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