Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(Pages 42970 through 42977, volume 212-A, transcribed and sealed under separate cover.)
(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. Blasier and Mr. Scheck, People represented by Mr. Goldberg and Mr. Darden. The record should reflect the absence of Miss Clark. Mr. Darden, I understand that Miss Clark is ill today.
MR. DARDEN: She is just not available.
THE COURT: All right. My understanding is that you wish to proceed in her absence and request that I advise the jury that she is not available today, but the Prosecution chooses to go forward.
MR. DARDEN: Yes, please.
THE COURT: All right. All right. The record should also reflect that we have had an in chambers conference regarding an item in the newspaper which slipped by our censors, and we've interviewed the jurors who had access to that, and I've requested counsel to confer and see if there's any further request for any inquiry.
MR. SHAPIRO: There is not, thank you.
THE COURT: All right. Mr. Darden.
MR. DARDEN: No. We're satisfied, your Honor.
THE COURT: All right. And I'm referring to the Mike Peters' cartoon in the August 23rd edition of the Los Angeles Times. All right. Mr. Cochran, I take it you have no personal objection to that?
MR. COCHRAN: No, your Honor. I'll be representing that individual soon. I'm only kidding. No, I have no objection to the ruling.
THE COURT: All right. Since you were the person involved.
MR. COCHRAN: Yes. No problem. It's just a joke.
THE COURT: All right. If I were you, I would have found it both humorous and complimentary.
MR. COCHRAN: Your Honor brought it to my attention. I hadn't seen it. I appreciate it.
THE COURT: All right. That's the only part of the times I read these days. Mr. Blasier. All right. We need to go on to the swatch drying experiment argument. Do you have anything else before we launch into that?
MR. BLASIER: Yes, very briefly. I filed a brief this morning with respect to the discovery violation/sanction.
THE COURT: I wouldn't go--I would not call that a brief. I would call that a tome.
MR. BLASIER: Well, most of it is attachments. It's just a copy of the notes that supposedly described--
THE COURT: The fact that it's an inch and a half thick--
MR. BLASIER: Well, here's what I'm suggesting. The brief is only nine pages. But what I'm suggesting is, I can't imagine that the Prosecution is going to be able to show any harm from what turns out to be 21 pages that relates to Dr. Lee's testimony, all of which was contained in his report. If the court is going to consider imposing any kind of instruction or any other sanction, I would ask that you review that prior to doing it. Otherwise, I would suggest that you defer this until you have more time. It's not worth the time quite frankly. But if you're going to oppose anything, I would request that you review it.
THE COURT: All right.
MR. GOLDBERG: May I respond to that briefly, your Honor?
THE COURT: Yes.
MR. GOLDBERG: Your Honor, we prepared a list yesterday--actually Miss Martinez prepared this for me--of the items that Dr. Lee testified to and the references to those items in various reports. In other words, it correlates the materials that we previously provided to the court by dividing them by subject matter, and I'm wondering whether the court might want to take a look at that and have a copy of that document.
THE COURT: Yes.
MR. GOLDBERG: The other thing is, your Honor, we would like to take a look at researching the issue of motions to reconsider. I've done this before and argued this before but not for a couple of years, and there are provisions either in the rules of court or the code of civil procedure dealing with when it can or cannot be done; and perhaps we should do that before the court undertakes the process of reading this brief.
THE COURT: Well, Mr. Goldberg, let me tell you frankly what my thought process is, and maybe this will help you. In fashioning any sanction, it's important to know what the nature of the harm was and what the prejudice was, which is why I've asked you to respond in a specific--item specific way what is it about this particular item in Dr. Lee's notes, the fact that you did not receive those notes until, you know, the 8th of August or so and the fact that Dr. Lee started his testimony on, as I recollect, the 22nd, what is it about that information and that 14-day period that didn't give you sufficient time to prepare or what came as a surprise or, you know, what do you have to do; say, for example, Dr. Lee's testimony regarding possible other footprints--excuse me--shoeprints--have to be precise in these things--whether or not you had sufficient opportunity to send copies of these items to Mr. Bodziak to consult with him. That's what I want to know. I want to know what the nature of the prejudice is, and I understand you're going to file that sometime this afternoon.
MR. GOLDBERG: You want us to file it sometime this afternoon.
THE COURT: No. That's what I thought I asked you to file.
MR. GOLDBERG: You asked us to file--as I recall from reading the transcript, you didn't give us a time deadline.
THE COURT: Well, Dr. Lee I assume, from our progress in the boards, is probably two-thirds of the way through his presentation.
MR. SCHECK: Sometime this morning.
MR. GOLDBERG: Well, Mr. Scheck told me he is intending to finish by 12:00 o'clock or maybe it will spill over a little bit to the next day.
THE COURT: So the issue is then whether or not you're entitled to a delay to prepare--
MR. GOLDBERG: I understand. But in terms of delay, your Honor, just so the court knows, although the People's position is that perhaps we've been irreparably prejudiced, nevertheless from a tactical perspective, we do not want any kind of an extensive--a gap between the end of Dr. Lee's testimony and the beginning of our cross-examination. So at most--I mean, it is our hope that we can go as soon as possible, as soon as possible being, at the latest, sometime very early next week. And now I know that the court also has this issue of Fuhrman and that we have to work around that as well. I would like the opportunity to consult more with Miss Clark about this. This is a tactical decision in which in effect, we may decide to forego certain remedies that the court would otherwise believe us to be entitled to in terms of a continuance. But if--
THE COURT: Let me just add one other factor for you to consider. My impression from observing the jurors--and unfortunately, you weren't privy to our discussion with one of the jurors this morning, but my impression is that they are tired and they are--
MR. GOLDBERG: We understand that.
THE COURT: --I wouldn't say close to the brink, but they're certainly within eyesight and--
MR. GOLDBERG: We understand. And that's why we're balancing what is the additional benefit we get from more preparation against the detriment that would be suffered by having Mr. Lee's--Dr. Lee's testimony not subject to cross-examination and also the jurors as well.
THE COURT: But let me ask you this. Do you really want to do anymore in this situation than have Dr. Lee accentuate the positives that go to your case, for example, his apparent opinion that these are Bruno Magli shoes and that although these appear to be parallel patterns, he can't say for sure that it's a shoeprint, it looks like a shoeprint, but he can't say for sure?
MR. GOLDBERG: Your Honor, these are the tactical issues that are going in. And what I'm trying to indicate to the court is that our tactical belief and indication is, we want the cross-examination to go at some time very, very early next week and I'd like the opportunity to discuss that with Miss Clark and tell the court about our answer this afternoon. But if that is the case, does the court want me to use a substantial amount of my preparation time right now going through these documents in order to provide the court with a more detailed list of prejudice? I would prefer--
THE COURT: No. If you represent to the court that it's your position now that you desire to proceed as quickly as possible without asking the court for any substantial delay, then my preference is that you spend your time doing that.
MR. GOLDBERG: Well, that would be my--
THE COURT: Because frankly, if I were in your shoes, this--I would cross-examine Dr. Lee for about half an hour accentuating the positives of my case, doing it in a very professional, friendly manner with him given his reputation and get out.
MR. GOLDBERG: Thank you, your Honor.
THE COURT: That's what I would do.
MR. GOLDBERG: Thank you. And we will certainly consider the court's comments and I understand exactly what your Honor is saying, and my representation is yes, we have every intention and expectation of not asking--we are not going to ask for any significant delay and we have every expectation of going forward at some time in the early part of next week, and I would like to spend my time in preparation rather than sanctions and then address--we will be asking for other kinds of sanctions in the way of jurors instructions and so on, but I would like to concentrate on that after--
THE COURT: All right.
MR. GOLDBERG: --Dr. Lee's testimony if we may.
THE COURT: All right. Then let's proceed to the argument regarding the sock drawing.
MR. SCHECK: Your Honor, just in that regard, I know I spoke to Mr. Goldberg about this and he was indicating to me that he was--I don't want to characterize it--but Monday was likely. What we just would like to know, maybe he can tell us--he indicated to me he wants to talk to Miss Clark, and by sometime this afternoon, Dr. Lee is going back to Connecticut. He has very important business and he needs to know for purposes of scheduling. Our position about prejudice is contained in the papers Mr. Blasier filed. But we would just like to know something by this afternoon so that we can make appropriate plans.
THE COURT: Well, I assume, just as a matter of courtesy, Mr. Goldberg will try to give us some information in that regard by this afternoon.
MR. SCHECK: Your Honor, one point, quick point before we proceed to the argument on the swatch drawing having to do with the next board that's coming up. I just have a quick question, and that is this.
THE COURT: Which board is this?
MR. SCHECK: This is the Rockingham board. You have it in front of you. The--I noticed last night--
THE COURT: The Rockingham board. Which one are we referring to?
MR. SCHECK: It's only one board.
THE COURT: The only Rockingham board I have is history of socks.
MR. SCHECK: No.
THE COURT: Wait, wait, wait. Is this the front foyer?
MR. SCHECK: That's correct. If you look at the picture on the bottom right, Dr. Lee's testimony will concern finding three other small blood drops or finding additional ones other than the ones that were collected, and he sort of outlines the ones that were collected. He was not going to testify to any positive presumptive tests that he performed at that time. He will be testifying to certain negative presumptive tests. I noticed in the bottom right-hand photograph that where it depicts the location of the various drops, that there is a swab on the ground which looks like or could be interpreted as a presumptive test. There's no intention to elicit any testimony about that and the results of those tests. But I had some concerns that if I displayed that photograph in that fashion, that the Prosecution might contend that we had opened the door. And if that--I just wanted to iron that out. If that's going to be the case, then we'll cover up that photograph. We have no intention of eliciting it.
THE COURT: That the swab is being used as a pointing device, something that just sort of came to hand at that location rather than the--
MR. SCHECK: Yes.
THE COURT: --the little red tapes and things?
MR. SCHECK: It serves that purpose there.
THE COURT: Okay.
MR. GOLDBERG: Well, that's kind of an ambiguous response to the court's answer because you can clearly see that there is a very distinct and unnatural color on the swatches, a bluish green tinge that's caused with the o-tolidine test that Dr. Lee performed. So it is in some ways more distinctive looking than the phenolphthalein test results which are pink and could conceivably by a layperson be mistaken for blood. This cannot be mistaken for blood. This is clearly a result of a presumptive test. It would be our position that this does open up the door on presumptive blood testing. I guess counsel could probably cover up the--the little cards with the q-tips on them. I mean, that would be one way of handling it.
THE COURT: What did we--Dr. Lee found other apparent bloodstains, did a test on them. What test did he do?
MR. SCHECK: He did an o-toluidine presumptive test on those stains.
THE COURT: And what was the result?
MR. SCHECK: They were positive. I mean, there's--I don't think there's any difference between either side that there were I believe three blood drops, two or three on item no. 12, three that were collected by LAPD in that location and were confirmed later to be blood. In fact, there was an RFLP test done at Cellmark on item no. 12. This was a high concentration of DNA. Dr. Lee found three other small drops in that area. Applying another rule that we applied in this with respect to presumptive tests with the Prosecution on the sock, I suppose I could argue that they could come in on the grounds that it's all stains in the same area. But we don't choose to elicit that it's a presumptive test. The only presumptive test that the jury has heard about I believe is the phenolphthalein test where the swatch turns red, and I think part of our concern with the other pictures where we struck them is that when you see a red swab, you might think it's blood and it's only a presumptive test. So we would--this photograph is there to just show the location. That's all he's going to testify to. And they are black. So that's the state of the record. I just--I don't want to open the door. So it's up to the court as to what you want to do with that picture.
THE COURT: All right. Well, the court's ruling is pretty clear though on presumptive tests that are not backed up by a confirmatory test since we're talking presumptive tests.
MR. SCHECK: We're not eliciting that testimony.
THE COURT: So if you want to use it, I suggest you go along with, you know, Dr. Lee can testify that he saw other reddish stains on the floor in close proximity to the three tested by the People. "These are them. Thank you very much."
MR. SCHECK: Referring to that photograph?
THE COURT: Referring to that photograph. But I think Mr. Goldberg's suggestion that the cards be covered so that the q-tip isn't--tip of the q-tip isn't apparent is probably the way to go if you want to use the photograph. He can testify to that without the photograph.
MR. SCHECK: Can I just look at the board and see if that's possible?
THE COURT: Sure.
MR. GOLDBERG: Your Honor, it actually might even be possible for counsel to simply cover up the bluish green tinge. That way, the jurors would not know whether these were simply being used as pointers as opposed to testing device.
THE COURT: You can get some white-out if such a thing still exists.
MR. SCHECK: All right. We'll do that.
THE COURT: Mrs. Robertson, have we any white-out?
THE CLERK: Yes.
THE COURT: All right. Let's go on to the argument regarding swatch drying. Mr. Goldberg.
MR. GOLDBERG: Thank you, your Honor. We filed a brief on this as counsel did. Counsel, in one of his arguments in passing, noted that the People's points and authorities wasn't filed until a few weeks after we received discovery of the experiment. I don't think that that's really here or there because we don't actually have to file written points and authorities in moving papers. This is something that we've been doing in your Honor's court in this case and flooding the court with paperwork.
THE COURT: Mr. Goldberg, the only thing I'm interested in is whether or not you think there is a substantial similarity between the situations.
MR. GOLDBERG: Okay. Thank you. The People believe there is not substantial similarity between the two situations, and there are several factors that are involved. Actually Mr. Scheck characterized most of them in his responses to them in his points and authorities starting on page 6. The issue as to whether the swatch--the test tubes--first of all, maybe I should start by explaining a little bit about the significance of this, or does the court already know what the Defense theory is and why they want this to come in?
THE COURT: Well, I have an idea as to why they want to bring it in from just looking at the exhibits. But seeing as I'm the trial Judge and not preparing the case, I don't know what the evidence is until it's presented to me at the same time the jury gets it.
MR. GOLDBERG: Okay. The Defense theory is that--well, there are in fact transfer stains in bindle no. 47, which is the bindle that contains Dennis Fung's initials and the item number on it. Therefore, it's an original bindle. This particular bindle was created on June the 13th by Mr. Fung in the morning sometime after 7:00 o'clock when, according to the door entry, he first entered into the room and obviously before 10:00 o'clock, which is when Mr. Yamauchi sampled the various evidence for the purposes of PCR testing. The bindle was then eventually booked into the evidence control unit where it's frozen, as the court has already heard in testimony, and that bindle, that particular bindle remained in the possession of the Los Angeles Police Department until August the 12th of last year when it was mailed to the Department of Justice or it was sent to the Department of Justice in an unfrozen condition. In other words, in a condition where it could thaw out and then was received by Mr. Sims of the Department of Justice and he photographed it apparently before he did any testing on the same date, and that photograph depicts the transfer stains. So we know that the transfer occurred circumstantially at some time between June the 13th, when the bindle was created, and August the 12th, when Gary Sims photographed it. The theory that the Defense is propounding appears to be twofold, that either this is evidence of swatches being rewet either intentionally or accidentally, probably more likely intentionally, and that accounts for the transfer, or there was swatch switching, again, going to the issue of planting.
THE COURT: All right. Refresh my recollection as to 47. Is that one of the Bundy walkway drops?
MR. GOLDBERG: Yes, your Honor. That's the first dot in the Bundy walkway and it was also the subject of Collin Yamauchi's PCR testing. Now, the way that the swatches were dried out is, they were put in the cabinet at the Los Angeles Police Department in the small test tubes, one of which we introduced into evidence first. In looking at the photographs that were provided--and I could be wrong because I'm looking at photographs--it appears that the test tubes may be plastic instead of glass. I'm not sure whether that's material. And I can't tell whether the smaller test tubes are the identical size and whether the opening is the same as the LAPD test tubes. The LAPD test tubes are disposable glass test tubes that are thrown away after the swatches are dry. So that's one point. The other point is that the LAPD test tubes are placed in the cabinet lying down whereas Dr. Lee's test tubes were upright.
Now, I guess there are advantages and disadvantages to both because you could argue that upright, for the purposes of contamination, that substances might be more likely to go into the test tube than lying down. But there should be a difference in air flow and there could also be a difference in terms of precipitation because if the--if the test tube is lying down, there's an effect of sealing and there is no sealing if the test tube is standing up, and that appears to be a potential material circumstance. We also talked about not being able to replicate temperature and humidity. Counsel says that the lab was air conditioned. I don't recall that testimony. He doesn't have a citation in the transcript and I don't know whether it was or not. But I don't believe it's in the record one way or the other. So trying to replicate the exact temperature, humidity cannot be done. And we do know from the generic literature from drying experiments that this can play a very important role in terms of the length of time that it takes items to dry. The next issue that we cannot determine--I'm not saying that they failed to determine this. I don't believe it can be determined or replicated--is exactly what proportion of distilled water to blood was used at the time that the swatches were collected in the field by Andrea Mazzola. And the court will recall the last two times we discussed the issue of drying experiments, that there's some case law to the effect that where there's certain variables that cannot be determined, that those variables that cannot be replicated are a basis for exclusion of the test as not being substantially similar. The most important issue as far as we are concerned next to the issue of whether or not the test tubes were standing up or lying down is the question of the swatches, the number of swatches in the test tubes. I am not positive, a hundred percent positive how the test was performed from my discussions with Dr. Lee on this point. I now believe based upon my most recent discussions, which were very brief in this courtroom, that what he did in the case of the test tube, the single test tube that contained six swatches, which was the maximum number of swatches that any test tube contained, is that he put a number of swatches in that test tube because he wanted to be able to take one out each hour and then place it on a bindle for the purposes of seeing whether or not there was a transfer, which would necessitate, of course, opening up the cabinet, going into the test tube with a forceps presumably, taking the swatch out and testing it; then the next hour, he'd take another swatch out and test it, next hour, take another swatch out and test it to see whether there was transfer. Obviously none of that was done in our particular case, the opening of the cabinet, the reventilation of the cabinet, perhaps redistributing the swatches in the course of plucking one of them out. And what also was not done is, in our particular case, in the case of 47, we have eight swatches in that particular tube. In fact, I think there were more swatches in that particular tube than any of the others, which could be a reason accounting for the differences in drying time. One possibility that is probable we believe is that swatches become stuck together in what I suppose we could call a swatch sandwich and that the meat of the sandwich as well as the bread sides that are facing the meat are not going to dry as quickly as the exterior portions of the sandwich.
THE COURT: All right. Well, Mr. Goldberg, you should assume that I've read your points and authorities. And thus far, the arguments you made I've heard--
MR. GOLDBERG: Okay.
THE COURT: --or I've read. Do you have anything additional you want to add to your points and authorities?
MR. GOLDBERG: Well, I don't think that I took--I mentioned the fact of taking the one swatch out at a time and not keeping a bunch of swatches in a condition where they would be likely to be stuck together. Now, counsel says--
THE COURT: You got the stuck together in there.
MR. GOLDBERG: What?
THE COURT: Never mind.
MR. GOLDBERG: Now, counsel says, well, some of these things, there's no evidence of one way or the other and the Prosecution has to prove it didn't happen. No, I think the obligation under the case law that we cited is for the proponent of the test to show the substantial materiality of the circumstances, and to the extent that that cannot be done, the test should be excluded. This test appears to be more speculative than the sock drying experiment test. At least with the sock drying experiment, at least some of them, it seemed like a crude attempt had been made to replicate the circumstances to the extent that the Defense felt they could be replicated. Here, the way that the test is designed by it's design does not replicate all of the material circumstances, particularly in ways that are important. Thank you, your Honor.
THE COURT: All right.
MR. SCHECK: Mr. Goldberg indicates that at least one argument the Prosecution will make and has made in its brief is the suggestion that the swatches were originally dry and then when they were put in the freezer and taken out of the freezer, condensation formed, and that accounts for the wet transfer observed at the Department of Justice and is noted in the notes of Gary Sims. That argument is irrelevant to this experiment and this discussion because the point at issue here is whether or not the swatches on the morning of June 14th when taken out of the test tubes were wet or dry. That's the point in contention. The record here indicates that Andrea Mazzola testified in August that when she assisted Dennis Fung in removing the swatches from the test tubes, that she initialed the bindles or she put her initials on at least some of the bindles. None of these bindles have her initials. That was established at this trial. We've also established at this trial through the testimony of Thano Peratis that there's 8 cc's of blood in the calibrated needle that he withdraw blood from Mr. Simpson and we've established that Collin Yamauchi used 1 cc when he made the swatch--the fitzco card and that the next business record recording is toxicology, and they measured the amount of blood in the tube, and that's 5.5 milliliters. That means at least 1.5 milliliters of blood is missing. That is part of the background here. There is wet transfer on the original bindle 47. I don't think that's in dispute by any of their experts and even from Mr. Goldberg's argument. The issue is what could have caused that wet transfer. We think that it's self-evident that frankly, if you put swatches in a test tube in this fashion, they should dry overnight. It's the testimony of Dennis Fung and Andrea Mazzola that these swatches were in fact dry. They both testified to that fact. They both testified that the procedure involved--Mazzola is very specific in the page citations I put in the brief, that they would not put them in the bindles if they were wet. Collin Yamauchi testified that he noticed nothing unusual about the bindles when he cut the swatches. He further testified that with respect to another item, he did note when he did his drawings whether or not swatches were stuck together. In fact, I know the court recalls from our split hearing that there was one set in particular where he noted the swatches were stuck together.
So it seems to me that the record as far as swatches sticking together or swatch sandwiches, presumptively based on the testimony, if there were swatches sticking together, they would be noted and when--and it was noted in the instance where it occurred, and if they weren't sticking together for--if they were sticking together for 47, it should have been noted by one of these people seems to me a fair inference from this record. Now, Dr. Lee went about doing this swatch drying experiment in a controlled fashion. The key here is that the swatches are the same swatches used by LAPD. We got them from LAPD as opposed to the sock drying experiment where nobody has been able to find the same kind of sock. And that is a material difference because when you're trying to determine drying, you need the same kind of material. So we have the same swatches. We got it from them. Dr. Lee then went about doing a controlled experiment whereby he performed a swatch collection in exactly the same fashion described by Fung and Mazzola, by putting a drop of blood outdoors on cement, letting it dry, swatching it in the same fashion they described and creating a series of outdoor swatches. Then as a control, he took a series of indoor swatches where he saturated the swatches with whole blood and he performed both experiments simultaneously to see if there would be any differences in terms of volume of blood versus distilled water and found no differences. Essentially, within the range of drying times here, what you find is that when you take swatches out of the test tubes after one hour, you see what transfers is depicted in the--it's all documented in photos. When you take swatches out after two hours, you still see some evidence, but less of wet transfer, and after three hours, none of the swatches reveals any evidence of wet transfer. They're all dry. Now, he also varied the number of swatches in the tubes in order to try to control for how they might have fortuitously been in a tube overnight. Two tubes had one swatch. One tube had two swatches. One tube had three swatches. One tube had four swatches. One tube had six swatches. He informs me that they are plastic tubes. He also varied the size of the tubes to account for differences in circulation, and they all turned out, again, to have the same pattern in terms of drying. He also put, as we indicated, different numbers in the tubes. The fact that the tubes were upright and the swatches were on top of each other is a fact which in effect favors the Prosecution since it's their contention that swatches creating a sandwich might tend to dry when they're on top of each other more slowly than if they're separated from each other. So to that extent, that difference, which we don't think is a material difference in terms of substantial similarity, favors them. Now, the record is clear from Mr. Matheson and from--
THE COURT: Is there anything in the California case law that says that if a condition more favors one particular side, I can ignore the substantial similarity requirement?
MR. SCHECK: No. But I'm just pointing out that you have to make a discretionary ruling as to whether something is substantially similar or not, whether the differences are material. We don't have to prove identity with respect to the condition. The issue here is whether or not their objections are material for purposes of these experiments. And we don't think that these differences are conceivably material for the limited purpose for which the experiment is being offered. And if they think there is a difference or they're--given this set of circumstances, they're perfectly free to do their own experiments to prove ours are wrong in terms of the range of time it takes for a swatch to dry.
Now, we'll all been to the evidence processing room, and the cabinet is described as a normal room, air condition in the lab, it's room temperature, an ordinary cabinet. That's the testimony. No special heating or cooling there. So on the assumption that it's 25 degrees centigrade, he put--Dr. Lee put his swatches in a cabinet that is substantially similar to the cabinet we see depicted in the photographs in this room. If there is some factor here unbeknownst to any of us that the evidence processing room for some reason at LAPD was unusually hot or unusually cold and it wasn't room temperature, then they're perfectly free to bring that on to prove that there's a material difference here. But I don't hear any of that and I think the record based on the testimony of everybody and our visits to the lab is that it's room temperature.
THE COURT: But don't you agree that ought to be the obligation of the proponent to establish that?
MR. SCHECK: Well, the record is that this was a room at room temperature and that--and they put it in an ordinary cabinet. So we replicated that condition and that's what the testimony will be. I think we've demonstrated that.
With respect to the argument that the proportion of blood to distilled water on the evidence swatches is unknown preventing duplication of this condition in the swatch drying experiment, Dr. Lee will testify that the actual swatches in this case and the outdoor swatches start with one drop of blood, which is approximately .05 cc's. He gets these numbers from extensive experimentation with blood drops, which he will testify to. And the range of variation ordinarily found is between .03 to .06. So unless--the testimony is clear as to the methods used by Andrea Mazzola in wetting a swatch and taking the bloodstain. Nothing in that testimony indicates that she would have saturated it with a volume of distilled water that in Dr. Lee's opinion could make any difference here, you know, 10 cc's of water in terms of this swatch drying experiment. And as I indicated, he did a control by having one set of swatches that were just saturated in blood indoors. So we tried to control for those conditions. And I think I've addressed the issue of whether the swatches were stuck together or not. I think the record is clear that they noted when swatches were stuck together, and according to them, there's no notation of swatches being stuck together here. So as far as that's concerned, they're free to argue to the jury or bring on a witness in rebuttal to say, "I forgot to tell you and I forgot to indicate in my drawings that the swatches were stuck together." And I think that that about covers it except for the fact that I think it is a critical issue as to getting a range before the jury as to when these kinds of swatches would dry and when they wouldn't and when they would leave wet transfer and when they wouldn't. And that's the limited purpose for this, and for that limited purpose, we feel that this experiment is substantially similar to the conditions at issue and that the Prosecution has not shown that there are material differences that would weigh so heavily in this equation that this highly relevant evidence shouldn't go before the jury. And it's all documented. And finally, the reason that I--this experiment was the last thing Dr. Lee did just before filing his report. So they got this immediately within days of the completion of the experiment with all his notes, all the photographs, all the documentation, and they asked him about it a number of times already, weeks before he came in here to testify.
THE COURT: All right. Thank you, counsel.
MR. GOLDBERG: May I just respond briefly, your Honor?
THE COURT: Briefly, if you must.
MR. GOLDBERG: Thank you, your Honor. First of all--and I'll just hit the issues very quickly, your Honor. The idea that there's a common drop size between 50 and 60 microliters is something that is stated in Dr.--excuse me--in Mr. MacDonell's book on blood spatter, but I am not aware of empirical data to support that proposition. If Dr. Lee is going to rely on such material, I believe that we're entitled to have that in discovery and I'm sure he will probably provide it to us upon our request. I'm just saying I'm not aware of such material. I don't want to address what we believe to be nonissues, which are the questions of Andrea Mazzola saying--of Andrea Mazzola's initials not being on the bindle because she didn't bindle virtually any of the items here and just not--neither here or not doesn't add substantial materiality of the experiment and I think we should concentrate on the issue at hand. Certainly Dennis Fung's determination that they appeared to be dry, which is what he's saying, but he did not check them, you know, by feeling them obviously is again not in any way relevant to the substantial materiality of the test, which is the legal issue that we're dealing with.
The swatches it seems very likely could have stuck together or been placed one on top of each other while they were lying down after being poured out into the--poured out into a bindle and then packaged, could have been reconfigured, and we'll never be able to replicate them and I wouldn't expect anyone to be able to replicate them. But the most important thing I would like to say, your Honor, in response to counsel's argument in relationship to the freezing and unfreezing--and this is the last point I'll make because I know the court would like to get on with the matter--the issue is being defined more narrowly by counsel than it really is. He's saying all we want to show is how long it takes swatches to dry and that's the issue and, therefore, freezing and unfreezing is not relevant. The real issue is not how long it takes swatches to dry. No one cares about that. The issue is how do transfers occur in bindles. That's the issue that the Defense cares about. That's the issue that the parties are going to be arguing about. That is the issue that this experiment theoretically is supposed to provide additional evidence to the jurors about.
And, therefore, freezing and unfreezing, everything that happened to these swatches between the time that the bindle was created and the time that the transfer was noticed is relevant. And no one is aware of what the effect is on freezing and unfreezing, because a lot of the issues that have been brought up in this case, no one cares about. They've haven't been investigated in the scientific literature. There are no experiments that have been done. So we are simply trying to make guesses well, this could happen, this might happen, maybe if you did it this way, it would be different or more favorable to one side or the other. The point is, we don't know, and this experiment doesn't tell us because it doesn't replicate substantially the material circumstances with respect to these items.
THE COURT: All right. Thank you, counsel. All right. I've reviewed the points and authorities that were filed by both sides and heard the substantial argument. The issue before the court is whether or not the conditions of the experiment as offered substantially replicate the conditions of the swatch drying that was accomplished in this case. The court is aware from having reviewed the boards that the Defense is going to offer photographs of the swatch bindles that are going to indicate some staining within, which is going to indicate that there was some--that the swatches were, in fact, wet at some point in time while they were within those bindles and the Defense can prove that by those photographs. I'm concerned that the temperature has not been documented and established that the humidity, which would have an impact on the drying time, has not been documented or established, that we have not determined the blood or liquid content of these swatches nor the particular drop size. I'm also concerned about the upright nature of the test tubes given the--for all the humor about the sandwich problem, it is an issue that I'm not clear on. I therefore find that there is insubstantial similarly, and the objection will be sustained. All right. Let's have the jury.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Ladies and gentlemen, why don't you have a seat. All right. Let the record reflect we've been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: I don't know quite how to tell you this. You have a rather unusual distinction as a sequestered jury. As you know, you've been sequestered since mid-January, and as of yesterday, you have surpassed the amount of time that the mansion jury, if you recollect from 20 years ago, was in sequestration. So some kind of a dubious record I'm sure. In talking to some of you individually and in observing you, I know that you are very tough and tenacious group of people. I know that you've made a commitment to see this matter through and I know that you are disappointed with the delays that we've had, but I'm sure after I've tried to explain them to you, you understand that there's certain things that just have to be taken up out of your presence and that take a substantial amount of time unfortunately. I want you to know that I've expressed again my concern to the lawyers for both sides that we move this case along at a little faster pace. Before me right now, there is a very significant legal issue that I'm going to have to spend a considerable amount of time considering outside your presence, but I'm going to be doing that this Friday afternoon and I anticipate working on these matters over the weekend both Saturday and Sunday so that we don't take up jury time for those matters. I want you to know we're very cognizant of the demands that we've made upon you. I know that this has not been an easy experience for any of you. Probably fun for about the first eight hours. Then after that, it became real tough. But each of you has shown us by your endurance and by your cheerfulness every day when you come in here that you're still with us. But I want you to know we appreciate the burden we've placed upon you and the demands and restrictions that we've placed upon you. This is much wore than being in the army I'm sure from your perspective. But I want you to know that each and every person involved in the Prosecution and the Defense in this case appreciates your sacrifices and they will keep that in mind in the future as they prepare their examinations of witnesses and will hopefully keep their examinations to what is absolutely necessary. All right. Having said that, also, Miss Clark, one of the lead Prosecutors, is not available today. However, the Prosecution has decided to proceed in her absence, and she can read the transcript and/or see it on TV to catch up with us. All right. Dr. Lee, would you resume the witness stand, please.
DR. LEE: Yes, your Honor.
Henry C. Lee, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Let the record reflect that Dr. Henry Lee--
DR. LEE: Good morning.
THE COURT: --is again on the witness stand undergoing direct examination by Mr. Scheck. All right. Good morning again, Dr. Lee.
DR. LEE: Good morning.
THE COURT: All right. Doctor, you are reminded, sir, that you are still under oath. Mr. Scheck, you may continue with your direct examination.
MR. SCHECK: Yes. Thank you, your Honor. And I hope to conclude the direct examination. Good morning, ladies and gentlemen of the jury.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Dr. Lee--
THE COURT: Excuse me, Mr. Scheck. Miss Moxham, our court reporter, indicates that she's probably able to go through to the noon hour.
MR. SCHECK: Great. Your Honor, with permission of the court, I'd like to take out a board.
THE COURT: You may. Mr. Harris.
MR. SCHECK: This would be Defense next in order, 1356, and this board is entitled Rockingham residence, front foyer.
THE COURT: 1356, eight photographs.
(Deft's 1356 for id = board)
THE COURT: All right. Dr. Lee, you may step down to see that.
DR. LEE: Thank you, your Honor.
MR. SCHECK: Dr. Lee, were these photographs taken on the June 25th visit that you previously have described to us at Mr. Simpson's home?
DR. LEE: Yes.
MR. SCHECK: All right. And could you please, starting with the photograph on the upper left-hand corner of 1356, entitled "Front entrance," describe for us what is shown on this board?
DR. LEE: In June 25th, 1994, afternoon, approximately 4:00 o'clock, I took this photograph (Indicating). Shows a overall view of this front entrance door, enter the residence.
MR. SCHECK: Dr. Lee, at that time, did you perform any presumptive tests on the doorknobs and lock mechanisms and light switches in this area?
DR. LEE: Yes, sir.
MR. SCHECK: What did you do and what were the results?
DR. LEE: I did that chemical presumptive test, generally refer o-tolidine test, which will react with heme or any peroxidase, a colorless reagent will turn to a blue color. If that turn to blue, indicates certain result. If no reaction, did not turn blue, means absence of blood.
MR. SCHECK: What were the results of your test--did you test anything on the doorknobs here?
DR. LEE: I test both outside, inside doorknob, door hinge, other area, the light switches and all this area, metal surface, the door side (Indicating).
MR. SCHECK: Were the results negative?
DR. LEE: The result--
MR. GOLDBERG: Objection, your Honor, to presumptive blood testing.
THE COURT: Overruled.
DR. LEE: All my test result were negative.
MR. SCHECK: Did you perform--did you examine the staircase going upstairs?
DR. LEE: Yes, sir, I did.
MR. SCHECK: And what did you do and what did you find?
DR. LEE: I use a magnify glass, look through every steps. Any step have a discoloration or brownish color or any other indication, I will perform a test.
MR. SCHECK: What results?
DR. LEE: All negative.
MR. SCHECK: Would that be an indication that there was no blood of any kind that you could detect in your examination of the stairs leading up to Mr. Simpson's bedroom?
DR. LEE: The area I tested, I did not find any blood.
MR. SCHECK: Did you do something--did you perform a--the same examination of the hallway that leads into Mr. Simpson's bedroom?
DR. LEE: Yes.
MR. GOLDBERG: Objection as to date, your Honor.
MR. SCHECK: This is all on June 25th I take it?
DR. LEE: Yes.
MR. SCHECK: And what were the results there?
DR. LEE: Negative.
MR. SCHECK: Now, call your attention to the foyer floor photograph. Could you tell us what that is?
DR. LEE: Foyer floor photograph is depict a center portion of the front enter foyer--foyer. I have to point it out. This is not an imperfection of the floorboard. It's a photograph provide to me by Mr. Shapiro. That's a original photograph was taken by LAPD. I use that photograph to locate the floorboard. Floorboard have different number of some type of--like nail-type of object so I can identify this area (Indicating). So I was subsequently able to locate the area LAPD tested.
MR. SCHECK: Now, this is--if one gets close to this photograph, one can detect that this is an evidence card indicating item no. 12, and it shows three blood drops in that area; is that correct?
DR. LEE: Yes, sir.
MR. SCHECK: And so this photograph then I guess you're saying is your effort to locate exactly where that was on the floor as you saw it on June 25th?
DR. LEE: Yes.
MR. SCHECK: Is that right?
DR. LEE: Yes.
MR. SCHECK: Okay. Please proceed.
DR. LEE: Upon checking the area, I was able to identify the three locations. The three location apparently been swabbed and created a swab pattern. I was able to recognize that. Compare with the photograph, I was able to identify the location.
MR. SCHECK: Did you locate any other reddish stains that were consistent with bloodstains in that area?
DR. LEE: Yes, sir.
MR. SCHECK: Are those depicted on the remaining photographs?
DR. LEE: Yes.
MR. SCHECK: Could you please describe that?
DR. LEE: Subsequently, I noticed there are three additional stain, this stain 1, stain no. 2, stain no. 3. This is a close-up view. The last column top picture shows this close-up view of this particular stain (Indicating).
MR. SCHECK: So altogether, if one counts the three stains identified by LAPD as item no. 12 and the stains that you found, how many bloodstains were in this area altogether?
DR. LEE: Six.
MR. SCHECK: Were there any differences that you could detect between the--in terms of size with respect to these stains?
DR. LEE: The three which are already swabbed, one I was able positively determine the size because the periphery cross still remain. Two other, as you can see depict in this photo, been swabbed around, swabbed around. The diameter of this swabbed-around area is approximately half inch. The original blood drop size is going to be much smaller than what been swabbed because when you drop a drop of stain, if you try to swipe it, you going to create bigger area. The three I examed, I was use a scale was able to determine two smaller one, is one 15, one of 15 in diameter. Other one is one of the 10 inches, one of 10 inches, 10th of an inch, 15th of an inch. So it is relative small bloodstain (Indicating).
MR. SCHECK: Now, are some of these bloodstains consistent with vertical droplets?
DR. LEE: They're all consistent with droplets. It's not a regular blood drop. It's a droplet, smaller drops.
MR. SCHECK: So some are bigger, some are smaller?
DR. LEE: Yes.
MR. SCHECK: Would the smaller stains--would any of these be consistent with what is known as a cast-off pattern?
DR. LEE: Yes.
MR. SCHECK: And so if one had a superficial cut on the side of a finger and shook it in the fashion that I'm doing--
MR. SCHECK: Let the record reflect that I'm shaking my hand down.
MR. SCHECK: --does that create cast-off pattern?
DR. LEE: Yes.
MR. SCHECK: And would that be consistent with what you found here?
DR. LEE: Yes.
MR. SCHECK: Could the pattern that you found here be consistent with a superficial cut on the side of the finger?
DR. LEE: It consistent with a small volume of blood.
MR. SCHECK: Is the pattern that you see here consistent with a major cut?
DR. LEE: No.
MR. SCHECK: All right. Your Honor, we're finished with this board.
THE COURT: All right.
MR. SCHECK: Dr. Lee, before I move on to the next series of boards, I'd like to ask you briefly some questions about the Bronco. Did you have an opportunity to personally examine and look at the Bronco?
DR. LEE: No.
MR. SCHECK: Could you do a reconstruction of the Bronco?
DR. LEE: I cannot do a reconstruction because I did not have a direct examination, observation of original condition.
MR. SCHECK: Did you have an opportunity to look at some pictures of the blood in the Bronco?
DR. LEE: Yes, I did. I look some of the photographs sent to me.
MR. SCHECK: What is the pattern of the bloodstains you saw in those photographs?
THE COURT: It's vague.
MR. GOLDBERG: No foundation.
THE COURT: It's vague.
MR. SCHECK: Could you, from looking at those pictures, characterize what kind of bloodstain you saw?
MR. GOLDBERG: Still vague, overly broad, no foundation.
THE COURT: Date and time, which photos, which part of the Bronco.
MR. SCHECK: Which photos did you look at?
DR. LEE: How do I know?
MR. SCHECK: Well--
DR. LEE: I don't know.
MR. SCHECK: Did you look at photos of the door, the--
MR. GOLDBERG: Leading.
MR. SCHECK: --driver's door--
THE COURT: Overruled.
MR. SCHECK: --of the Bronco?
DR. LEE: Yes. I look at some photo appears to depict a door.
MR. SCHECK: All right. Did you look at photos of the console?
DR. LEE: Yes. I did look at picture depict portion of the console.
MR. SCHECK: Dr. Lee, what is a smear?
DR. LEE: A smear is a contacts with a movement.
MR. SCHECK: All right. Were the pattern of bloodstains that you saw depicted in the photographs on the door and the console, were they smears?
DR. LEE: Appear to be consistent with smear.
MR. SCHECK: To the extent you could tell from the photographs, what kinds of smears are they in terms of the saturation?
DR. LEE: I only--
MR. GOLDBERG: Vague, your Honor, no foundation.
THE COURT: Sustained.
MR. SCHECK: From the photographs, could you make a judgment as to whether these were heavily saturated smears or slight smears?
MR. GOLDBERG: Still vague. No foundation.
THE COURT: Overruled.
DR. LEE: It consistent with light smear.
MR. SCHECK: Now, take, for example, the console. What kind of surface is that?
DR. LEE: I don't know.
MR. SCHECK: Well, what is a nonabsorbent surface?
MR. GOLDBERG: Your Honor, this is leading.
THE COURT: Sustained.
MR. SCHECK: What is a nonabsorbent surface?
THE COURT: In this context, it is.
MR. SCHECK: Is a plastic--could you describe--in terms of absorbencies, can you characterize categories of surfaces?
DR. LEE: Yes.
MR. SCHECK: What are they?
DR. LEE: Well, you can put in two general category. Some are absorbent, some not absorbent. Of course, there are some in-between. A surface like plastic generally refer nonabsorbent surface. A surface with a tissue, cotton, those clothes is referred as an absorbent surface.
MR. SCHECK: I ask you to assume that the console that you saw in that photograph is a plastic surface, nonabsorbent surface. Based on the photographs, can you make an estimate as to the volume of blood that it would take to create the smears, the light smears you saw on that surface?
MR. GOLDBERG: No foundation, speculation.
THE COURT: I think it's vague because there are separate smears on--appear to be on the console.
MR. SCHECK: Well, you saw a series of smears on the console?
MR. GOLDBERG: Your Honor, also no foundation as to which photos.
THE COURT: Sustained.
MR. SCHECK: All right. Have you seen photographs of the console with--
MR. GOLDBERG: Leading.
MR. SCHECK: I haven't led him.
THE COURT: Proceed.
MR. SCHECK: --with evidence tags on them provided to you from the LAPD?
DR. LEE: Appear to be some photographs provide to me by the Defense counsel.
MR. SCHECK: All right. Now, from those photographs, what can you--can you tell precisely what the volume of blood is on those surfaces?
MR. GOLDBERG: Still vague, no foundation.
THE COURT: Sustained.
MR. SCHECK: Were these photographs of the console?
DR. LEE: Yes.
MR. SCHECK: Series of smears on the console?
DR. LEE: Yes.
MR. SCHECK: From those photographs, can you tell us precisely how much blood there was on that console?
MR. GOLDBERG: Vague. No foundation, speculation.
THE COURT: Sustained. Foundation, counsel.
MR. SCHECK: From the photographs you saw--
THE COURT: Counsel, as soon you say--we're not getting past the photographs. What photographs?
MR. SCHECK: All right. Did you see photographs with evidence markers labeled 30, 31?
MR. GOLDBERG: Leading.
THE COURT: Overruled.
DR. LEE: Uh, I think I saw a photograph in that nature.
MR. GOLDBERG: Motion to strike. Speculation.
THE COURT: Overruled.
MR. SCHECK: Did you see additional photographs taken on August 26th that had numbers 303, 304, 305?
THE COURT: Counsel, these photographs are in evidence on boards. Why don't we just show them to Dr. Lee and say, "Are these the photographs you saw? Based upon what you saw there as to this area, can you tell us how much blood is there?" Otherwise, the jury has no idea what we're talking about.
MR. SCHECK: Well, I'm trying to be expeditious, your Honor. I think we've all seen these photographs.
THE COURT: Well, maybe Mr. Blasier can find it for you.
MR. SCHECK: We will move on to something else, your Honor. I thought this was self-evident, but in my desire to be expeditious--
MR. GOLDBERG: Your Honor, I make a motion to strike counsel's comment.
THE COURT: Yes. Yes. Thank you.
(Brief pause.)
MR. SCHECK: Your Honor, I would ask that this board be marked as Defendant's 1357 entitled, "Bloodstains on evidence bag."
THE COURT: So marked.
(Deft's 1357 for id = board)
MR. SCHECK: Well, better yet, before we do that, your Honor, with the court's permission, I'd like to display 1167 and 1087. 11--1087 is photograph of the console with tags 30 and 31 and 1167 is the August 26th photographs of the stains on the console.
(Brief pause.)
MR. SCHECK: Dr. Lee, I show you first 1087. Is that the photograph we were referring to before with the evidence tags 30 and 31 taken on June 14?
DR. LEE: Yes.
MR. SCHECK: I'd like to show you the next photograph, which is 1167. Is that the console picture from the August 26th search with the numbers 303, 304, 305 and 306 on it, the ones we were talking about before?
DR. LEE: Yes.
MR. SCHECK: All right. Now, Dr. Lee, with respect to these photographs, going back to the question I was asking you before, I'm asking you to assume--you did not actually inspect the physical--the console itself?
DR. LEE: No, I did not.
MR. SCHECK: Couldn't get to see the Bronco itself?
DR. LEE: No.
MR. GOLDBERG: Wait a minute. Couldn't--motion to strike that.
MR. SCHECK: Did not see the Bronco itself.
THE COURT: He's rephrased the question. Proceed.
MR. SCHECK: Did not see the Bronco itself?
DR. LEE: No, I did not.
MR. SCHECK: All right. So you can only base this on the pictures?
DR. LEE: Yes.
MR. SCHECK: And the assumption that this is a nonabsorbent plastic surface that I'm asking you to make?
DR. LEE: Also assume the color is a true representation of the original color.
MR. SCHECK: In the photographs?
DR. LEE: Photograph.
MR. SCHECK: Based--given those limitations, based on what you see, can you tell precisely how much blood is on the console?
MR. GOLDBERG: No foundation, calls for opinion, speculation.
THE COURT: Overruled.
MR. GOLDBERG: May we approach?
THE COURT: No.
DR. LEE: I cannot tell you exactly volume just by looking these two pictures. There are methods. If I have the console, I can determine the volume.
MR. SCHECK: Can you give us from the pictures an estimate as to terms of small or large the kind of volume that would be required to make those kinds of smears that you observed in the photograph given the limitations that have been described?
MR. GOLDBERG: Vague, no foundation, speculation, conjecture.
THE COURT: Vague, small or large.
MR. SCHECK: Well, could those smears be made with less than 1 cc of blood?
MR. SCHECK: Same objection, your Honor.
THE COURT: Overruled.
DR. LEE: Yes. Could be made much less than 1 cc.
MR. SCHECK: Thank you. Now, turning to what is 1357, the board "Entitled bloodstain on evidence bag." Doctor, I would ask you to come off the witness stand and describe for us--could you first tell us what are these pictures and where were they taken?
DR. LEE: This board consist of four pictures which was taken February 18, 1995, while I was in Albany medical center, exam some evidence sent to me by LAPD.
MR. SCHECK: The picture on the upper left-hand corner of this board entitled "Bloodstains on outside of paper bag, item 78, boots," what does that show?
DR. LEE: This is a view of a portion of the brown paper bag which have a labeling, numbering outside of the initial "CY," and some lettering. It describe to me this bag--
MR. GOLDBERG: Seems to call for hearsay.
THE COURT: Sustained. Ask a question.
MR. SCHECK: All right. Based on the numbers there and the property report records you had, what item did this bag correlate with?
MR. GOLDBERG: No foundation.
THE COURT: Overruled.
DR. LEE: Item 78, boot.
MR. SCHECK: Ron Goldman's boots?
DR. LEE: Yes.
MR. SCHECK: What are the--what observations can you make based on this photograph?
DR. LEE: This photograph at the opening of this paper bag near the lettering A-774, here I see a contact smear approximately four inches long. The ruler where indicates shows the length of this contact smear (Indicating).
MR. SCHECK: What is the photograph on the bottom left-hand side here?
DR. LEE: Bottom left-hand side shows a close-up view of this contact smear area.
MR. SCHECK: The photograph--I'm sorry. Is there anything else that we should observe about the close-up of this what you have called--why do you call this "Wet blood transfers"?
MR. GOLDBERG: No foundation for that.
THE COURT: Sustained.
MR. SCHECK: All right. The board contains the phrase "Wet blood transfers" in relation to this picture. Could you please explain that?
DR. LEE: When I exam this stain carefully, it's a contact smear made of blood. This blood has to be in wet stage to get transfer. Once it dry, you cannot transfer anymore. So that's why I refer a close-up view of a wet blood transfer.
MR. SCHECK: And let me see if I understand this. You're saying that what has to be wet in order to cause this kind of transfer stain?
DR. LEE: Yes, sir.
MR. SCHECK: The object that is making--
DR. LEE: The object, the surface of items on either a glove or any object have some wet blood touch this brown paper bag cause this transfer with the motion.
MR. SCHECK: And what is the photograph on the upper right-hand corner of this board entitled, "Bloodstains inside paper bag, item 78?" What does that represent?
DR. LEE: The paper bag when I look at the inside, I see wet transfer inside of the bag. The mechanism of this transfer remains the same. Has to be a wet surface, wet object with some wet blood--I'm sorry--a surface object with some wet blood contact this brown paper bag cause such transfer.
MR. SCHECK: And what is the picture, the lower right hand that says close-up wet blood transfers?
DR. LEE: The close-up shows some of the blood has soaked through other side to the exterior surface.
MR. SCHECK: All right. Now, is it a good procedure to put an object such as a boot that is still wet with blood inside a paper bag?
MR. SCHECK: Assumes facts not in evidence.
THE COURT: Overruled.
DR. LEE: I cannot say what LAPD procedure. I did not review it. I've not come here to criticize anybody. My own procedure, if I collect, I don't put an object wet.
MR. SCHECK: And why wouldn't you put a wet object into such a paper bag?
DR. LEE: Because a transfer, you change the pattern. If an object have two or three different type of blood grouping, because this transfer, now you may resolve some false reading.
MR. SCHECK: Is that--could create mixtures?
DR. LEE: Yes.
MR. SCHECK: Where there weren't originally mixtures?
DR. LEE: Yes.
MR. SCHECK: Is that what's sometimes known as cross-contamination?
DR. LEE: Yes.
MR. SCHECK: I think we're finished with this board.
MR. SCHECK: Doctor--
THE COURT: Mr. Scheck, you put up another board?
MR. SCHECK: Yes. This would be 13--
THE COURT: 58.
MR. SCHECK: --58, and this board is entitled, "History of item 47 blood drop on Bundy walkway."
(Deft's 1358 for id = board)
MR. SCHECK: Now, Dr. Lee, could you please describe for us this board starting with the picture on the upper left-hand side entitled, "Item 47 overall view." What is that photograph? What does it show?
DR. LEE: Items 47, overall view, is a crime scene photograph taken by LAPD photographer subsequently provide to me by Defense team which depicts overall view of walkway with some number plate indicate certain locations.
MR. SCHECK: The photograph immediately to the right, what is that?
DR. LEE: This photograph also provide by the Defense team. It shows a close-up view of this 112, photo plate no. 112. That's a blood-like drop on the walkway, the Bundy walkway.
MR. SCHECK: Now, on the bottom left-hand side of the board, there is a work sheet entitled, "Collection note, June 13th, 1994." Could you please describe for us what this is?
DR. LEE: This is a document which provide by you, indicates a collection note.
MR. GOLDBERG: Well, no foundation for personal knowledge, your Honor.
THE COURT: Sustained.
MR. SCHECK: All right. Were you provided the collection notes made out by Dennis Fung and Andrea Mazzola as well as serology notes made by Collin Yamauchi as part of the discovery process in this case?
MR. GOLDBERG: Hearsay, calls for conclusion, no personal knowledge.
THE COURT: Overruled. Were you provided with such documents?
DR. LEE: Yes, sir.
THE COURT: Next question.
MR. SCHECK: Calling your attention to this collection note of June 13th--
MR. GOLDBERG: No foundation through this witness.
MR. SCHECK: I think we've already had testimony on this, your Honor.
THE COURT: Overruled.
MR. SCHECK: What is this note?
DR. LEE: It appear to be a documentation which shows the collection, the location of each stain, where they collected and item number, property item number and photograph.
MR. SCHECK: Your Honor, with permission, I would like to take one of yellow marker to just highlight item 47 on this particular note.
THE COURT: You may.
MR. SCHECK: (Indicating).
MR. SCHECK: Dr. Lee, does this indicate--well, this photograph of, referring now to item 47, close-up photo 112, this does not contain an id photo with scale and id?
DR. LEE: No.
MR. GOLDBERG: Your Honor, this has been gone over.
THE COURT: Sustained. The picture pretty much speaks for itself too, counsel.
MR. SCHECK: Yes.
MR. SCHECK: Were the number of swatches used to collect the stain counted or recorded on this note?
DR. LEE: No.
MR. GOLDBERG: Your Honor, no foundation.
THE COURT: Overruled. It's not there, but we went over this on cross-examination of Mr. Fung.
MR. SCHECK: I understand. Just moving along and refreshing--
THE COURT: No. We don't need to refresh, counsel.
MR. SCHECK: No.
MR. SCHECK: Dr. Lee, in your opinion, would it be your practice, if you were to take swatches in this fashion, to count and record the number?
MR. GOLDBERG: Objection. Not relevant.
THE COURT: Overruled.
DR. LEE: I only can testify our procedure. I'm not here to criticize anybody else procedure. It's a good practice to count the number.
MR. SCHECK: And now call your attention to a serology note of June 19th, 1994 of Collin Yamauchi and call your attention to the item 47. Have you reviewed this, Dr. Lee?
DR. LEE: Yes.
MR. SCHECK: All right. And are you familiar with the--
THE COURT: All right. The record should reflect that counsel is highlighting that portion on that lower right-hand photograph.
MR. SCHECK: Are you familiar with the drawings made by Mr. Yamauchi of the swatches he found in the bindle for item no. 47 on the morning of June 14th?
DR. LEE: Yes.
MR. SCHECK: All right. And with respect to--
MR. GOLDBERG: Your Honor, this has been the subject of previous testimony. I object under 352.
THE COURT: Overruled.
MR. GOLDBERG: And no foundation.
THE COURT: Overruled. I haven't heard the question.
MR. SCHECK: With respect to this diagram on the area indicating "Samples remaining"--
THE COURT: Diagram, counsel?
MR. SCHECK: I'm sorry?
THE COURT: You're talking about Mr. Yamauchi's serology report, correct?
MR. SCHECK: Yes.
THE COURT: You said "Diagram."
MR. SCHECK: I'm sorry.
MR. SCHECK: In the report, there's a box indicating "Sample remaining." All right?
DR. LEE: Yes, sir.
MR. SCHECK: How many swatches are indicated there as remaining?
MR. GOLDBERG: Same objection.
THE COURT: Sustained. The document speaks for itself, counsel.
MR. SCHECK: Well, does the document indicate that seven swatches are remaining?
MR. GOLDBERG: Leading. Same objections.
THE COURT: Overruled.
DR. LEE: Yes.
MR. SCHECK: In terms of the diagram itself, how many boxes do you see there?
DR. LEE: I counted appear to be eight.
MR. SCHECK: Is there a notation here--
MR. GOLDBERG: Your Honor, I'm going to object to any further questions on this document. It speaks for itself.
THE COURT: Speaks for itself, counsel.
MR. SCHECK: Well, your Honor, this is foundation and I'm just moving on.
THE COURT: Counsel, we've seen it. You cross-examined Mr. Yamauchi extensively on it. What this witness happens to see there, the jurors have seen the document, the document is here in front of them.
MR. SCHECK: Yes.
THE COURT: Let's proceed.
MR. SCHECK: Well, I'll move expeditiously.
MR. SCHECK: Is there one section there indicating that one of those swatches was sampled?
MR. GOLDBERG: Your Honor, that's improper.
THE COURT: Sustained.
MR. SCHECK: Next board, please. Your Honor, can we approach for just a second?
THE COURT: Nope. Proceed.
MR. SCHECK: This board would be 1359. It's entitled, "History of item 47, blood drop on Bundy walkway."
(Deft's 1359 for id = item 47, blood)
MR. SCHECK: Dr. Lee, on the left-hand side of this board, there's a--something in--there's a report indicating work sheet by Mr. Yamauchi that's entitled "Serology note of July 21st, 1994." Do you recognize this as a summary sheet indicating a transfer of swatches?
MR. GOLDBERG: The document speaks for itself.
THE COURT: Overruled.
DR. LEE: Yes.
MR. SCHECK: What does it indicate?
MR. GOLDBERG: No foundation, calls for hearsay.
THE COURT: Sustained. The document speaks for itself, counsel.
MR. SCHECK: All right. There's a section here indicating--
MR. GOLDBERG: Same objection.
THE COURT: Overruled.
MR. SCHECK: "Daytime sample prepared 7-1994, size, description, prepared sample" and a diagram of five swatches and then the next box indicating date sent July 24th, 1994. Do you see that.
MR. GOLDBERG: Your Honor, same objections. May we approach?
THE COURT: Overruled. No, neither of you. Now, proceed.
MR. SCHECK: And there's another box here indicating "Sample remaining size and description" and that has two swatches, correct?
MR. GOLDBERG: No foundation, calls for hearsay, speculation.
THE COURT: Overruled. Counsel is directing the witness' attention to a particular part of this document. I assume there's a question coming after this.
MR. SCHECK: Yes.
MR. SCHECK: Dr. Lee, now, on the right-hand side of that diagram, there's a picture, indicates five swatches, July 27th, 1994, Cellmark. Did you take that picture?
DR. LEE: Yes.
MR. SCHECK: Could you please explain the facts and circumstances that led you to take that picture?
DR. LEE: On July 27th, 1994, I have a call order, receive that document by the Defense team to appear in Cellmark to observe the testing and to remove 10 percent of the sample from each item.
MR. GOLDBERG: Narrative.
THE COURT: Overruled.
MR. SCHECK: When you arrived at Cellmark, did you have an opportunity to see the samples unpacked?
DR. LEE: This particular sample, yes.
MR. SCHECK: All right. Did you have an opportunity to photograph them?
DR. LEE: Yes.
MR. SCHECK: As they were unpacked?
DR. LEE: Yes.
MR. SCHECK: What is that photograph we see there?
DR. LEE: This photograph depicts on July 27 when this sample, no. Item 47, with the letter H unpacked, inside contents, five swatches. Subsequently, we label together with the Cellmark scientist HA, HB, HC, HE and HD to indicate this H that's from 47 and five separate swatches, A, B, C, D, E.
MR. SCHECK: All right. Did you subsequently receive a photograph that was taken on August 12th, 1994 at the Department of Justice of two swatches from item 47 and the bindle in which it arrived?
DR. LEE: Yes.
MR. SCHECK: Is that depicted at the bottom right-hand side of this photograph?
DR. LEE: This photograph depicts a portion view of a manila envelope with item 47, however, with a letter B as in boy. Inside contents, two swatches.
MR. SCHECK: Have the next board, please. This would be 1360. Your Honor, just for the record, I'm going to highlight the item 47 on the work sheet.
THE COURT: Yes.
MR. SCHECK: (Indicating.)
THE COURT: All right. This will be 1360.
(Deft's 1360 for id = board)
MR. SCHECK: Now, Dr. Lee, do you have--you're familiar with the kinds of swatches used by the Los Angeles Police Department for creating the swatches in this case?
DR. LEE: Yes.
MR. SCHECK: Have you actually examined samples of swatches provided to you by them?
DR. LEE: Yes.
MR. SCHECK: Are you familiar with the material?
DR. LEE: Yes.
MR. SCHECK: Do you have experience in how long it would take one of these swatches that had distilled water and blood on it in the fashion described by Miss Mazzola in terms of swatching blood? Do you have some experience in assessing the time it takes such a swatch to dry?
MR. GOLDBERG: Your Honor, I object. May we approach?
THE COURT: Overruled.
DR. LEE: I have experience swatch, use similar kind of cotton swatch myself. My people or my student, we determine the time required for a swatch to dry. I don't know what Miss Mazzola--I did not observe her to swatch it. So I cannot say I have experience with her.
MR. SCHECK: Uh-huh. Now--
MR. GOLDBERG: Nonresponsive, your Honor. Motion to strike.
THE COURT: Overruled.
MR. SCHECK: Now, in your opinion, how long would it take one of these swatches to dry if it were put into a test tube in a wet state and the test tube was open and the test tube--and the environment was a cabinet at room temperature?
MR. GOLDBERG: Your Honor, no--
THE COURT: Sustained. Counsel--counsel, counsel, be careful here.
MR. SCHECK: Okay.
MR. GOLDBERG: Your Honor, may we approach?
THE COURT: No.
MR. SCHECK: In your opinion, how long would it take--
THE COURT: Try again. Move on. Move on. Move on.
MR. SCHECK: Ask you to assume that a swatch, a wet blood swatch was put into a test tube and left there for 12 hours, 10 to 12 hours--I'll withdraw that question for the time being. Dr. Lee, I call your attention now to what has been marked as Defense 1360, a board entitled, "History of item 47, blood drop on Bundy walkway, blood swatches and bloodstain patterns of wet transfers." Dr. Lee, could you describe what the first photograph in the middle of this board is?
DR. LEE: The first photograph depicts on the board upper row is Cellmark. At that time, we photograph the five swatches.
MR. SCHECK: And what is the photograph in the lower left-hand side here?
DR. LEE: Second photograph is a close-up view of the DOJ photograph, shows the two swatches. In addition, there are some reddish color imprint on this so-called bindle, paper. Actually it's a piece of paper.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Incidentally, Dr. Lee, what procedures do you use to dry swatches with blood and how long in your experience does it generally take?
MR. GOLDBERG: Not relevant under Kourish and also, your Honor--
THE COURT: Sustained. Sustained.
MR. SCHECK: Now, Dr. Lee--
THE COURT: You can ask him what's indicated by this photograph.
MR. SCHECK: I'm going to get to that, your Honor, but I think--well, we'll discuss this later.
THE COURT: Proceed.
MR. SCHECK: Now, Dr. Lee, in the course of reviewing discovery in this matter, did you have occasion to review notes made by Gary Sims at the Department of Justice with--with respect to his observations of item no. 47, the bindle and the swatches that he received on August 18th, 1994?
MR. GOLDBERG: Calls for hearsay, no foundation.
THE COURT: Overruled. The fact he observed something doesn't call for hearsay. Want an answer to that question, Mr. Scheck?
MR. SCHECK: Yes. I thought he said yes.
DR. LEE: Yes. Thank you, your Honor.
THE COURT: You are welcome.
MR. SCHECK: And are the notes that Mr. Sims made with respect to his observations the kinds of materials that an expert in your field ordinarily relies upon in forming scientific opinions?
DR. LEE: Yes.
MR. SCHECK: And I'd like to--
(Brief pause.)
MR. SCHECK: Your Honor, for the record, I'll ask to mark these two pages 1360-A, document of two pages.
THE COURT: All right. 1360-A.
(Deft's 1360-A for id = two-page document)
MR. GOLDBERG: May I take a look at that, your Honor?
THE COURT: Sure.
MR. GOLDBERG: I think I've seen it. There's some markings on this, your Honor.
MR. SCHECK: I'll get a redacted copy form.
THE COURT: All right. Thank you.
MR. SCHECK: Dr. Lee, I show you this note. Now, are you familiar with it?
DR. LEE: Yes.
MR. SCHECK: All right. Your Honor, with your permission, I'd like to read the note and ask Dr. Lee if the observations here are consistent with what he sees in the photograph.
MR. GOLDBERG: Calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: Well, does--do these notes reflect observations by Mr. Sims that are consistent with what you see in this photograph?
MR. GOLDBERG: Calls for conclusion. Same objection.
THE COURT: Overruled.
DR. LEE: Yes.
MR. SCHECK: All right. Is there a record here of the wet transfer that you just pointed out to the jury and a description of it?
THE COURT: Sustained. Sustained. That's hearsay.
MR. SCHECK: On the second page of this document, does Mr. Sims indicate with respect to item 49--
MR. GOLDBERG: Your Honor, same objection.
THE COURT: Sustained. Mr. Cochran.
MR. SCHECK: I call your attention now to the photograph entitled, "New haven," on this board. Could you please describe what that is?
DR. LEE: This is a photograph which I took at new haven on April 2nd, 1995 when finally the original bindle, so-called bindle--actually it's a paper packet--sent to me. I photograph that. Shows one swatch left.
MR. SCHECK: Now, I ask you to examine this photograph which I'd like to mark 13--
THE COURT: 60.
MR. SCHECK: 60-C. Small photograph.
THE COURT: What was B?
MR. SCHECK: I think a were the two pieces of paper for Mr. Sims, and I'd ask that this photograph be marked as B.
THE COURT: B.
(Deft's 1360-B for id = photograph)
THE COURT: Madam reporter, how's your paper supply?
THE COURT REPORTER: Fine.
THE COURT: All right.
MR. SCHECK: Dr. Lee, what is 1360-B?
DR. LEE: 1360-B is a photograph which I took, shows the interior surface of this paper packet or bindle which, with my ruler, indicates the presence of some wet transfer imprints.
MR. SCHECK: With the court's permission, I'd like to put this up for a minute on the elmo.
THE COURT: Yes.
(Brief pause.)
THE COURT: I think we're slightly out of focus there, Mr. Harris. Thank you.
MR. SCHECK: Your Honor, I'd ask that the witness be allowed to use the telestrator and focus on the two on the top.
THE COURT: Put an arrow on the items he notes.
MR. SCHECK: Dr. Lee, using the telestrator, could you point out the stains of interest and please direct Mr. Harris on--
DR. LEE: Basically shows the four transfer imprint.
MR. SCHECK: All right. Could we print this out as 1360--
THE COURT: C.
MR. SCHECK: C.
(Deft's 1360-C for id = printout)
THE COURT: All right. Let's clear the telestrator. Mr. Scheck.
MR. SCHECK: Dr. Lee, you've now focused in on two of these transfers. Could you please identify them and describe them?
DR. LEE: The first one appears to be a parallelogram, a pattern of transfer. The second one is consistent with a square shape transfer.
MR. SCHECK: Can we print this out as 1360-D?
THE COURT: As in David.
MR. SCHECK: As in David.
(Deft's 1360-D for id = printout)
THE COURT: Go ahead, Mr. Scheck.
MR. SCHECK: All right.
THE COURT: It doesn't take long to capture it. It just takes longer to print it out.
MR. SCHECK: No. I understand.
THE COURT: All right.
MR. SCHECK: He says I can't move it yet.
(Brief pause.)
MR. SCHECK: Move to the other side, please.
MR. SCHECK: Dr. Lee, what is this?
DR. LEE: Here is another parallelogram transfer imprint. Here appears to be a double triangle transfer imprint (Indicating).
MR. SCHECK: All right. Can we print that out as 1360-E.
THE COURT: E as in Edward.
(Deft's 1360-E for id = printout)
MR. SCHECK: Now, Dr. Lee--now, Dr. Lee, I take it that the picture in 1360 that you made of swatches at Cellmark from the picture that you took in new haven as is reflected by 1360-A, the one that we had up on the elmo, both have rulers?
DR. LEE: Yes.
MR. SCHECK: All right. And by means of that as a scale, were you able to do enlargements of--and I should--withdraw--and also the picture from the Department of Justice I see has a ruler.
DR. LEE: Yes.
MR. SCHECK: And by means of using those rulers as scales, were you able to do enlargements of the swatches depicted in this board and also the bindle that you saw in new haven?
DR. LEE: Yes.
MR. SCHECK: Your Honor, I would like to now move to the next board.
(Brief pause.)
MR. SCHECK: This will be 1361.
THE COURT: So marked.
(Deft's 1361 for id = board)
MR. SCHECK: "History of item 47, blood drop on Bundy walkway." Dr. Lee, what is this?
DR. LEE: Uh, before we--
DR. LEE: Your Honor, I have--I made a mistake.
THE COURT: All right. Why don't you talk to Mr. Scheck briefly.
DR. LEE: March 9th--
THE COURT: Wait. Excuse me, counsel. Mr. Scheck, why don't you confer with your witness for a moment.
(Discussion held off the record between Defense counsel and the witness.)
MR. SCHECK: Dr. Lee, you just indicated that you made an error in your discussion. Could you please describe what that is?
DR. LEE: Just now, I appear say April 6th, 1995. If my memory serve me correctly, that's incorrect. Should be March 9, 1995 in new haven.
MR. SCHECK: What does this board represent, the photographs here?
DR. LEE: This shows the date which when the bindle shipped to me by Johnnie Cochran's office. I open up the bindle, paper packet. Inside have a small paper packet, contents, one swatch. Wet transfer was noticed. So I took a series of photograph to show this wet transfer.
MR. SCHECK: And one of those photographs was the one we put up on the elmo before?
DR. LEE: Yes. This is the top one.
THE COURT: I'm sorry, counsel. Which photograph?
MR. SCHECK: He's indicating that 1360--
THE COURT: No, I understand. Is one of the photographs we put up on the elmo?
MR. SCHECK: I'm about to say.
MR. SCHECK: 1360-C is a close-up of blood patterns of wet transfer that is reflected on this exhibit in the upper right-hand corner and is so labeled?
DR. LEE: Yes, sir.
MR. SCHECK: And that is the photograph with the ruler?
DR. LEE: Yes.
MR. SCHECK: Now--
MR. SCHECK: I think we can move to the next board.
MR. GOLDBERG: Your Honor, on this board, I'm going to object subject to a motion to strike for accurately blowing up the photograph.
THE COURT: All right.
MR. SCHECK: Now, I would like this board marked as 13--
THE COURT: 62.
MR. SCHECK: 62.
(Deft's 1362 for id = board)
MR. SCHECK: And, Dr. Lee, what is that--this?
DR. LEE: This is a further enlargement of the photograph just depicts in the previous exhibit, the top one of the second column.
MR. SCHECK: All right. And, Dr. Lee, I'm going to mark a series of--have seven brown photographs, each separate, and ask you to tell us what these are, and first just generally, and then we'll mark them individually. What are these in general?
DR. LEE: This in general stains, seven pieces of enlargement of blood swatches, one set label HA through E, five of them, HA, HB, HC, HD, HE.
MR. SCHECK: Are those blow-ups of pictures that we saw in the tray that had the same markings, the one picture you took at Cellmark?
DR. LEE: Cellmark, yes.
MR. GOLDBERG: Also object, subject to motion to strike, same ground as to the blow-ups.
THE COURT: Overruled. Proceed.
MR. SCHECK: Wasn't that supposed to be done at another time?
THE COURT: Proceed.
MR. SCHECK: What are the other two?
DR. LEE: The other two is the enlargement, same scale, same proportion, the two swatches from DOJ, Department of Justice photo.
MR. SCHECK: Your Honor, these I would ask then to mark--
MR. SCHECK: Is this board a magnified board, Dr. Lee?
DR. LEE: Yes.
MR. SCHECK: Are those blow-ups of the swatches also magnified?
DR. LEE: Yes.
MR. SCHECK: Your Honor, the--on the back of the magnified swatches are labels HA, HB, HC, HD and he that correspond with the Cellmark swatches. So I'd ask that those be labeled--
THE COURT: We'll do 1362-HA, HB, HC, et cetera.
MR. SCHECK: Okay.
THE COURT: So that we'll know what they are.
MR. SCHECK: Thank you. And then the remaining two swatches--
THE COURT: Are these DOJ?
MR. SCHECK: The DOJ swatches.
THE COURT: DOJ 1 and DOJ 2.
MR. SCHECK: Okay. Just get a--
THE COURT: 1362 DOJ 1 and DOJ 2.
(Deft's 1362-HA through HE, DOJ 1 and DOJ 2 for id = blow-up photographs)
MR. SCHECK: And the record should reflect I'm--I'm just going to lay them out for a second, your Honor, if I might on the jury box so that the jury can see the labels on the back.
THE COURT: The labels on the back? No. The labels aren't relevant for the jurors.
MR. SCHECK: Well, the HA, B, C. All right.
THE COURT: We'll need some foundation as to scale and correlation, counsel.
MR. SCHECK: Dr. Lee, could you describe the process by which the swatches and this board were enlarged?
DR. LEE: You all have a ruler. The red ruler is my ruler. That take so-called 16-inch ruler. So basically you can look at this. This is a metric system, and one millimeter is equivalent now to 18 millimeter. That's the ruler enlargement. So the rest of a pattern is enlarged with that.
MR. GOLDBERG: Your Honor, for the record, Dr. Lee produced one of his rulers. Could we mark that as an exhibit?
THE COURT: Yes. We'll make that 1362, ruler.
(Deft's 1362 ruler for id = ruler)
THE COURT: I take it this is one of your souvenir rulers?
DR. LEE: Yes.
THE COURT: Thank you.
MR. GOLDBERG: And also for the record--I don't know if this was reflected--he was using this ruler to measure the enlargement.
THE COURT: Yes.
MR. SCHECK: And were the swatches enlarged in the same fashion?
DR. LEE: I did not enlarge those myself.
MR. SCHECK: Did you direct that they be enlarged on a one to one?
DR. LEE: Yes.
MR. SCHECK: Now--
DR. LEE: What your question? One to one?
MR. SCHECK: What was your direction with respect to these?
DR. LEE: I say enlarged with the same scale, same proportion.
MR. SCHECK: Now, Dr. Lee, what can you tell us about the nature of these wet transfer patterns that are depicted on 1362?
DR. LEE: Those--the mechanism of this transfer is relative straightforward and simple. A wet swatch have to contact this surface cause such a transfer. It's no alternative. That's scientific fact. We see some transfer. That's called mechanism. As far as manners, they may have different explanation.
MR. GOLDBERG: At this point, no question pending.
THE COURT: Next question.
MR. SCHECK: All right. Dr. Lee, have you made an effort using these swatches and looking at the transfer patterns to see if you can match up the swatches to the patterns? And could you please explain your analysis.
DR. LEE: We have seven swatches, appear to be four patterns. However, we do see some of the pattern appear to either have a movement or some addition. But we don't have all seven.
MR. SCHECK: Excuse me. When you say, "All seven," you mean you don't have seven--
DR. LEE: I don't have seven perfect pattern, transfer pattern. I have seven swatches. One of those pattern appear to be a mirror image of each other. That's consistent with a parallelogram which almost fit of one of these swatches.
MR. SCHECK: One second, please. The record will reflect that Dr. Lee has pointed to the pattern on the upper left-hand side of 1362, a pattern on the upper right-hand side of 1362 and he is handling a swatch that is labeled "He."
DR. LEE: He.
THE COURT: And because it's magnified, he's placed it over that pattern. Yes.
DR. LEE: You can fit here. If this portion of the paper touch this one, because this side going to fit on this side. So that's why we refer a copy or mirror image. The next one I can see copy fit is this one, only portion fit this corner, but the other side may be some reason did not have a direct contact so that this one is a copy (Indicating).
MR. SCHECK: Let the record reflect that Dr. Lee has been referring here to the swatch labeled "HD" and is referring to the transfer pattern on the left side of 1362, but is lower than the other one we previously referred to.
THE COURT: Why don't we mark these 1 through 4 going left to right. That will be easier if we do that for the record.
MR. SCHECK: Okay.
THE COURT: Why don't you take a marker and just have Dr. Lee number them 1 through 4 starting at the left.
DR. LEE: Further left-hand side one, we mark with 1, 2, 3, 4 (Indicating).
THE COURT: Mr. Scheck.
MR. SCHECK: All right. Dr. Lee, you were about to, before I interrupted you, move on to the next swatch and pattern.
DR. LEE: I think we lost one swatch.
MR. SCHECK: This was HD, the one you were just referring to.
DR. LEE: As I explain earlier, 1 and 4 could be a mirror image. 2 may be explainable. 3, if you look carefully, may be--the view is not too good, but you look carefully, appear to be a double image with a triangle shape. So the only triangle I have is this HB. However, this triangle is much bigger than this triangle unless this triangle folded in certain condition, which I have no knowledge of it. The rest of 4, I can't find anyplace to fit by looking at pattern, looking at the shape and the number unless have other type of explanation (Indicating).
THE COURT: All right. Mr. Scheck, I'm sorry. Forgive me for interrupting you at this time. We have a request for a comfort break. So we'll stay in place, and any jurors who need to take a quick comfort break, go ahead right now.
MR. SCHECK: Your Honor, could we take that opportunity to approach quickly.
THE COURT: No.
(Brief pause.)
(A conference was held at the bench, not reported.)
THE COURT: All right. Miss Long, do we have everybody back?
THE BAILIFF: Yes, we do.
THE COURT: All right. All right. The record will reflect we're all comfortable. Mr. Scheck.
MR. SCHECK: Now, Dr. Lee, have you had experience over the years dealing with swatches of this nature?
DR. LEE: Yes.
MR. SCHECK: Do you have an opinion as to whether or not swatches of this size, moistened with blood and distilled water, would be dry if left in a test tube for more than five hours?
MR. GOLDBERG: Inadequate foundation.
THE COURT: Sustained.
MR. SCHECK: All right. Dr. Lee, what is your experience with drying of swatches of this nature?
DR. LEE: Eventually swatch going to dry.
THE COURT: Next question.
MR. GOLDBERG: Nonresponsive.
MR. SCHECK: Specifically, what experience, personal experience do you have in observing and noting the drying of swatches of this nature? Could you describe that experience for us?
MR. GOLDBERG: Vague as to "Experience."
THE COURT: Overruled.
DR. LEE: A drop of stain, bloodstain found on a surface, if the stain already dry, if you try to transfer it to a swatch, you have to wet the swatch.
MR. GOLDBERG: This is nonresponsive, your Honor. I don't think the witness understands.
MR. SCHECK: I think he's--
THE COURT: State another question. The issue is this witness' personal experience with blood swatching using swatches of this technique, this particular size and type, handling, packaging, et cetera.
MR. SCHECK: Dr. Lee, do you have experience with the use of wetting swatches of this nature, swatching bloodstains and then observing how long it takes them to dry?
DR. LEE: Yes.
MR. SCHECK: Could you describe for us your experience in that regard?
DR. LEE: Generally approximately three hours should be dry.
MR. GOLDBERG: Your Honor, nonresponsive.
THE COURT: The answer is stricken. The jury is to disregard.
MR. SCHECK: Have you done that? Have you observed others do that?
MR. GOLDBERG: Vague.
DR. LEE: Yes.
THE COURT: Answer will stand. Next question.
MR. SCHECK: All right. And when you have done that and observed others do that, how long does it take swatches of this nature to dry?
MR. GOLDBERG: Your Honor, same objection.
THE COURT: Sustained. Inadequate foundation.
MR. SCHECK: All right. When I say "Do that"--
THE COURT: Mr. Scheck, what I'm interested in, personal experience swatching, personal experience in the drying process, personal experience then having dried them, then packaging them, personal experience, number of years, et cetera, et cetera.
MR. GOLDBERG: May I take the witness on voir dire very briefly, your Honor, on this issue?
THE COURT: Yes, you may.
MR. SCHECK: Well, can I ask some questions before he does that?
THE COURT: I'll overrule myself. Mr. Scheck, proceed. But that's my area of interest at this point.
MR. SCHECK: I understand.
MR. SCHECK: Dr. Lee, have you had experience using swatches of this kind to collect bloodstains?
DR. LEE: Yes.
MR. SCHECK: What is it?
DR. LEE: Over the year, I collect numerous stain, especially early days, we don't--we have to do electrophoresis of blood grouping. We generally use a swatch method. Nowaday, we don't use that anymore.
MR. SCHECK: All right. And in those days when you used the swatch method, what would you do and what is your experience in collecting the swatch, drying it and putting it in paper material?
DR. LEE: We have to let the swatch dry and transfer to a paper packet and preserve it.
MR. SCHECK: All right. Have you had experience in putting swatches that were not dry on top of paper surfaces such as this?
DR. LEE: Yes.
MR. SCHECK: And what results when the swatches are not dry?
MR. GOLDBERG: Your Honor, no foundation.
THE COURT: Overruled.
MR. GOLDBERG: May I take the witness briefly on voir dire?
THE COURT: No. Proceed.
MR. GOLDBERG: Just for a few moments?
THE COURT: He's in the process of laying the foundation, counsel. He's not giving an opinion yet.
MR. GOLDBERG: He just asked for one.
MR. SCHECK: No. I just said what happens--
THE COURT: Counsel, please listen to me. Lay the foundation.
MR. SCHECK: In your experience, what happens when a wet swatch is laid on a piece of paper such as this?
DR. LEE: Going to cause a transfer.
MR. SCHECK: All right. Do you have experience with how long it takes a swatch such as the kind used here and such as the kind you've used before to dry?
MR. GOLDBERG: Vague as to what circumstances.
THE COURT: Overruled.
DR. LEE: Yes.
MR. SCHECK: What is that experience and what are those circumstances?
MR. GOLDBERG: Well, it's compound.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: What is your experience?
DR. LEE: My experience--
MR. GOLDBERG: Calls for conclusion.
THE COURT: Overruled.
MR. GOLDBERG: No foundation.
THE COURT: No foundation to explain his experience? Overruled. Dr. Lee, what's your experience handling swatches, drying them, packaging them?
DR. LEE: Okay. I have a lot of experience handling, drying and packaging. If a wet swatch did not dry, if you put the paper packet, going to have a transfer. Swatch will take a while to dry.
MR. GOLDBERG: Your Honor, this is nonresponsive.
THE COURT: How do you dry them, doctor?
DR. LEE: I dried in the open air. I also dried in the test tube or dry in a open blood bench with a cover or cabinet.
MR. SCHECK: What is the range of time it takes in your experience for such swatches to dry?
MR. GOLDBERG: No foundation.
THE COURT: Doctor, after you put a swatch in a test tube to dry, I take it you leave it for a period of time?
DR. LEE: Yes, sir.
THE COURT: In your experience, how long in your procedure do you leave those swatches in test tubes to dry?
DR. LEE: We generally leave overnight.
THE COURT: Next question.
MR. SCHECK: And when you leave overnight, what is the result in the morning?
MR. GOLDBERG: No foundation.
THE COURT: Overruled.
DR. LEE: It dry.
MR. SCHECK: And when we're talking overnight, what range of hours?
DR. LEE: Usually between eight to 10, 12 hours.
MR. SCHECK: All right. Now, Dr. Lee, given your experience with how long it takes swatches to dry, let me ask you to assume that the swatches in question here were put into test tube at around 6:30 on the evening of June 13th and then removed and placed in a bindle, at the earliest, 7:30 A.M. the next morning.
MR. GOLDBERG: Misstates the testimony.
THE COURT: Overruled.
MR. SCHECK: Would you expect those swatches to be dry?
MR. GOLDBERG: No foundation.
THE COURT: Overruled.
DR. LEE: Yes.
MR. SCHECK: Given that, Dr. Lee, how can you explain the wet transfer patterns you have identified on the bindle from item 47?
MR. SCHECK: Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: What is your opinion as to the mechanism of transfer that you--
THE COURT: That created these bloodstains.
MR. SCHECK: --that created these bloodstains? Thank you.
DR. LEE: The mechanism of creation of those bloodstain has to have a wet swatch touch the surface of the paper and with certain pressure cause such a transfer.
MR. SCHECK: Can you tell us anything about the manner of transfer?
MR. GOLDBERG: Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: All right. Based on this bloodstain pattern, what is your opinion with respect to the method of transfer--manner of transfer?
DR. LEE: I don't know. I only can report a scientific fact. As far as manner--
MR. GOLDBERG: No question pending.
THE COURT: Overruled. He's not finished his answer.
DR. LEE: As a manner, something, somebody has to put the swatch in the bindle, cause such a transfer. Who did it, what happened, I don't know.
THE COURT: Next question.
MR. SCHECK: All right. On the face of it, are the existence of these wet transfer patterns, based on your experience, inconsistent with the swatches having been put in the test tube 6:30 P.M. on June 13th and then removed at 7:30 A.M. on June 14th?
MR. GOLDBERG: Speculation, conjecture, no foundation.
THE COURT: Overruled.
MR. SCHECK: Would you--let's put it--start it this way. You told us that one would expect that these swatches, having been put in a test tube at 6:30 P.M. on June 13th and removed at 7:30 A.M. on June 14th, to be dry.
DR. LEE: Yes.
MR. SCHECK: Given that fact--
THE COURT: Given that opinion.
MR. SCHECK: Given that opinion, what is your opinion about the existence of these transfer stains?
MR. GOLDBERG: Overly broad, no foundation, calls for conclusion.
THE COURT: Overruled.
DR. LEE: Only opinion I can giving under this circumstance, something wrong.
MR. SCHECK: No further questions, your Honor.
MR. GOLDBERG: Motion to strike the phrase "Something wrong."
THE COURT: Overruled. All right. Let me see counsel--
MR. SCHECK: One second. I want to talk to my counsel. But I think that's the end of the examination.
THE COURT: All right.
(Discussion held off the record between Defense counsel.)
THE COURT: All right. Folks, there's a request by the lawyers for about a five- or 10-minute break. Let's take that break, and we'll come back and see if we can do some more business today. All right. Let's take 10. All right. Dr. Lee, you can step down.
(Recess.)
(The following proceedings were held out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. The jury is not present. Mr. Scheck, you determined you need to ask three more questions?
MR. SCHECK: Hopefully maybe one.
THE COURT: All right. One it is.
MR. COCHRAN: Possibly three, your Honor. Between one and three.
THE COURT: All right. Let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect we've been rejoined by all the members of our jury panel. Mr. Henry Lee is on the witness stand still undergoing direct examination by Mr. Scheck. And, Mr. Scheck, I understand you have one or two closing questions?
MR. SCHECK: Yes, your Honor.
THE COURT: All right.
MR. SCHECK: Dr. Lee, the last answer that you gave this jury with respect to this board is "Something is wrong." Could you please explain what you mean?
DR. LEE: What I mean--
MR. GOLDBERG: Calls for conclusion, your Honor. His opinion is speculation, no foundation.
THE COURT: Overruled.
DR. LEE: What I mean, there are seven swatches, maybe a potential eight swatches, four imprints, wet transfer on the paper. If seven swatches all dry, I shouldn't see any wet transfer. If seven swatches all wet, I should see seven transfers. I only see four. The number did not add up. There may be reason to explain. I don't know.
MR. SCHECK: Thank you.
THE COURT: All right. Mr. Goldberg.
MR. GOLDBERG: Your Honor--
THE COURT: You may approach with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We've over at the sidebar. My inclination is to take a break at this time.
MR. GOLDBERG: Thank you. I would assume so.
MR. COCHRAN: They have five minutes.
THE COURT: Given where we are, that will give Mr. Goldberg the afternoon and the weekend to prepare.
MR. COCHRAN: I think we should--
THE COURT: When do you think--Hank, when do you think you'll be in a position to assess your strategy, know if you are going to be able to go forward Monday?
MR. GOLDBERG: I'm going to try to call the early part this afternoon.
THE COURT: Why don't you let me know say 2:30. All right. Would you call Mr. Cochran's office first and then notify the court?
MR. SCHECK: Yes. I also have brought to court all our photographs. We only have one set of original photographs, but I spoke to Miss Martinez last night. I've indicated to the Prosecution that they can have--they can exchange with us--in terms of the boards, they wanted original photographs. They can exchange them with us. I can give them a full set of original photographs. We'll work out some way to get everybody a set, but they can have those now to send to their experts whatever they want. I've sent them a whole bunch of copies of these.
MR. COCHRAN: Can I say one other thing too?
THE COURT: No. This is one--I'll get to scheduling in a second. I want to resolve the Goldberg-Scheck issues first. Okay.
MR. GOLDBERG: Your Honor--
THE COURT: Do you have those here?
MR. SCHECK: Yes.
THE COURT: When do you plan on doing this? Now?
MR. SCHECK: As soon as the jury is gone, I can go over this with Miss Martinez. Mr. Goldberg can give them what they want.
MR. GOLDBERG: Your Honor, Mr. Scheck and I had an agreement off the record that some of the little threads on the items be cut off on the record by the witness. But--
MR. SCHECK: I'll do that right now.
MR. GOLDBERG: Mr. Scheck can deal with it or maybe we can deal with it on cross.
MR. SCHECK: I'll do it right now. It'll take one minute.
MR. GOLDBERG: Then we have to document it before it's done.
THE COURT: Let's not do that and break at this point before we start cutting threads.
MR. SCHECK: No. Just the threads.
THE COURT: I understand. I've got a jillion things to do starting right now. So we can do that Monday or whenever we come back with Dr. Lee.
MR. COCHRAN: Two things. There is another--to further help the court--not that you need any help--but we have just--we did a chart. I just want to make sure you get that with regard to further amend the thing on the tape. So we prepared a chart device to make it easier to listen to the tapes. I just wanted to make sure you got that. The other thing--
THE COURT: I should give you mine because my staff has already done that.
MR. COCHRAN: See? The other thing, with regard to scheduling, I expect that on Monday, we may still be on cross, but some people we may want to take out of order. Menzione will be here Monday as will Carol Gobern. Carol Gobern is the lady who gave him the Band-Aid for his finger bleeding. And both--I want to put them on Tuesday. Both have little kids. I guess they've got to get in here Tuesday. I just want the court to know about those two.
MR. DARDEN: They'll be here Monday or Tuesday?
MR. COCHRAN: Monday for Tuesday I presume, but they've got to get in and out of here. So I wanted you to know that.
THE COURT: Sounds good to me. All right. We'll take our break at this point.
(The following proceedings were held in open court:)
THE COURT: All right. Ladies and gentlemen--Mr. Scheck, can you take the boards down, please? All right. Back on the record. Ladies and gentlemen, we're going to take our recess for the day as far as the jury is concerned. I want you to rest assured that I'll be working all the rest of the afternoon and all day Saturday and Sunday. Please have a pleasant weekend. But before I let you go, remember all my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you or allow anybody to communicate with you with regard to the case. And as far as the jury is concerned, we'll stand in recess until Monday morning at 9:00 A.M. and, Dr. Lee, you may step down. All right. Thank you. We'll stand in recess.
(At 12:02 P.M., an adjournment was taken until, Monday, August 28, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Friday, August 25, 1995 volume 212
Pages 42978 through 43083, inclusive
(Pages 42970 through 42977, inclusive, sealed)
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 212 pages 42978 - 43083
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Day date session page vol.
Friday August 25, 1995 A.M. 42978 212
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PROCEEDINGS
Motion re exclusion of evidence of 42978 212 Dr. Henry lee's blood transfer experiment
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
Defense witnesses direct cross redirect recross vol.
Lee, Henry C. 212 (Resumed) 43016bs
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ALPHABETICAL INDEX OF WITNESSES
Witnesses direct cross redirect recross vol.
Lee, Henry C. 212 (Resumed) 43016bs
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1356 - Posterboard 43016 212 entitled "Rockingham residence: Front foyer"
1357 - Posterboard 43029 212 entitled "Bloodstain on evidence bag"
1358 - Posterboard 43036 212 entitled "History of item 47: Blood drop on Bundy walkway"
1359 - Posterboard 43042 212 entitled "History of item 47: Blood drop on Bundy walkway"
1360 - Posterboard 43045 212 entitled "History of item 47: Blood drop on Bundy walkway - blood swatches and bloodstain patterns of wet transfer"
1360-A - 2-page 43039 212 document described as the notes of Gary Sims
1360-B - photograph 43051 212 of bloodstain patterns of wet transfer swatch
1360-C - photograph 43053 212 of close-up view of bloodstain patterns of wet transfer swatch with arrows (Computer printout)
1360-D - photograph 43053 212 of close-up view of bloodstain patterns of wet transfer swatch with markings (Computer printout)
1360-E - photograph 43054 212 of close-up view of bloodstain patterns of wet transfer swatch with four arrows (Computer printout)
1361 - Posterboard 43055 212 entitled "History of item 47: Blood drop on Bundy walkway"
1362 - Posterboard 43057 212 entitled "Item 47: Blood swatches vs. Wet transfers"
1362-HA thru 1362-HE - 43059 212 each a magnetic photograph in the shape of an enlarged swatch
1362- DOJ 1 thru - 43059 212 1362-Doj 2, each a magnetic photograph in the shape of an enlarged swatch
1362- Ruler - 43060 212 ruler of Dr. Henry C. Lee