay involved in the large cases?
MR. DARDEN: Objection. Vague as to time.
THE COURT: Overruled.
MS. KESTLER: No, it isn't my practice to stay involved. I like to be kept abreast of any large case and occasional run-down of what's going on in the case as I try not to get overly involved, stay out of people's way.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. DARDEN: There's an objection, your Honor. May we approach?
THE COURT: Nope. Proceed.
MR. NEUFELD: On June 30th, when you testified in a hearing, were you the assistant laboratory director or the acting--were you the acting laboratory director or were you the assistant laboratory director?
MS. KESTLER: I was the assistant laboratory director at that time.
MR. NEUFELD: And as the assistant laboratory director, was--
THE COURT: I think we're talking 1994?
MR. NEUFELD: Yes. June 30th, 1994.
MR. NEUFELD: At that point in time--and by the way, were you also the acting--I'm sorry--were you also the assistant laboratory director on June 12th, 1994?
MS. KESTLER: Yes, I was.
MR. NEUFELD: Okay. And at that point in time, wasn't one of your responsibilities to manage large cases?
MS. KESTLER: No. I didn't manage them. I often took part in them or reviewed them, but I didn't directly manage the large cases for the most part.
MR. NEUFELD: Under oath on June 30th of 1994, were you asked this question, did you give this answer?
MR. NEUFELD: Page 18.
(Brief pause.)
MR. NEUFELD: You there? Want to read with me?
MR. NEUFELD: "Question: Tell us what that means, what are your duties. "Answer:"
MR. DARDEN: Objection. This isn't impeachment.
THE COURT: Overruled.
MR. NEUFELD: "Answer: My duties include the managing and overseeing of several areas there, including the serology, DNA lab, the trace unit and many of the other units that are there. "Question: And what does that mean? What exactly do you mean by that? "Answer: Well, managing also means evaluating and implementing programs such as serology and DNA, including evaluating crime scenes and managing task forces or large cases and the employees that are doing the work."
MS. KESTLER: Yes.
MR. NEUFELD: Were you asked those questions, did you give those answers on June 30th?
MR. DARDEN: Objection. Motion to strike. That wasn't impeachment.
THE COURT: Overruled.
MS. KESTLER: Yes. And that's exactly what I've been telling you here. I try not to get involved. I don't do every large case. You asked me if I--
MR. NEUFELD: Excuse me, your Honor. I just asked if she was asked those questions--
MS. KESTLER: Oh, sorry.
MR. NEUFELD: --and gave those answers. It's nonresponsive. Move to strike.
THE COURT: No. She gets to answer and explain her answer. Proceed.
MS. KESTLER: I was trying--that's exactly--what you said there is exactly what I was trying to say. I try not to get involved in every large case. You asked me if one of my duties, I thought you asked, was to do--manage large cases. Occasionally, I will manage a task force or a large case and yes, I oversee the units. We talked about that.
MR. NEUFELD: In this particular case, did you play a role in overseeing what happened at SID?
MS. KESTLER: Not all through the case, no.
MR. NEUFELD: Well, through part of the case, did you play a role in overseeing what happened at the SID criminalistics laboratory?
MS. KESTLER: Along with Mr. Matheson, who was primarily in charge of overseeing the case, and then I worked with him a little bit more.
MR. NEUFELD: In fact, Miss Kestler, didn't you play a larger role in the Simpson case than in other cases because of certain staffing problems with regard to Mr. Matheson being the only deputy you had?
MS. KESTLER: He was the only supervisor in charge of the serology, DNA and trace unit. So yes, I played a little larger role than I usually do.
MR. NEUFELD: Larger role in this case than you usually do?
MS. KESTLER: That is correct.
MR. NEUFELD: That's correct. Okay.
MS. KESTLER: And it wasn't just Mr. Matheson. It was just our lack of staffing in several areas.
MR. NEUFELD: Didn't you--isn't it true that the reason was not because of other staffing, but because there was no assistant laboratory director besides Mr. Matheson? Isn't that the reason?
MS. KESTLER: No. Mr. Matheson wasn't the assistant lab director at that time. He was the supervisor of the serology, DNA unit and Mr. Johnson was the assistant laboratory director.
MR. NEUFELD: On August 1st, 1995, were you asked this question, did you give this answer at a hearing outside the presence of the jury in this courtroom under oath?
MR. DARDEN: Objection, your Honor. May I?
THE COURT: Yes.
MR. NEUFELD: I'm sorry.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. DARDEN: No objection.
MR. NEUFELD: Were you asked this question, did you give this answer? "Question: In this particular case, did you play a role in overseeing the processing and handling of the case? "Answer: I was attempting to assist in that process because at this time, Mr. Matheson--there was no assistant laboratory director. So I played a little larger role than I normally would." Did you give that answer to that question just two weeks ago?
MS. KESTLER: Two weeks ago?
MR. NEUFELD: On August 1st, 1995?
MS. KESTLER: No. I was the only--I was referring to myself as being--
MR. NEUFELD: I'm sorry, your Honor. I would move to strike.
THE COURT: Overruled.
MR. NEUFELD: Were you asked that question, did you give that answer?
MS. KESTLER: Well, I said that, but I was referring to myself as the only assistant laboratory director at the time. I don't know--I don't remember what that was referring to. Is it out of context?
THE COURT: Next question.
MR. NEUFELD: Well, do you acknowledge that you gave that answer to that question just two weeks ago in this courtroom?
MS. KESTLER: I possibly did, but I don't know what it was in reference to. I don't know what time frame it was referring to either. Do you have a time?
MR. NEUFELD: Let me show you your testimony.
MS. KESTLER: Thank you.
MR. NEUFELD: Starts here, goes to here (Indicating).
MS. KESTLER: I must have been thinking supervisor. I don't know what I was thinking of.
MR. NEUFELD: Miss Kestler, did you give that answer to that question on August 1st at a hearing in this courtroom?
MS. KESTLER: Apparently I did.
MR. NEUFELD: In fact, during the first couple of weeks after September 12th--I'm sorry. In fact, during the first couple of weeks after June 12th, 1994, didn't you participate in several meetings concerning this case?
MS. KESTLER: I wouldn't say several. Maybe two or three, maybe four meetings. Not a lot. I don't recall a lot of meetings.
MR. NEUFELD: Well, I didn't ask you if it was a lot. I asked you if you participated in several meetings, Miss Kestler.
MR. DARDEN: Objection, your Honor. Argumentative.
THE COURT: Vague as well. Sustained.
MR. NEUFELD: All right. Miss Kestler, did you take any notes at the--I'm sorry. You believe you participated in how many meetings during the first two weeks?
MS. KESTLER: Just a few.
MR. NEUFELD: Okay.
MS. KESTLER: That I recall.
MR. NEUFELD: All right. In the few meetings that you recall participating in, did you take any notes?
MS. KESTLER: No. I had no reason to.
MR. NEUFELD: Well, Miss Kestler, didn't you say a moment ago that you did play some role in overseeing this case in your role as the laboratory--as the assistant laboratory director?
MS. KESTLER: Yes, but there was not any need to take notes. Notes were being taken by the parties involved if they were necessary. I had no reason to.
MR. NEUFELD: Miss Kestler, as the assistant laboratory director, would you give certain suggestions or directives to other people?
MS. KESTLER: Yes.
MR. NEUFELD: And would you agree that one way to know what directives to give to these other people would be to write down what you say so you can look back at it at a later time and see whether or not the person followed your directive?
MS. KESTLER: Yes, if I thought at that time that I couldn't remember it myself.
MR. NEUFELD: Okay. But you now feel that you didn't need notes because you could remember it?
MS. KESTLER: At that time, I felt I could remember anything that was going on, yes.
MR. NEUFELD: All right. Well, let's see. When was the first meeting you participated in--
MS. KESTLER: Excuse me. I didn't think that was important, so I wouldn't have written that down anyway probably.
MR. NEUFELD: Who was present at the first meeting that you participated in in connection with this case?
MS. KESTLER: Again, I wouldn't have thought it was important. So I wouldn't have written it down.
MR. NEUFELD: I'm not asking you that. Can you remember when it was--
MS. KESTLER: No, I don't even remember when it was.
MR. NEUFELD: You don't remember what?
MS. KESTLER: I don't even remember when it was.
MR. NEUFELD: So you don't remember when it was, you don't remember who was there?
MS. KESTLER: No.
MR. NEUFELD: Do you remember--do you remember the subject matter of the very first meeting you participated in in connection with this case?
MS. KESTLER: No. No.
MR. NEUFELD: I'm sorry. No?
MS. KESTLER: No.
MR. NEUFELD: Isn't it true that as early--that is, 8:30 in the morning on June 13th, you were telephoned, they called you at your home to tell you about this case?
MR. DARDEN: Objection, your Honor. This is leading.
THE COURT: Sustained.
MR. NEUFELD: Did you participate in a meeting on June 15th with assistant District Attorney Marcia Clark about deciding which evidence should be sent out for testing?
MS. KESTLER: I don't recall the date because I didn't take notes on that. There are notes on that meeting, but I didn't take them. I don't recall the date. We did have a meeting soon after with Marcia Clark.
MR. NEUFELD: Who took the notes at that meeting?
MS. KESTLER: I believe Greg Matheson.
MR. NEUFELD: Did you review Mr. Matheson's notes at this meeting before coming here today?
MS. KESTLER: No. I had no reason to. I didn't know why you were calling me. So--
MR. NEUFELD: Who else was present at this meeting on June 15th with Marcia Clark from the District Attorney's office?
MS. KESTLER: I don't recall.
MR. NEUFELD: Was there a discussion at that meeting regarding a decision to send evidence out for DNA RFLP testing?
MR. DARDEN: Your Honor, this is hearsay, leading.
THE COURT: Overruled.
MS. KESTLER: I don't recall if there was that day or not. I know at some point, we had a meeting as to what evidence we had and what was going to be tested and who was going to test it.
MR. NEUFELD: On the very next day, June 16th, did you participate in another meeting about this case?
MS. KESTLER: I don't recall.
MR. NEUFELD: Do you recall being at a meeting with Erin Reilly, Collin Yamauchi and Dennis Fung and Greg Matheson about this case on June 16th?
MR. DARDEN: Your Honor, this is leading.
THE COURT: Overruled.
MS. KESTLER: I don't recall.
MR. NEUFELD: Do you recall participating in a meeting on or about that time to discuss the need for security in this case?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: Security of evidence in general or--
MR. NEUFELD: Security of the evidence in this case.
MS. KESTLER: Okay.
MR. NEUFELD: Do you recall having that meeting on or about June 16th, 1994?
MR. DARDEN: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
MS. KESTLER: No, I do not recall the meeting, but we have a security policy on evidence in general, which was followed in this case, the same as it is in all cases.
MR. NEUFELD: I'm not asking you about the policy in general. I'm asking you, ma'am, if you recall participating in a specific meeting to address security issues concerning evidence in this case on or about June 16th, 1994?
MR. DARDEN: Again, your Honor, it assumes facts that are not in evidence.
THE COURT: Overruled.
MS. KESTLER: No, I don't recall any meeting regarding that specific issue.
MR. NEUFELD: As the director of the criminalistics laboratory at SID, wouldn't you agree that security of the evidence in this high profile case would be a concern of yours as the director?
MR. DARDEN: Objection. Vague as to time, irrelevant.
THE COURT: Overruled.
MS. KESTLER: I agree that it would be a concern, but it's a concern in every case we have and we treat all cases regarding evidence the same. Now, if the department classifies it as a confidential case, then the evidence in our property section, whether it be in our property section or somewhere else, is handled differently. But we don't declare it confidential. That's done by the police department, not us.
MR. NEUFELD: Miss Kestler, but is it your testimony there was no specific discussion about security in this case?
MS. KESTLER: No, I didn't say that.
MR. DARDEN: Objection, your Honor.
MS. KESTLER: Sorry.
MR. DARDEN: That's right. She didn't say that. Misstates the evidence.
THE COURT: Sustained.
MR. NEUFELD: Well, what is your recollection as to whether or not there was any meeting to discuss security issues pertaining to this case in particular with other individuals in the SID criminalistics laboratory?
MR. DARDEN: Objection, your Honor. Asked and answered.
THE COURT: Sustained.
MR. NEUFELD: Do you recall participating in a meeting--by the way, do you have any notes of the meeting to discuss security in your laboratory?
MS. KESTLER: No. Well, I don't personally, no, and I don't know if there are any. I did not review all the notebooks before I came here.
MR. NEUFELD: On June 21st of 1994, did you participate in a meeting with Dennis Fung, Greg Matheson and Collin Yamauchi regarding what additional analysis should be done on the evidence in this particular case?
MS. KESTLER: I don't recall at that particular date and time a specific discussion.
MR. NEUFELD: Did you take any notes at that meeting?
MS. KESTLER: No, I did not. If I was there. I don't recall the meeting. So I can't answer.
MR. NEUFELD: You said a moment ago that one of the reasons you didn't take notes is, it was your impression of the time that you could remember what transpired if need be. Do you recall testifying to that a few minutes ago?
MS. KESTLER: Yes. And I said at the time, I remembered. At this point in time, I don't remember because at this point in time, it's--it wasn't important. So, you know, once it wasn't important anymore, I don't remember it.
MR. NEUFELD: If you don't remember what it is that transpired, how can you determine that it's not important, Miss Kestler?
MR. DARDEN: Objection.
THE COURT: Argumentative, counsel. Rephrase the question.
MR. NEUFELD: Okay. If you don't remember what transpired at any of these meetings that you were present at, how can you make--I'm sorry. How do you make an assessment as to whether or not what transpired at the meeting was important?
MS. KESTLER: Well, first of all--
MR. DARDEN: That's argumentative, your Honor.
THE COURT: Assumes facts not in evidence. Sustained.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Miss Kestler, you said you did play some role, a greater role in this case than in other cases in overseeing; is that correct?
MS. KESTLER: In assisting in overseeing. Mr. Matheson, again, was the main major--played the major role, kept the notes and documented everything.
MR. NEUFELD: Would you agree as part of that role of overseeing or assisting in the overseeing of this case, that maintaining the security of the evidence is certainly an important point?
MS. KESTLER: Yes. I think we talked about this earlier.
MR. NEUFELD: And would you agree, Miss Kestler, that someone who is assisting in the overseeing of this case in that laboratory, that decisions as to whether or not the evidence should be sent out for DNA testing as opposed to be handled in-house for certain logical testing is another important question?
MS. KESTLER: Yes. And I never said that we didn't discuss it at some point. I just don't know the date and the time and who was there and exactly when we made those decisions.
MR. NEUFELD: Miss Kestler, didn't you tell this jury not only do you not remember who was there when it happened, but you don't even remember what was said in substance at those meetings? Isn't that true?
MR. DARDEN: Objection, your Honor. Misstates the testimony, argumentative.
THE COURT: Sustained. Sustained.
MR. NEUFELD: Do you have any recollection at all of the substance of the meeting regarding the security measures that needed to be taken in this particular case?
MR. DARDEN: That has been asked three or four different ways. Objection.
THE COURT: Sustained.
MR. NEUFELD: Perhaps, your Honor, this would be a good time to break for the afternoon.
THE COURT: Proceed.
MR. NEUFELD: Was it your practice, Miss Kestler, not to take notes in meetings that you participated in where you were involved in assisting to oversee a particular case?
MR. DARDEN: Argumentative as phrased, your Honor. It's leading.
THE COURT: Overruled. Overruled. You can answer the question.
MS. KESTLER: It depends on what the substance of the meeting is and how much my role is in the meeting whether I take notes or not. If I don't give any directive and I just sit back and listen, I don't always take notes.
MR. NEUFELD: Miss Kestler, you--as you sit here today, do you know whether or not you gave any directive regarding the security that needed to be taken, security measures that needed to be taken regarding the evidence in this case?
MS. KESTLER: Once the case was made confidential, I gave some directives, and those are standard directive policies within the department. So I wouldn't write that down as being specific because it's not to any one particular individual.
MR. NEUFELD: Miss Kestler, what you're saying is, you didn't write down the directive that you gave in this case regarding security; is that correct, ma'am?
MS. KESTLER: No, other than I notified everyone that it was to be--it was being handled as a confidential case, and confidential cases have a standard way of handling the evidence.
MR. NEUFELD: Your Honor, I would move to strike. I asked her if any directives were given, not what the directives were.
THE COURT: The answer is stricken. The jury is to disregard.
MS. KESTLER: Sorry. I misunderstood what you're saying.
MR. NEUFELD: Certainly. Did you write down the directive that you gave regarding security measures to be taken in this case?
MS. KESTLER: No. I just told the people that it was to be handled as a confidential case.
MR. NEUFELD: Did you write down any of the decisions that were made regarding what types of analyses should be done in this case?
MS. KESTLER: Those were written on an inventory we did--I did with a couple other individuals on I believe June 29th.
MR. NEUFELD: Did you write down--did you write down any of the directives that you gave at a June 21st meeting with Dennis Fung, Greg Matheson and Collin Yamauchi regarding what types of analyses should be performed?
MR. DARDEN: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: You said a moment ago that you mentioned directives on a particular date. What was that date, ma'am?
MS. KESTLER: June 29th.
MR. NEUFELD: And how do you remember now on August 14th, 1995 writing down directives on June 29th?
MS. KESTLER: Because I have those in writing.
MR. NEUFELD: Well, did you review those documents before you came to court today?
MS. KESTLER: Uh, no, but I brought them with me I believe or I looked at them before because we talked about them at other meetings.
MR. NEUFELD: Are there other notes and documents that you looked at and that you brought with you today to assist you on the witness stand?
MS. KESTLER: Part of my problem, counsel, is, I tried to bring like my attendance records and things that you interviewed me about. So those are things I tried to review, and you didn't interview me about any of these things. So I would not have thought to review them.
MR. NEUFELD: Miss Kestler, did you bring any notes with you to assist you in your testimony today?
MS. KESTLER: Well, if I have my attendance records, because you wanted--
MR. NEUFELD: No. No. What I was--Miss Kestler, please, I'm just asking you if you brought anything with you today. I'm not even asking you particular--
THE COURT: Excuse me. Both of you stop. I am going to quit today. I want counsel to stay on both sides. Ladies and gentlemen, we are going to take our recess for the afternoon. Please remember all my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you. Also, don't allow anybody to communicate with you with regard to the case. I'll see counsel in chambers.
(The following proceedings were held in camera:)
THE COURT: All right. On the record. We're in chambers with most of counsel here. Counsel, we've been spending entirely too much time in this case dealing with extraneous matters, going on infinitum as to small collateral matters that apparently are important to you, but are not important to this jury. This jury is just bored to tears. You can look at their faces and look at their expression. I don't think any of you bother to pay attention to what the jury is looking at. They could care less about Dr. Rieders and all those other reports and the Sconce case. They could care less about Michelle Kestler. I am going to be much more stringent on relevant material, cutting to the chase. A lot of what we heard so far today, a lot of what we heard today was just pure unadulterated crap. All right. See you tomorrow.
MR. NEUFELD: May I be heard since you are addressing it to me in my direct examination? I actually resent.
THE COURT: Nope. Nope. Out. See you tomorrow.
MR. NEUFELD: Can I be heard on the record tomorrow before we begin?
THE COURT: You may.
MR. NEUFELD: Thank you, your Honor.
(At 5:20 P.M., an adjournment was taken until, Tuesday, August 15, 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 Monday, August 14, 1995 volume 205
Pages 41396 through 41702, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
ALSO PRESENT: Kelli Sager, Esquire Laurie J. Butler, Esquire Richard P. Towne, Esquire
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I N D E X
Index for volume 205 pages 41396 - 41702
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Day date session page vol.
Monday August 14, 1995 A.M. 41396 205 P.M. 41529 205
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
Rieders, Fredric 205 (Resumed) 41436mc (Resumed) 41577mc 41589bb 41604mc
Kestler, 41674n 205 Michele
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Kestler, 41674n 205 Michele
Rieders, Fredric 205 (Resumed) 41436mc (Resumed) 41577mc 41589bb 41604mc
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
585 - 9-page document 41460 205 memorandum dated March 26, 1991, to Michael Bradbury from Kevin G. Denoce
586 - 2-page document 41483 205 described as a report of Dr. Rieders
587 - Document 41635 205 invoice from the National Medical Services, Inc., dated April 19, 1991
588 - 7-page document 41640 205 report by Jack Henion dated April 17, 1991