Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro and Mr. Bailey, Mr. Blasier, People represented by Mr. Darden. The jury is not present. Mr. Shapiro, do you want to proceed at this moment or do you want to wait for Mr. Cochran, who appears to be late?
MR. SHAPIRO: Your Honor, we are going to be filing a written motion on the 1118 motion.
THE COURT: All right.
MR. SHAPIRO: So we will not be presenting any oral arguments on that. We will, however, have objections to photographs we would like to address.
THE COURT: What's his ETA?
MR. SHAPIRO: I can't tell you precisely. I expect him to be here momentarily.
THE COURT: Momentarily? Is there anything else we can take up while we're waiting for Mr. Douglas and Mr. Cochran?
MR. SHAPIRO: I don't believe so, your Honor.
MR. BAILEY: With the Court's permission, I'll try to answer that question.
THE COURT: Well, I assume they're en route.
MR. BAILEY: Okay.
THE COURT: Mr. Darden, anything else we need to take up?
MR. DARDEN: No, your Honor.
THE COURT: Did you bring enough notebooks?
MR. SHAPIRO: Mr. Kelberg is about to reopen, your Honor.
THE COURT: All right. Well, I guess the two necessary parties, Mr. Douglas and Mr. Cochran, I guess we can't proceed without them.
MR. SHAPIRO: Your Honor, we can begin on some of the items--
THE COURT: All right.
MR. SHAPIRO: --with Mr. Darden.
MR. DARDEN: Your Honor, this morning, I spoke to Mr. Douglas over the phone at approximately 9:00 o'clock. He indicated to me which items--which of those items the Defense will be objecting to today. And I agree with him on a couple of counts.
THE COURT: And I did receive a--by facsimile this morning a letter. Do you have a copy of this letter that has a list of the Defense objections?
MR. DARDEN: No. No, we have not received a letter.
THE COURT: All right. Mrs. Robertson, would you have one of the law clerks, perhaps Miss Cardswell could make a couple photocopies of this.
MR. SHAPIRO: We can I believe stipulate to certain exhibits being withdrawn.
THE COURT: All right.
MR. DARDEN: And those would include, your Honor, exhibits--
THE COURT: Why don't you hold on. I'm having a photocopy made of the Defense written objections for you, and we can just go down and check them off and do this in an orderly fashion.
MR. DARDEN: Okay. While we wait for that, we marked at some time--some point in time exhibit 379, which apparently was a box containing shoe soles. We need the box back.
THE COURT: Without the show soles or the whole enchilada?
MR. DARDEN: Without the shoe soles.
MR. SHAPIRO: We have no objection.
THE COURT: All right. If you'll prepare the appropriate removal order. For what period of time do you need that?
MR. DARDEN: This is just a cardboard box that once contained all of the soles. We need it back.
THE COURT: All right. My question is, how long do you need it for?
MR. DARDEN: Ever.
THE COURT: Forever?
MR. DARDEN: Yes. Yeah. Forever. It has no evidentiary value in the case.
THE COURT: All right. If there's no objection, we'll allow its release. And, Mr. Darden, why don't you approach.
THE COURT: All right. The record should reflect we've been rejoined by Mr. Cochran now.
MR. COCHRAN: Yes, your Honor.
THE COURT: All right. Mr. Darden, you were saying there were a few of these items that we can agree upon immediately?
MR. DARDEN: Yes, your Honor. That's correct.
THE COURT: Which items are those?
MR. DARDEN: 16 and 16-A. Item 16 is Nicole Brown's will and 16-A I believe is the envelope that at once contained the will. There was a written inscription on the envelope which said "Do not open unless in the presence of a lawyer" or words to that effect. We will withdraw 16 and 16-A.
THE COURT: All right.
(Peo's 16 and 16-A for id = withdrawn)
MR. DARDEN: Items 87 through 96, those are the exhibits that relate to the Rosa Lopez conditional examination.
THE COURT: Yes.
MR. DARDEN: We are agreed they are irrelevant at this point.
THE COURT: All right. They will remain marked. However, for identification purposes. I'll note that they'll be withdrawn at this time unless and until that witness testifies.
(Peo's 87 through 96 for id = withdrawn)
MR. DARDEN: And Mr. Clarke has sent us word that we should withdraw 407 through 411. Those exhibits apparently were introduced during a 402 hearing and not introduced before the jury.
THE COURT: 407 through 411?
MR. DARDEN: Sorry. 407 and 411.
THE COURT: And you're going to withdraw those?
MR. DARDEN: Yes.
THE COURT: Mrs. Robertson indicates 407 through 411 are actually a group of items.
MR. DARDEN: Sorry, your Honor. I didn't hear your last comment.
THE COURT: Mrs. Robertson indicates 407 through 411 are a group of items.
MR. DARDEN: We will ask to withdraw 407 through 411.
THE COURT: All right.
(Peo's 407 through 411 for id = withdrawn)
MR. SHAPIRO: Your Honor, Mr. Douglas is just coming up the elevators momentarily, and we'll address the remaining issues with the Court's permission.
THE COURT: All right. I look forward to the argument on number 8, the objection being Harris E.
THE COURT: All right. And, counsel, have you each received a copy of the clerk's printout of exhibits? Mrs. Robertson, have you given each counsel a copy of the Court's exhibit list? No. I'm just asking, have you?
THE CLERK: No, I haven't.
THE COURT: It appears to be approximately how many pages? About 50 pages. No, you don't need to do it right now. I just want to make sure it's available.
MR. DARDEN: I don't believe we have a copy.
MR. COCHRAN: I don't believe we have either.
THE COURT: The Court's copy appears to be approximately 50 pages. So let me have one of the--let's have one of the law clerks make a copy of this. All right. The record should reflect that we've been joined now by Mr. Douglas. Good morning.
MR. DOUGLAS: Sorry about my delay.
THE COURT: All right. Are you prepared to go forward on the--your arguments regarding the various items of evidence to which the Defense has additional objections to?
MR. DOUGLAS: Yes, I am, your Honor. If the Court pleases, I would like to also put on the record that I am going to be giving to Mr. Darden a reduced list of proposed Defense witnesses. I will be giving him as well a list of witnesses whom the Defense is withdrawing, and I have in my briefcase and I will give to him as soon as we have a little respite documents that would be discoverable given our current status of the case, that the People have now rested. There are some Defense witnesses whom we intend to call whom we may have statements that were not earlier discoverable under the Court's--under the reciprocal discovery act, and I will turn those documents over at the first opportunity.
THE COURT: All right.
MR. DOUGLAS: Your Honor, turning next to the question of exhibits, has the Court received a faxed copy of a letter?
THE COURT: Yes, I did. I have a letter before me with today's date that is a two-page letter that lists various Prosecution exhibits and a brief explanation of the Defense objection.
MR. DOUGLAS: Would the Court wish me to formally go through that list, or if the Court please, I can introduce it as an exhibit and have it lodged or--
THE COURT: Well, we'll file this as a letter to the Court so that the record is clear as to what it is you are objecting to. I'd like to take these--since we only have objections to approximately 20 or 25 exhibits out of the almost 500, my suggestion is we take them one at a time since they appear to--although some of these can be grouped together.
MR. DOUGLAS: Your Honor, if the Court pleases, I'd like to first give an overview of certain categories of certain exhibits I would like to lodge objections to.
THE COURT: Certainly.
MR. DOUGLAS: The first concerns those exhibits of the crime scene and the victims at the crime scene. As the Court will recall, there were objections lodged at the opening of the trial on 352 grounds to several of the crime scene photographs. I recall arguing then that I recognized that this was a murder case and that in all murder cases, there are crime scene photographs. I objected, however, to the number, which I thought was repetitive, which I thought was unnecessary and which I thought that there were other ways in which the relevant facts could be displayed in a less prejudicial form and fashion. I simply for the record renew my objection to those exhibits now. It is my hope that all of the relevant photographs of crime scene victims are listed, and it is my intention to formally lodge an objection to the crime scene photographs with the exception of one view of Mr. Goldman and one view of Miss Brown Simpson. Any repetitive photographs, I hereby lodge an objection on 352 grounds. Similarly, your Honor, the Court will recall that the Defense lodged very vocal and strenuous objections to the autopsy photographs. And for the record generally, I would renew our objections now. Certainly, in the light of clear reflection, the Court can see why the Defense had strong objections to some of the more graphic photographs that were shown to the jury. Our worse fears were apparently realized because there were several different occasions when several jurors appeared to suffer some manner of dis-ease upon viewing the photographs. I think that on 352 grounds, they should not be allowed to be introduced into evidence, and I want to confirm for the record our objection to those exhibits as well.
THE COURT: All right.
MR. DOUGLAS: Turning--so those are the general categories, your Honor. There's also--I have a question, and I spoke briefly with Mr. Darden about it this morning, as to the propriety of introducing resumes of some of the experts, particularly the resume of Dr. Lakshmanan as well as the resume of Mr. Weir. I think that on 352 grounds, they are really unnecessary because there was extensive qualification of each of those experts as to their background.
THE COURT: All right. As to 407, the resume of Dr. Weir, that was withdrawn.
MR. DOUGLAS: Very well.
THE COURT: And the only relevant other resume would be People's exhibit 295, which is the resume of Dr. Lakshmanan.
MR. DOUGLAS: Then as to that one, your Honor, I think particularly with Dr. Lakshmanan, there was extensive testimony elicited from Mr. Kelberg as to his background, as to the nature and extent of his education, as to the quality of his past experience; and given the care with which he was qualified as an expert, I would argue on 352 grounds that the introduction of his resume is unnecessary and an undue use of the process. Turning specifically, your Honor, to the objections that are listed in the letter to the Court, exhibit no. 8 was a lesson plan that allegedly concerned a conversation that Mr. Shipp may have had either with Mr. Simpson or with Miss Brown Simpson, and we lodge an objection to that exhibit on hearsay grounds. The next exhibit would be exhibits 9 and 10 and 11 and I may--I believe these are the photographs that concern Miss Brown Simpson that were allegedly recovered from the bathroom drawer in their home where there was an attempt to introduce the photographs through Mr. Shipp, but there was no foundation laid. There was then a second attempt to introduce the photographs through Denise Brown, and the only foundation that was offered was that she found them in `89 or so in a drawer, but she could not authenticate them, particularly as to time. I recall there being a sidebar in an effort to clarify the problems evidentiary wise, and I on behalf of the Defense lodge objections to each of those three photographs at this point.
THE COURT: All right. And you're referring to the three Polaroid type photographs?
MR. DOUGLAS: That's correct, your Honor. I next lodge objections on behalf of Mr. Simpson to exhibits 14 and 15. I believe that those were two of three photographs brought to the Court during Mr. Shipp's testimony. Only exhibit 13 was offered before the jury, and for those reasons, I think that there's no basis to introduce exhibits 14 and 15.
THE COURT: Okay.
MR. DOUGLAS: Exhibit 16 and its corollary, 16-A, I believe--and please, Mr. Darden, correct me if I'm wrong--that exhibit will be withdrawn.
THE COURT: That is correct. 16 and 16-A have been withdrawn.
MR. DOUGLAS: Very well. Consistent with the arguments that I stated preliminarily, we lodge objections to exhibit 43 concerning the victims found at Bundy, the large board, and exhibit 43-A through E, which are included on that board.
Similarly, your Honor, we lodge objections to exhibit 59 as well as 59-A and B. Those, again, are crime scene photographs of Mr. Goldman at Bundy. The next two exhibits, your Honor, concern a photograph that was taken inside Bundy, the kitchen area I believe of a knife that was displayed on a counter inside the Bundy residence. I don't think that there was any testimony demonstrating the relevance of that knife to the issues that are germaine to the jury in this matter. It was simply one item that was found on a counter. It was never offered or displayed to Mr. Lakshmanan suggesting that it could have had any relevance in terms of a weapon used in the case, and I think both on relevance and really 352 grounds as well, that there's no real need to have either of those two photographs introduced into evidence. Generally, your Honor, exhibits 87 through 96 are--
THE COURT: Those have been withdrawn.
MR. DOUGLAS: They've been withdrawn as well. Very well.
THE COURT: As not being ripe at this time.
MR. DOUGLAS: Correct. There--next we return to exhibits 132, 133 and 134. They are photographs inside the Rockingham garage.
THE COURT: All right. Give me two seconds here.
THE COURT: All right. 132, 133 and 134.
MR. DOUGLAS: I recall there was an effort through Mr. Lange to authenticate and to lay a foundation for the introduction of those pictures, unsuccessfully so. I have listed on my sheet that there was another attempt to introduce the photographs through Mr. Kaelin. Quite frankly, I don't recall the nature of that testimony and I was unable to locate that transcript prior to coming to Court. But as a cautionary note, I would lodge an objection on foundational grounds because I do not recall Mr. Kaelin's ability to properly attest to when those photographs were taken. I've spoken already about exhibit 295. Exhibit 334 and 335, your Honor, were two knives that were initially at least shown to Dr. Lakshmanan. I don't recall the quality of foundation being laid as to those two knives as I do recall having been laid to exhibits 332 and 333. My recollection was that each of the four knives were initially presented to the doctor, but that there was more extensive effort to discuss exhibits 332 and 333, and I don't specifically recall the same care in seeking to draw some connection even theoretical of exhibits 334 and 335, and that's the basis for my objections to those two exhibits. Exhibit 337, your Honor, was a print-out from a book from Verner Spitz and a Mr. Fisher. I had occasion to review that document on Wednesday. I do not think however--I do not recall specifically what was offered as to the relevance, and as a precaution, therefore, I lodge an objection to it.
THE COURT: This is the lines of Langer exhibit.
MR. DOUGLAS: 339, your Honor--withdrawn. That's incorrect. The next would be those boards consistent with our stated effort to exclude and eliminate from presentation into evidence of any autopsy-related photographs. As the Court will recall, during the eight days of direct testimony, there was meticulous attention paid to each wound both from the graphic photographs to the same locations on the blow-ups of the actual diagrams to there also being a verbal recitation and description of the various wounds. I do think that on 352 grounds, given the totality of the evidence and that which the jury has already been allowed to view, that there is a balancing that can be done in favor of objections that have been lodged to the introduction of the boards. Certainly it's one thing for these boards and these photographs to be displayed in an academic setting if you will, such that there can be some reference to the testimony and in some manner give life to the words in a visual reflection and description of the wound. I think, however, that the ends of justice would be better served by excluding those photographs and not allowing them to be displayed into the jury room. There is a legitimate concern that the overwhelming horror of the photographs when placed in a small room that the jury will be deliberating might take some unfair resonance and might serve to make it difficult to recall the nature of the testimony as it concerned the wounds. They are going to have the boards with them to which there were no objections. They are going to have the diagrams with them to which there were no objections, both in a small compact version and expanded and enlarged. And I do think that when there is a fair balancing of the concerns given the value of hindsight and recognizing that there was legitimate concern with even the placement of those boards and the proximity of those photographs to some of the seated jurors that the natural extension of those concerns would follow into allowing those photographs into the jury room, and I urge the Court to exclude the introduction of those boards into evidence. Exhibits 358-A and 358-B, if the Court will recall, are very graphic and disturbing close-ups of wounds, one of Miss Brown Simpson and one of Mr. Goldman. There was strenuous objection at that time by Mr. Shapiro. The Court considered those graphic photographs with some consideration and required some portions of one of the photographs to be excised. I would ask the Court to go one step better and to disallow the introduction of those photographs into evidence. I've spoken already, your Honor, about the Defense's objection to exhibit 407. The last exhibit would be exhibit 411, which was--
THE COURT: All right.
MR. DARDEN: Withdrawn.
MR. DOUGLAS: --withdrawn.
THE COURT: Withdrawn.
MR. DOUGLAS: Very well. If the Court has no other questions, I'll take a seat.
THE COURT: All right. Thank you, Mr. Douglas. Good morning, Mr. Darden.
MR. DARDEN: Good morning, your Honor. Your Honor, the individual Prosecutors who had introduced each of the items of evidence that the Defense is now objecting to will be speaking to the issue of admissibility on each of those items. I, however, have exhibits 8, 9 through 11, 14 through 15--yeah--14 through 15. As for exhibit no. 8, the lesson plan, this was the lesson plan that Ron Shipp used while he was an instructor at the LAPD police academy. It is the same lesson plan that he Xeroxed, took to Nicole Brown, discussed with her and showed it to her. She then asked Shipp to take it to the Defendant and to discuss the batterer's profile as contained in that document with the Defendant. Ron Shipp did that. He testified to having done that. He testified to having gone over each of the indicators or each of the elements of the batterer's profile with the Defendant, and he testified that when he reached a point in the profile regarding pathological jealously, that the Defendant indicated to him or stated to him rather that he, the Defendant, was a little bit pathologically jealous. That testimony is contained on pages 12,748 through -50. And as for the photographs marked 9 through 11, the relevant testimony relating to those photographs can be found at pages 13282 through -4 and 13,309 through -10. Denise Brown testified that she took exhibits 10 and 11, that she took those photographs herself after the 1989 incident. She identified those photographs. They were placed on the elmo before the jury and there was testimony about those photographs.
THE COURT: All right. That was as to 10 and 11?
MR. DOUGLAS: Can I have the page cite for that?
MR. DARDEN: It's 13282 through -4 and 13309 through -10. Then there was the other photograph. I believe it's People's 9.
THE COURT: Yes.
MR. DARDEN: Which I will withdraw. I believe that's the photograph of Miss Brown approximately 19 or 20 years old.
THE COURT: Yes, it is. She appears to be a younger age than photographs 10 and 11.
MR. DARDEN: Okay.
THE COURT: And you are withdrawing that?
MR. DARDEN: Yes.
(Peo's 9 for id = withdrawn)
MR. DARDEN: People's 14 through 15, 14 and 15, those are the photographs that depict the Defendant and Ron Shipp on a movie set as I recall. The Defense raised the issue that Mr. Shipp and the Defendant were not friends--not very good friends at all and that they had not spent much time together, and so the Prosecution introduced a series of photographs depicting the Defendant and Ron Shipp doing various things. 14 and 15 were shown to the witness and testimony was given.
THE COURT: My recollection is that I did not allow 13 because it depicts Mr. Simpson handcuffed in a theatrical situation.
MR. DARDEN: Okay. I thought that the objection was to 14 and 15.
THE COURT: No. My recollection is that during the course of the testimony, I sustained the objection to that photograph being shown to the jury is my recollection.
MR. DARDEN: Okay.
THE COURT: But I do have before me 14, which appears to be a four by six photo of Mr. Simpson and Mr. Shipp apparently at some social function, appears to be at the Defendant's house, and 14 is a smaller photograph which appears to have Mr. Simpson with his arm around Mr. Shipp.
MR. DOUGLAS: Your Honor, that's my mistake then. I meant to lodge an objection to the handcuffing in particular. That's my mistake.
THE COURT: All right.
MR. DARDEN: Okay. And that's why I wasn't speaking to item 14--13 rather because there had been no objection. At any event, I will withdraw 13.
THE COURT: All right.
MR. DARDEN: Okay.
THE COURT: 13 being withdrawn.
(Peo's 13 for id = withdrawn)
MR. DARDEN: Okay. 14 and 15, as I indicated, the testimony--the relevant testimony is at pages 12966 and -67 and there was testimony--
THE COURT: I might own a computer real quick here. All right. 12966.
MR. DARDEN: And -67.
THE COURT: All right.
MR. DARDEN: There's also People's 124, your Honor, which is the video. While I'm up, I thought I should mention this. That is the video of the Defendant handcuffed and the release of the handcuffing--handcuffs by Detective Vannatter. I'm not seeking to introduce that video into evidence at this time.
MR. DOUGLAS: We want it in, your Honor.
THE COURT: Well, we'll take that up as soon as we finish this.
MR. DARDEN: Okay. In any event, those are the only exhibits that I'm here this morning to address, your Honor.
THE COURT: All right. Thank you.
THE COURT: Miss Clark, good morning.
MS. CLARK: Good morning. I think the only exhibits the Defense is objecting to of the ones that I marked are 132 through 134 concerning lack of foundation with respect to those photographs. The foundation was laid, and we cite the Court to the transcript, pages 19815 to 19819 beginning with Brian Kaelin testifying in response to the following question: "Do you know what the contents of the garage were or what the garage looked like inside as of June the 12th, 1994? "Answer: Of some things. "Okay. "Question: Okay." Sorry.
"If I show you a photograph of the interior of that garage, will you be able to tell us whether it fits your memory of the appearance of that location?" We then proceed to mark the photographs and go through them one and one and he authenticates as indicated in the photographs, and all of them were authenticated by him as items he recalls in the garage in the locations in which depicted as of June the 12th, 1994. And I believe that's all the foundation that's needed for that. May I also address the Court with respect to exhibits I think should be withdrawn at this time or do you want me to wait?
THE COURT: Let's just do the ones that are being contested at this point.
MS. CLARK: Okay. Actually, your Honor, I mean, if the Court prefers, we can wait to withdraw exhibits until the end of the case. So whatever the Court prefers.
THE COURT: Well, let's take up the ones that there are objections raised at this point.
MS. CLARK: Fine.
THE COURT: All right. Then when we conclude this discussion, then we'll take up what you want to withdraw.
MS. CLARK: Okay. So that's that. And I think Mr. Kelberg has the balance. I'll get out of the way.
THE COURT: Mr. Kelberg, are you responsible for the cart being here today?
MR. KELBERG: I am not, your Honor. And once again, People have accused me unjustifiably, and anybody who saw my materials know that I use yellow pads with red and blue ink and I don't rely too frequently on green binders except to have the exhibit list provided for me.
MS. CLARK: And raggedy boxes.
MR. KELBERG: And raggedy boxes. That's the most telltale circumstantial evidence that I've been around. Again, your Honor, it's a pleasure to be down here to address the Court. I think it is interesting that the largest volume of objections appears to be to the evidence that was provided through Dr. Lakshmanan which may reflect not on the length of the examination, but the force of the evidence that was given the jury from Dr. Lakshmanan.
Let me start--I didn't actually mark 43, 59, 59-A and 59-B, but I gather by default, I've been asked to comment on those because those are crime scene photographs, and they really fall into the same genre of photographs, in particular, 354, which is a board that has I believe at least one of the photographs, 43, on it. So I'd like to talk about those when I talk about the crime scene photographs. I would initially respond to Mr. Douglas' objection to Dr. Lakshmanan's curriculum vitae. I remind the Court, although I doubt the Court needs reminding, that 352 says that the probative value must be substantially outweighed by the prejudicial effect. I can see no prejudicial effect to having provided the jury a concise 9- or 10-page summary of Dr. Lakshmanan's qualifications. We did not go into every entry that is on his curriculum vitae. And in the event the Defense produces Dr. Baden and/or Dr. Wolf, I assume that they will have their curriculum vitaes marked and the jury will have them to compare and contrast to see the relative experience, education, training, publications and so forth. So on the--from the standpoint of prejudice, it's difficult for me to understand how there is unfair prejudice. In fact, it helps the jury because it concisely provides the information.
THE COURT: I understood Mr. Douglas' argument though to be the second phrase of 352, that since we did go through a long and extensive testimony from the doctor regarding his many board certifications and et cetera, et cetera, that it's really redundant.
MR. KELBERG: Well, it's not redundant if, for example, the jurors did not write down everything that was said and the jury then has a question and let's say, again, Dr. Baden and/or Dr. Wolf testifies and the jurors are back there trying to decide, well, gee, do I want to rely on this expert versus that expert and the jury instruction tells us that we should look at their qualifications, and I don't remember exactly what their qualifications were. Am I going to ask the Court to have a read back of the relevant qualifications of the experts so that I'll have that information. If we give the jury the curriculum vitae of these experts, the jury has it available immediately, concisely and quickly to go over and evaluate the relative merits. And again, I would have no objection to the curriculum vitae of any Defense expert being marked and received as an exhibit because I think it helps the jury, it saves time and it is not cumulative because no one goes over everything that is in a curriculum vitae and particular publications. It's summarized by number and type, but not in the detail that the curriculum vitae provides. So understanding the objection as the Court understands the objection, I still believe it is not well-taken. With respect to the knives, Mr. Douglas may not recall the testimony, but the thrust--probably a bad word--the tenor of the testimony regarding those other knives deals with class characteristics of knives and to differentiate how knives--for example, there are single-edged knives, there are several of them presented, but they have different lengths, they have different widths and different thicknesses which go into how wounds can be different in appearance when inflicted by different kinds of knives. One of the knives is a double-edged knife, which I believe is exhibit 335 if I--let me get my little cheat sheet here if I could for a second.
THE COURT: Well, I have them here before me.
MR. KELBERG: Yes. 335 we have marked as the double-edged knife, which is to show the different characteristics that that knife has from a single-edged knife. The other knives are different types of single-edged knives to give the jury an understanding. Again, under 352, we have never suggested--in fact, I think we made it clear to the jury, these are not knives that we suggest in any way were involved in this case. We have in no way tried to suggest that Mr. Simpson is connected to any of these knives. These were offered for a specific purpose. Mr. Shapiro objected at the time, made his argument to the Court. I believe he even renewed the argument a second time regarding the knives. The Court overruled those objections. I see no basis to change the Court's ruling at this time. They were offered for a limited purpose. That was the purpose they were used for and that is the purpose for which they should be received. And clearly, they're not going to go into the jury deliberation room unless the jury I would assume makes a request for them, and then they would have them under some sort of supervision. So the concern that they might injure themselves I think is not well-taken. Jurors in many, many cases have received weapons of various types, and to my knowledge, have come through unscathed from the experience. Let me then talk about 337. In fact, the lines of Langer were discussed by Dr. Lakshmanan. In fact, the Court may recall we had a little refresher course in geometry. I think I used the term "Trigonometry" with Mr. Fairtlough whose artistic success in drawing a right angle was put in some question. But that page showing the lines of Langer was used by Dr. Lakshmanan to explain how wounds can become gaping wounds rather than very narrow wounds that one might expect from an incised type of knife wound. And clearly, there are a number of gaping wounds that were received by the victims in this case. We are then left with the photo boards. And actually, the list that I have, which is a handwritten list--and I don't know if this was faxed to us or somebody got the information and wrote it down, somebody within our office. So the list I have, for example, does not include board 358. It has 358-A and B, but I understand 358 to be a board, and I'm sure that Mr. Douglas is objecting to that board and I take his objection to be basically to all the Coroner photographs.
THE COURT: No. The list that is before the Court does include 358 and 358-A and B.
MR. KELBERG: Okay. First of all, the Court has already sustained the objection to 358-A. And Mr. Douglas is mistaken as to what that photograph is. The Court may recall that we presented I think three photographs to the Court for its consideration in a 402 ruling in the middle of Dr. Lakshmanan's testimony. These are photographs all of Mr. Goldman, all taken at the scene, all demonstrating the area of the front of his neck with respect to those two superficial incised wounds which I think are shown in photograph G-37 of the board, which is 358 I believe. The Court sustained a 352 objection to the use of the first photograph, which was 358-A. So we don't quarrel with the objection having been sustained. It's sustained and that photograph is not being received in evidence. We understand that. 358-B, the Court ruled that the probative value did in fact outweigh the prejudicial effect, but the Court did order that the photograph be cropped. The photograph was cropped and that is what the jury should receive. Now, I think it's important to remember, at least as I listened yesterday on the radio, that the Court has already heard Mr. Cochran's renewed motion under 352 to exhibits 354, 358-B and 359. As part of the stipulations regarding those photographs, Mr. Cochran, to preserve the record, renewed the 352 objection. The Court basically said it stands by its ruling, and unless there's something that I missed, I don't see any basis to have a change between yesterday and today in the Court's ruling. If the Court wishes me to address those exhibits, I will. But for the reasons that the Court expressed, nothing's changed. If anything, the evidence takes on even stronger importance, more critical importance for the jury's understanding now because it fits the circumstances of these two murders together along with the hair and trace evidence which was presented through Mr. Deedrick's testimony as our last witness. These photographs have compelling probative value. The Court found that initially and there's no basis to say that that probative value has in any way been undermined. It ties the case together. There is no chart, there are no words that can convey what those photographs convey. No one's said they would be pleasant to look at. But that's not the job of this jury. This jury's job is to look at evidence that is probative and will help this jury one way or the other decide this case. The Court found that these would be helpful photographs and I believe that through Dr. Lakshmanan's testimony, that of Mr. Deedrick, the jury has a very good understanding of why they are important.
And it will be a matter of argument perhaps for the counsel on both sides to suggest to the jury whether they are important or they aren't important. But from my view of what the jury paid attention to during the course of the time that I did a very lengthy direct examination, that jury paid attention. And although they may be disturbing photographs to some extent, as they should be disturbing photographs, they are not disturbing in a way that the law says keeps them from being considered. These photographs show what happened to these two people. These photographs show premeditation, they show deliberation, they show expressed malice, they show one person with the power to murder two human beings could accomplish that. They explain the wounds, for example, to the back of Mr. Goldman's hands as not being caused by a blow to the perpetrator's face. And so any theory on that line suggested by the Defense is I think quite nicely undermined by the photographs and of course Dr. Lakshmanan's testimony. They show all of these issues that are relevant to the jury's consideration. They also show the blood that will be caused to flow and which can justify why the shoeprints are there for 86 feet to the end of that walkway at the back of the property. All of these factors, your Honor, are factors that the jury will have to consider in saying is this the man who murdered these two people, have we proved it beyond a reasonable doubt; and if we have proved the identity beyond a reasonable doubt, is it a first degree murder or a second degree murder with respect to each of these two cases. So with respect to those photos, I suggest to the Court that their value was demonstrated when the Court, after a very lengthy consideration and then lengthy argument from both sides, ruled that these photographs should be seen by the jury. And nothing has changed. If anything, all that's been changed is to understand even more so their importance. And I think that's what the Court indicated yesterday when it overruled Mr. Cochran's renewed 352 objection. So unless the Court has any questions for me with respect to this group of photos--and I include really 43, 59, 59-A and 59-B, I will sit down and hopefully not to be heard from again unless dragged in by Miss Clark or Mr. Darden to do a little cross-examination.
THE COURT: All right. My recollection, the photograph obviously that troubled the Court the most in this entire sequence was that of 358-B, which was the photograph of Mr. Goldman at the scene. And my recollection is that the issue was, was it an antemortem, were these small--not small--the incised superficial wounds antemortem; the issue being, was there evidence of bleeding into the tissue at the crime scene.
MR. KELBERG: Exactly, your Honor.
THE COURT: Okay.
MR. KELBERG: Anything further you wish from me, your Honor?
THE COURT: No. Thank you.
MR. KELBERG: You're welcome.
MS. CLARK: May I address the Court, your Honor, with respect to, there are additional issues with respect to 43, 59 and 59-A and B. And I hope that Mr. Kelberg can be invited back into the courtroom as opposed to being dragged back in. But with respect to those photographs, your Honor, 43 not only is illustrative for the purposes of the Coroner in terms of where the bodies were found, but is illustrative of Robert Riske's testimony concerning the positions in which the bodies were found, the lighting in the location and the location of evidence as he found it. And so the condition of the scene as found by each of the officers is relevant to all of the inquiries concerning where everything was in relationship to each other, issues of surprise, Ronald Goldman had been taken by surprise, the keys dropped one location, the pager in another, the lighting and what officers could or could not see, and, therefore, by inference, what the Defendant could or could not see and thus left behind in his haste to get away from the crime scene. All of these issues are illuminated--no pun intended there either--considerably by the photographs that show the location of the items as they were found by the first officer at the scene. If I could briefly look at 59, 59-A and B. I think the Court has them on the bench.
MS. CLARK: The Court will recall that 43 was the board marked with Officer Riske of the victims at the crime scene.
THE COURT: You mean 59-A and B?
MS. CLARK: Uh-huh.
THE COURT: In fact, let me give you the whole series of photographs to that.
MS. CLARK: Thank you, your Honor.
THE COURT: In that series.
MS. CLARK: As far as I know--well, as far as I can tell by the list proffered by the Defense, it's only of this series 59 and 59-A and B that are objected to. The board and this series--this 43 series is not in issue. The only objection I have in front of me, according to what the Defense has proffered, is 43, the board,
MS. CLARK: If the Court will recall, there was considerable testimony in cross-examination about the location of items of evidence and where they were in relation to the bodies of the victims and subsequently whether they had been moved, and if so, how much. The photographs in 59 and 59-A and B show the view of the--of the victim in place as seen by Officer Phillips--Detective Phillips and is, therefore, relevant to show the position of the body when the detectives arrived. And his testimony illuminates that further. And you can see that on 59-B, the initials RP are shown. It's also shown in this--in these photographs--the testimony went to explain what the officer could see from various positions around the body of the victim. And those zoom-ins which are shown in 59 and 59-A and B are important because they focus specifically on what the officer was talking about in terms of what he was able to see from where he stood around the bodies of the victims at the Bundy location.
So obviously there is great probative value. The prejudicial value is virtually nil. They are--the photographs shown there are neither particularly gory or gruesome in any way or shape or form, especially in light of other photographs that have been received by the Court. But they are very informative in terms of the ability of what can be seen from various positions. And if you recall, with respect to the issue of contamination of a crime scene, the officers were careful to stand just outside the gate and then to walk around behind over to the north side of the gate in order to see into the crime scene, purposely avoiding stepping through the crime scene as much as possible. So those positions and those views are very important to illustrate the measures taken to avoid contamination of the crime scene. So for all of those reasons, we have great probative value with very little if any prejudicial value in view of all of the evidence that is coming before this jury in other manner, in another matter. With respect to 75 and 76, your Honor, the photographs of the knife on the table--
THE COURT: Yes.
MS. CLARK: The issue raised here is relevance. Frankly, your Honor, I think it's very--it could be very probative. And let me explain this. We have a very clean kitchen with nothing out of place except this big butcher knife lying on the counter top. I think it doesn't take a great leap to infer that Nicole heard someone coming up from the rear as opposed to from the front. She knew that Ronald Goldman was coming to the front to return the glasses. And if he had and when he did, he obviously had to ring the bell. He obviously had to ring the buzzer in order to get in. That would not have caused her fear or concern. But someone coming up from the rear where no one should be at that time of night would have. And so she might have armed herself, hearing the sounds of someone coming up from the rear, only then to put the knife down when she realized that perhaps no one was there as Mr. Simpson hid; and having heard nothing further, no further sounds, put the knife down and went out to let in Ronald Goldman, who had just rung the bell, only then to be surprised by the fact that indeed someone was there.
So I think that this knife has great probative value. And the fact that it lies out there alone in a very clean and orderly kitchen I think is highly significant. So I think the relevance is demonstrated by that argument alone, and I'll leave it with that. With respect to 43, does the Court wish to have it brought out so that I can point out--
THE COURT: Yes. And, Mr. Fairtlough, why don't you set the easel up over there.
MS. CLARK: Can you cut the feed, your Honor?
THE COURT: All right. As to 43.
MS. CLARK: It's been a long time I know, but the Court may recall that the view of the crime scene by both police officers and by civilians and what they were able to see from various points on the sidewalk was extremely important and I suspect may become even more important when we begin the Defense case. These photographs were authenticated not only by Robert Riske, who was the first officer on the scene, but also Sukru Boztepe, who was the first person to see the body and have the police called in order to have the crime scene taken care of. And these photographs and the appearance of the walkway from the sidewalk is extremely important for many reasons. No. 1, it shows what could or could not be seen in the dark, how dark the area was and the placement of the victim. It also shows the lack of any shoeprints going down the walkway to the sidewalk, which is obviously important both from the standpoint of proving that one person did it as well as establishing that the only escape route could have been down the walkway to the west where we have the bloody shoeprints and the blood drops. This photograph, 43-C, as authenticated by Robert Riske, demonstrates clearly the position of the body as first seen, as first found by him with her legs underneath the gate, which I think will be extremely important, and this--43-D shows the placement of the envelope next to--in just position between the two bodies, that is Nicole and Ron, Ronald Goldman. And that's important. These two photographs, 43-D and E are important next to each other. We have no photograph in which the bodies of both victims with the evidence between them is depicted in one photograph. We've had to put two together or three together in order to give the jury a view of all of the evidence in its relationship to the victims.
And as I've pointed out earlier, the location of all of that evidence in relation to the victims is very probative to demonstrate how they were taken by surprise and demonstrate how evidence could have been dropped like the hat and the bloody glove by the Defendant without being able to later locate it to take it away with him. And these photographs are extremely illustrative of all of the issues that I've indicated as well as the issues pointed out by Mr. Kelberg concerning the area in which Ronald Goldman was basically pinned by the Defendant, the location in which he was basically caged, hemmed in and unable to run. And it demonstrates that very well in 43-E and F, not to mention the location of shrubbery and shoots and branches on which he was--on which his hands were cut in the flailing motions in an effort to get away from the Defendant. So I would--I would submit that the probative value of these photographs highly outweighs any prejudicial value, and it's illustrative of the testimony of not only civilians and officers, but the Coroner as well. Can I have a moment, your Honor?
THE COURT: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Also, with respect to 75 and 76, your Honor, the kitchen with the butcher knife on the counter, Mr. Kelberg points out a very good point, which is that if the Defense wished to contend that Miss Brown ate again after she came home from Ben and Jerry's, that very clean kitchen with no evidence of any food in sight would be further evidence to demonstrate the fact that the stomach contents that were viewed during her autopsy could only have come from the meal she had at the Mezzaluna for the purpose of fixing the time when she last ate. And that could very well become an issue if Dr. Baden does take the witness stand. So that's the further reason for that.
THE COURT: All right.
MS. CLARK: And shall I take it down?
THE COURT: All right. Anything else, Miss Clark?
MS. CLARK: I think that we've addressed it all now, your Honor.
THE COURT: All right. Mr. Douglas, do you wish to have any brief response?
MR. DOUGLAS: I do, your Honor, briefly. Your Honor, the crime scene photographs create prejudice from the collective impact of the shear number of photographs that the Prosecution is seeking to introduce. As I said in my preliminary comments, we recognize that this is a murder case, and with all murder cases, there are gory photographs. The concept of a gory photograph per se, we do not have an objection to. However, there is indeed some sort of psychic impact of continuing to display repeated photographs that we think are cumulative and are not necessary. Let them show four photographs of Nicole Brown Simpson that adequately shows the items and the correlation and the relationship between the bodies and pieces of evidence which--that they want to show. Let them pick out the best four. Let them show three photographs of Mr. Goldman that would adequately reflect the correlation between the fencing and the gloves and the shrubbery. But there is we believe a real danger of bombarding the jury with countless numbers of photographs all that seem to show a minute distinction between the other, and I think collectively, there is a colorable basis for an argument that they are cumulative and that they are all are not necessary--they all are not necessary. As to the discussion of the weapons and the four knives if you will that Mr. Kelberg showed to Mr. Lakshmanan, we believe, your Honor, that the education boards, which I recall are boards specifically talking about single-edged and double-edged knives, single-edged and double-edged wounds, the distinction, the corollary, the relationship between both, there was fine attention made and given to those sorts of differences in the knives. Nothing is added I argue to having those actual knives introduced into evidence given the state of the record, that there is no indication that this sort of knife created the wound, that this is something of more probative value than simply having show a particular knife. The jury has now been able to appreciate the value that the People sought by introducing that knife for identification. If there was an objection lodged, the Court ruled, and for identification such as a demonstrative board or a demonstrative piece of evidence, that has now shown and exhausted its usefulness. Mr. Kelberg realizes and recognizes indeed that the actual knife would never be allowed to be brought into the jury unless accompanied by some juror attendant or bailiff. Therefore, there's no real need to have that particular--those particular knives introduced. As to their argument concerning exhibit 75 and 76, it was a creative bit of lawyering, I'll give Miss Clark credit, seeking to pull from the air some colorable argument for why a particular photograph is relevant. But I do not think, your Honor, with all due respect that rank speculation should ever provide the basis for relevance or should be a substitution for relevance, particularly given this record where there is no evidence whatsoever that gives any insight into Miss Brown Simpson's actions that night after the phone call from her mother, Juditha Brown. Unless the Court has any other questions, I'll submit the matter.
THE COURT: All right. Thank you, counsel. All right. As to item no. 8, which is the lesson plan that was testified to by Mr. Shipp, I'm going to take that objection under submission. I want to review the transcript because I don't have a clear recollection in my mind as to what Mr. Shipp said about that. As to no. 9, that is withdrawn. As to 10 and 11, the Court's recollection is similar to Mr. Darden's, that Denise Brown did testify that she did in fact take those Polaroid photos, and I believe that there was a sufficient foundation laid for that--those two photographs. The objection on those will be overruled. Court's ruling on no. 13, sustaining the objection, will remain. As to 14 and 15, those photographs are relevant to the nature of the relationship between Mr. Shipp and Mr. Simpson. There was a foundation laid. Objection will be overruled. As to 43, the board, the interesting thing is that there is no overall photograph available that depicts each of these items and their relative location, and the position of items is critical both to the Defense and to the Prosecution as to their relative positions, whether anything was moved. There is no other source of information other than this series of photographs, each one depicting something that is unique to that photograph which is relevant to the case. So I will overrule the objection to that as well. As to 59-A and B, the objection was previously sustained to 59--I'm sorry. All right. As to 59 and 59-A and B, the objections--Court's ruling previously will stand. The objections will be overruled.
As to 75 and 76, which are the photographs of the kitchen at Bundy and the close-up of the--what appears to be a butcher knife on a--on the island counter, what that indicated to the Court was, one, it was a very clean kitchen; two, that there was no disorder in the condo itself. There was an issue as to whether or not any of the assault had taken place inside the Bundy residence. There was testimony regarding whether or not there was any discoloration in the carpeting, whether or not there were any apparent footprints, any blood that was tracked into the Bundy condo. And to the Court's recollection, these are the only two photographs that exist of anything in the interior. It goes to the nature of the investigation good and bad, the fact that these are the only two photographs taken. We have no photographs of the entry exit in the garage, we have no photographs of the interior of the living room. I think there is significant probative value and the objection will be overruled. As to 132, 133, 134, these are the photographs of the garage. The Court's recollection is that Mr. Kaelin did in fact testify to the items that are depicted there, the interior of the garage.
The Court also notes that this was one of the items that was on the jurors' visit itinerary and that the jurors did themselves look into and examine the garage and its contents. I believe there's a sufficient foundation and the objection to those will be overruled. As to 334, 335, the knives that were used by Mr. Kelberg for demonstration purposes, the demonstration boards that depict single-edged, double-edged knives are two-dimensional. The knives themselves are three-dimensional. They are for the purpose of demonstrating class characteristics only, which I think are important to see in three dimensions. So the objection will be overruled. As to 337, the lines of Langer, this is an interesting concept in explaining why wounds appear as they do, something that a layperson doesn't ordinarily consider or know about. I think its probative value is significant and I will overrule the objection. As to 358-A, the Court will sustain the objection to that. As to 358-B, Court will overrule the objection and that photograph is cropped as directed by the Court. As to the overall category of the autopsy photographs--
MR. DOUGLAS: Your Honor, 352 and 355?
THE COURT: Haven't gotten there yet. I was just about to flip the page. As to the autopsy photographs, which are 352, 354, 355, 358, 360, 361 and 362, the Court previously had taken a considerable period of time to consider each and every one of the photographs that was submitted, and the Court issued its ruling in written form previously. And as the Court observed yesterday in discussing the matter again with Mr. Cochran, that those photographs now combined with the testimony of Dr. Lakshmanan take on additional meaning and probative value, and the objections under 352 renewed are again overruled. All right. Mr. Douglas?
MR. COCHRAN: Did you rule on 295?
THE COURT: I'm sorry?
MR. COCHRAN: 295?
THE COURT: No, I did not. 295 was Dr. Lakshmanan's resume if I'm not mistaken, correct? And that objection will be overruled. All right. Do we have anything that's left on that?
MR. KELBERG: Your Honor, I think there was. Mr. Douglas objected to 359. I'm assuming the Court is adopting its ruling from yesterday. That was one of the ones Mr. Cochran renewed his 352 objection to. Those are the photographs at the scene for the environmental sources for the blunt force trauma to the back of Mr. Goldman's hands and arms.
THE COURT: Was not one of the items raised today.
MR. KELBERG: It was not? Oh, it's on my list. I'm sorry.
(Peo's 1 through 7, 10 through 12, 14 through 15, 17 through 86, 97 through 157-A, 160 through 362, 364-A through 406 and 412 through 488=admitted into evidence)
(Peo's 358-A = not admitted)
THE COURT: All right. All right. Next item of business, Miss Clark, are you going to advise the Court or, Mr. Darden, are you going to advise the Court as to which of these exhibits you are going to be withdrawing, additional exhibits?
MS. CLARK: People would withdraw People's 54.
THE COURT: Which is? I show 54 as a poster board.
MS. CLARK: No. That was on my list to look at. Excuse me, your Honor. The People would move to withdraw 66-A, which is--
THE COURT: All right. 66-A is a computer printout of a diagram of the Simpson residence with red markings.
MS. CLARK: And 69, which is a transcript of the calls to the Coroner's office by Detective Phillips. I believe that that transcript is just hearsay and it was not capable of authentication in terms of accuracy because they were--the transcript was not prepared by a certified reporter. In fact, there were I think indications even in the testimony to some inaccuracy. And 70, which is a police manual, release of information section, People will withdraw. 102--and with respect to that, the reason for withdrawing it is the witness' testimony is what is in issue and what is important rather than treatises because the witness is not an expert. 102, the letter from Kathleen Bell to Detective Fuhrman, unless and until Miss Bell testifies to authenticate that letter, I don't think that there is a foundation for its admission. It was to the Defense, that letter, as I understand it. People's 124, video taken of the Defendant being handcuffed. People's 144, four-page statement taken by the police of Mr. Kaelin. It's a hearsay document. I do not see the relevance in light of the fact that the witness testified at some length to his recollection of the relevant events in this case. And then I believe that 158 and 159, your Honor, were marked only for motion, but they are crime scene logs for Rockingham and they were not marked for the purpose of admission to the--into evidence before the jury. So I just wanted to point that out. Also, we're also going to withdraw 363, which was the prime time live tape because in its place, we're going to ask to admit--we're asking to admit 363-A, which is the redacted version of the same. And may I have one moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: And I would proffer to the Court again my previous offer, that we can really handle this perhaps better at the conclusion of the case for both sides. I compiled this list this morning in case the Court wanted to address this now. But if the Court would prefer not to. Or Miss Lewis reminded me, without prejudice, we could move to withdraw at a later time, that this is not the final say in terms of what we seek to withdraw.
MR. DOUGLAS: One difficulty, your Honor, as the Court will soon learn, many if not most of the exhibits which the People may seek to withdraw, the Defense will seek to introduce. Therefore, if there's going to be a document to be withdrawn, we need to know now so that if there's a problem with further foundation or whatever, we can then call those witnesses to lay the proper foundation and not be forced at the very end of the case to have an inadequate record. So there's great prudence and reason for having those choices and decisions made at this point.
THE COURT: Well, my understanding of what just occurred is that Miss Clark is indicating to the Court which Prosecution exhibits they wish to withdraw, and they're giving the Court and Defense the option to either address the issue now or at the conclusion of the case.
MR. DOUGLAS: Very well.
THE COURT: But my--since you have these--this list now, you can have the opportunity to look at the exhibits themselves, examine the record yourself to see if there's a sufficient foundation. A couple of these obviously are questionable because of their nature.
MR. DOUGLAS: Okay. As to 66-A, we have no objection.
THE COURT: All right.
MR. DOUGLAS: To being withdrawn.
(Peo's 66-A for id = withdrawn)
MR. DOUGLAS: As to 69, which is a transcript of the telephone call from Mr. Phillips to the Coroner's office, we would seek to introduce. We do think that the jury does have the benefit as well of the actual tape-recording. We think that there are sufficient guarantees of trustworthiness, such that there can be no reasonable hearsay objection to that document.
THE COURT: Well, Mr. Douglas, my preference at this point would be, this list is to put you and the Court on notice as to what the Prosecution doesn't intend to offer at the conclusion of the case in total.
MR. DOUGLAS: So the Court would rather us wait until--
THE COURT: Yes. Because some of these may not even be relevant by the end of the case.
(Discussion held off the record between Defense counsel.)
MR. DOUGLAS: Your Honor, we would like to move our exhibits into evidence so that we will then know at this point if there is, for example, at this stage a foundational objection, a--an authentation--I'm sorry--an authentication objection at this point as we begin our case. We will then be prepared to combat and to respond to those sorts of objections. Such as foundation or authentication, we will have the witnesses available, and there is I think benefit to the process to have those questions resolved at this point.
THE COURT: All right. Miss Clark, any response to that?
MS. CLARK: Well, your Honor, I guess Mr. Douglas was not here, but we agreed yesterday in chambers that we would not be doing that today, and of course the People relied on that. So--
MR. DOUGLAS: We can take it up Monday morning, your Honor.
THE COURT: No. How many exhibits do you have? My recollection is we have a couple hundred Defense exhibits at this point.
MR. DOUGLAS: Your Honor, we have 224. Can we do it, your Honor, the first available opportunity like on Friday afternoon perhaps?
THE COURT: I think our Fridays are booked for the rest of the month.
MR. DOUGLAS: Can we do it 8:30 Monday morning so that we're not taking time from the jury? I will be here at 8:00 o'clock if the Court pleases.
THE COURT: Well, I don't think at this point the Prosecution is under an obligation to tell you what their objections are.
MR. DOUGLAS: Well, your Honor, certainly with regard to Prosecution exhibits that they don't wish to introduce, we should then be able to give them notice if you will and to give the Court notice that we seek to introduce them.
THE COURT: And they've now given you a list of those they wish to withdraw.
MR. DOUGLAS: And I would like to tell the Court which of those we would like to introduce. May I do that?
THE COURT: Yes.
MR. DOUGLAS: Very well. We seek to introduce exhibit 69, 70, exhibit 102. We'll lay the foundation by calling the witness. Exhibit 124 is central to our claim that there was a premature rush to judgment and we seek to introduce that. We think that there has been a proper foundation laid at this point. Exhibit 144, we seek to introduce. I find it curious that the People would even introduce a document which they would believe to be hearsay. We think there has been adequate foundation laid and that is not hearsay if offered by the Defense. Exhibits 158 and 159, there was an adequate foundation laid by Detective Luper. If offered by the Defense, it is not hearsay. We seek to introduce both of those. The crime scene logs were both introduced--
MS. CLARK: Not before the jury. Not before the jury.
MR. DOUGLAS: We'll lay the foundation for those documents, your Honor.
THE COURT: And 363-A. 363, 363 a.
MR. DOUGLAS: One moment, please.
THE COURT: That was the video tape of Dr. Golden.
MR. DOUGLAS: Submit the matter.
THE COURT: Submit it? Okay.
(Peo's 363 and 363-A for id = withdrawn)
THE COURT: Allrighty. Anything else?
MR. DARDEN: A couple of items, your Honor. With regard to discovery, the Defense of course has given us eight or nine names of individuals they expect to call on Monday.
THE COURT: My recollection is, Mr. Douglas at the beginning of his comments, indicated that he was going to turn over at the first break a number of statements, et cetera, et cetera, to you.
MR. DARDEN: Okay. There is still the three-day rule however. We should be entitled to a list of witnesses beyond Monday at this point. In addition, we have lodged objections to a number of the witnesses that they intend to call on Monday, which I expect will take some time away from the jury to resolve.
THE COURT: All right. You've lodged what objections?
MR. DARDEN: Mr. Yochelson just filed it and I do not have the P's and A's here in front of me. But we--
THE COURT: But it's been filed with the Court?
MR. DARDEN: They've been filed with the Court. We have objections--
THE COURT: All right. I haven't seen whatever was filed.
MR. DARDEN: At any event, I suspect that the--that there won't be much testimony taken Monday. I think our objections are well-taken as to some of those individuals. At any event, I would like the witness list for Tuesday and Wednesday and I would like in--the order of witnesses for Monday, which I believe yesterday Mr. Cochran indicated he would provide to me. We also have another issue before Mr. Cochran steps up--
THE COURT: No. Let's take them up one at a time.
MS. LEWIS: One at a time?
THE COURT: Mr. Cochran.
MR. COCHRAN: Yes. Your Honor, with regard to this, we have last Wednesday given the Prosecution a list of the witnesses we expected to call. As to the exact order, before we leave today, I'll talk to Mr. Darden about that. First of all, this motion they filed, apparently they haven't looked at their own witness list. Mr. Douglas--if they look at the witness list that they were given on March 1st, 1995, we had the names Mary Collins, Carol O'Connor and Sidney Simpson. They've been given those names back in March. There are no reports regarding those two witnesses. And what I told the Prosecution, for certain of these witnesses, there are absolutely no reports. We've had no investigator talked to them. And I will share with them--we have a rule that we've all agreed upon. Lawyers' notes, we don't turn over, if there's any lawyers' notes or lawyers' reports. And with regard--there are no reports regarding the first two. As to Bender and McKaye, they have apparently interviewed those witnesses themselves. They've interviewed Christian Riechardt. And I can represent to the Court that regarding Arnelle Simpson, Carmelita Durio and Eunice Simpson, there are no reports. Those are the Defendant's mother, Mr. Simpson's mother, his daughter and his sister. And so what the Prosecution would like to do as usual is to get inside our heads and Defense's head. They've been trying to do that from the beginning. And basically, these are witnesses I've given them the witnesses and there are no reports. What else is there to give them at this point? And I think that's fairly clear. As to the order, I'll be glad to give them the order. But these other witnesses, Connor and Collins have been on their list since March. So I've indicated to them that I would speak with them and tell them what I expect the witnesses to go into. This whole idea of a 352 or an offer of proof for every witness is preposterous. I mean, we've been trying cases for a long time. We know what's relevant. And I'm sure your Honor will guide us appropriately. We don't want to delay this trial. We want this case to be over as soon as possible. We don't want to take--I promise you we will not take eight days on the direct examination of any witness. I promise you that. I promise our direct will be much quicker and we'll get this case over. And we don't want to delay with a lot of motions. I mean--and we will give the Prosecution a list that will stand and will not change like every day. And I'd remind the Court that Mr. Darden had given me a list of five domestic discord witnesses like in the morning and later that morning, Miss Clark said, we're not calling any of those witnesses, and I had all my books here and everything. We're going to try to give witnesses, stick by it and go forward. I don't want to have any delays.
THE COURT: All right. So you will provide Mr. Darden with your order of witnesses for those first three--
MR. COCHRAN: Yes. I will definitely do that. And further, I will do something I'm not even required to do. I'll talk to him about what I expect the witnesses to generally say, because there are no reports, where there are no reports, with regard to the others.
And as to Christian Riechardt, for someone to stand here and say that Christian Riechardt's testimony is irrelevant and immaterial, Mr. Riechardt is the man who had ended a relationship which he had precipitated with Faye Resnick, who knows about her--the intervention on June 8th. He knows that she moved into Nicole Brown Simpson's residence, that she was so involved with drugs on June 8th that they had to have an intervention and put her in this drug treatment place. He is very relevant with regard to also the events of the 12th. So I don't want to go into all of this, but, your Honor, we are quite aware of what is relevant. And so we have a right to put on--we don't have to put on any case at all. But we choose to put on a case. We don't need their advice. We're not asking them what we should put on. We want to do what's right under the evidence, and I'm sure you'll hold us to that and we'll do that. We want to move through this case. We don't want these delays every minute. We know what's--basically we know what we have to establish, and we'll do that and get out. There's one other thing while I'm here if I might, your Honor. We would like at this time to ask through the People to make Sidney Simpson available for interview. And although we would certainly not want to have to have her testify, there are certain very, very relevant testimony that she has to offer, and I would ask to be able to talk to her, and in the alternative, with Miss Clark, to perhaps enter into a stipulation like we did yesterday with Mrs. Brown that has to do with the remarks that were made at the police station on the early morning hours of June 13th, wherein she indicated that she had heard her mommy talking to her mommy's best friend and was crying after that conversation. And we think that's very relevant and we would like to put on those--we would like to have that conversation with Sidney Simpson and would--hopefully down the road, we can work and obviate the necessity of calling her if at all possible. I'll make every effort to do that if they're willing to do that.
MS. CLARK: We will make every effort to keep that little girl off the stand because I think that would be a terrible tragedy.
MR. COCHRAN: Yes. We agree on that.
MS. CLARK: May I quickly refer to just a couple things, your Honor? My exhibit list descriptions are not as sharp as they should be, and with respect to 54 and 66-A, those are just diagrams that may be illustrative. I can see why the Defense would not object. They're probably helpful to both sides. And so I would ask to withdraw my request to withdraw just with respect to those two items.
MR. COCHRAN: Which two?
MS. CLARK: 54 and 66-A. They're just diagrams.
MR. DARDEN: Your Honor, with regard to the witness list that Mr. Cochran was kind enough to hand to me, this is not our witness list. This is the Defense witness list. As for Mr. Riechardt's testimony, we've provided the Court with a transcript of the interview we did with Christian Riechardt. His testimony in this case is irrelevant. The issue of Faye Resnick is irrelevant to these proceedings. And if Mr. Riechardt has information regarding June 12th, it is information that I do not have, and we are seeking from the Defense an offer of proof. And I think we have every right to an offer of proof. And as far as this practice of interviewing witnesses, not taking notes, not allowing Defense investigators apparently to interview the witnesses, or in the alternative, allowing their investigators to interview witnesses and then not taking notes and not preparing statements is more than objectionable I think. I think that if the Defense is interested in seeking the truth as they claim, so often claim that they are, you would think that they would prepare notes, provide the Prosecution with the discovery that we are due and entitled to. At any event, we have a right to an offer of proof and we insist on that.
THE COURT: Well, how about Collins and Connor? What are these people going to testify to?
MR. DARDEN: Good question.
MR. COCHRAN: Is he going to answer, your Honor, or are you asking that of me?
THE COURT: I'm asking.
MR. COCHRAN: Okay. Thank you, your Honor. I'll address your Honor.
THE COURT: Since they're names that have not come up before.
MR. COCHRAN: They are names that on the witness list as I indicated to the Court and they've been there because--and I know they're on there because each day when we give--when we change the witness list, the press immediately asks us about when we put Sidney Simpson on. So we got a lot of calls around that time, which we don't want to call Sidney Simpson--
THE COURT: Interesting, but doesn't answer my question.
MR. COCHRAN: Right. No. I just wanted to point that out. But now to your question, your Honor. With regard to those two ladies that you're talking about, I think they're very, very relevant. Without previewing our Defense, which we are not required to do, but--and I'm going to respond to your Honor's question. These are--first of all, let's take the two names--Miss Connor is a lady who attended a I think it was a $25,000 plate dinner and sat at a table just next to Mr. Simpson on the night of June 11th, 1995--1994. She provided a picture that was taken of Mr. Simpson and Paula Barbieri at that particular dinner. It should be very relevant with regard to demeanor. She had been on the list. We don't need a statement from her to know that. And with regard to Mary Collins, Mary Collins--and we think the evidence will show--by the way, she does authenticate a photograph which I think I used back at the opening with regard to Mr. Simpson on that Saturday night the Court will recall. And Mary Collins is a lady who is an interior designer, your Honor, and we expect to call her. Mr. Simpson met with her Tuesday of the week the 12th or actually be the week of June--June 7th. It would be Tuesday, June the 8th I guess it would be or somewhere like that, 7th or 8th. And she's an interior designer. And he at that time met with her and made arrangements to have his entire bedroom redesigned and decorated. It has to do with the events of the week leading up to that--this event. Entirely relevant. As I said, they can't determine our case, your Honor. We determine the case. And I think you're going to find if I stand before you and say we've got relevant witnesses, you know, we're not just making up witnesses.
THE COURT: Mr. Cochran, I understand that. But the problem is, if you have no notes to turn over--
MR. COCHRAN: Yes.
THE COURT: --then an offer of proof is in order here just to see if it's relevant.
MR. COCHRAN: All right. Well, that's I think appropriate, and I would be more than happy to comply with you. But I think the Court should balance that with the fact we will have as we go along many of the witnesses with regard to time and things like that. They know. They've interviewed more than we have. But certain witnesses--and the Court was for a short time on the Defense. It's not necessary to have--we don't have 250 investigators assigned as the Prosecution does and the LAPD. So we have to do a lot of things ourselves over the phone. And some witnesses you don't take statements from because you move on. We've also been in trial, as the Court is aware, since September 26th. Mr. Shapiro's been here since about June 15th or been on this case and I've been involved since July 22nd. So that, you know, some of these things you do by phone and it's not necessary, and my learned colleagues will find that out when they get on the Defense side some day. But, you know, you just move ahead, and we do have memories and we're going to do the right thing. And I'll share with them exactly what these witnesses expect to do when you suggest it's necessary.
THE COURT: All right.
MR. COCHRAN: We have one other motion to, your Honor.
THE COURT: Yes. All right. Miss Lewis, good morning.
MS. LEWIS: Thank you. Good morning, your Honor. We want to make sure the Defense understands we do not have 200 or anywhere near that investigators. And Miss Clark has been working on this case since June 14th. 13th. Sorry. I have since July 21st. Mr. Darden's been here a long time as well. One thing that troubled me--by the way, if I'm considered--and I would be happy to be so considered. If I'm considered a learned colleague of Mr. Cochran's, I'd like him to know I am never going to be doing criminal Defense work. So I guess I won't have the opportunity to find out what he indicated I might find out. But all of that aside, your Honor, this morning, the Defense provided two lists, one that says "Withdrawn witnesses," the other which says "Alphabetized list," and which is presumably the rest of the universe, those witnesses whom they still may be calling. A cursory glance of these lists has already revealed that there are ambiguities which are significant with regard to three potential DNA expert type witnesses, and we would like those cleared up immediately. For example, Dr. John Gerdes, who's been the topic of various discussions, his name appears on neither of the lists of withdrawn witnesses nor on the list of witnesses they may still call.
THE COURT: Well then, I assume that that means he won't be called as a witness.
MR. DOUGLAS: He will be called, your Honor. That's a mistake.
THE COURT: All right.
MS. LEWIS: That's a mistake Mr. Douglas just indicated and that he would be called. There are also two witnesses who are on both lists. They are Dr. Seymour Geisser and Dr. Don Reilly. They're both on the withdrawn list and the list of people they're going to call.
MR. DOUGLAS: They're both withdrawn.
MS. LEWIS: They're both withdrawn? Your Honor, my final comment I want to make is that at this point in this trial, unlike Mr. Cochran's commentary, the Defense is required to preview its case. I just want a reminder that we are operating under reciprocal discovery, and the whole reason for that is to ascertain the truth in a matter. We're not here for the Defense to wait until the last minute to preview their Defense. If this is a search for the truth, they should have no hesitation in immediately setting forth all of their witnesses' statements and what they will be saying.
THE COURT: Well, as you now know, I'm not reluctant to preclude evidence.
MS. LEWIS: Yes. Thank you.
THE COURT: All right. Okay.
MR. DARDEN: As to the issue of Connor and Collins, you want to take up the 352 issue Monday morning or--
THE COURT: Monday morning.
MR. DARDEN: Okay. That's fine.
THE COURT: All right.
MR. DARDEN: With regard to these witnesses, if I may, your Honor--
THE COURT: Yes.
MR. DARDEN: --we have no bio information about these witnesses, where they live or telephone number or anything. We might like to interview these witnesses. Would you kindly ask the Defense to provide us with the addresses and phone numbers?
THE COURT: All right. I'll direct Mr. Douglas to do that after we conclude this morning. All right. I see an 1118.1 motion that I have filed that was filed with the Court yesterday. Mr. Cochran.
MR. COCHRAN: This morning. Actually this morning, your Honor. Actually was filed this morning, but that's all right. Who's counting, your Honor? With regard to this motion, your Honor, this motion is submitted. Thank you very kindly.
THE COURT: Miss Clark.
MS. CLARK: Mr. Cochran is standing on the lengthy and detailed points and authorities he filed. I think it's the shortest motion I've ever seen, and the People will also submit it. Unless the Court needs to hear from the People as to any particular issue, I see no reason to belabor this.
MS. CLARK: Come on, your Honor, please. Motion for discovery from the Court. Do you want to be heard? Do you want us to be heard?
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: I don't think that the Court needs to hear from us though.
THE COURT: All right. I believe at this point, the Prosecution has met the burden that's required at this point. So the motion will be denied.
MR. COCHRAN: Your Honor, there's one last thing, and let me--may I say one word to Miss Clark? Thank you.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. COCHRAN: May we approach first without the reporter at first?
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Mr. Douglas, you have--
MR. DOUGLAS: Your Honor, I was able to obtain Miss Connor and Miss Collins' home numbers. I hope that the Prosecution calls them with discretion.
THE COURT: All right.
MR. DARDEN: We don't act like them.
MR. COCHRAN: We ask them not harass these witnesses also, your Honor.
THE COURT: All right. Mr. Cochran, anything before we conclude this morning?
MR. COCHRAN: Yes, your Honor. Yesterday, in your Honor's statement regarding a pending jury matter, your Honor indicated the interviews that you conducted--and it seems to me that last night and perhaps this morning, in seeing and watching the news, the press has now targeted the wrong juror, and it seems to me unfair to former juror no. 2 that people have been camped out there at her home because--I think the record should be clear that she is not the target of any misconduct or anything with regard to this latest thing. And I wanted to just make that clear. I thought it was unfair to her and somebody should speak up regarding that, and I spoke to Miss Clark about it.
MS. CLARK: Correct.
MR. COCHRAN: They have the wrong juror.
THE COURT: I had not seen any of the coverage, Miss Clark.
MS. CLARK: No. I had not seen the coverage either, but I totally agree with Mr. Cochran, that that was unfair.
THE COURT: All right.
MS. CLARK: May we make one request of the Court? That we be allowed to photograph again Defense exhibit no. 233--I mean the Defense exhibit concerning the blood vial. And the photograph is now in evidence as People's 233. We would like to take another photograph that would be a little clearer. Apparently that one is kind of fuzzy. If that would be acceptable, then we would substitute that for the 233 that's in.
THE COURT: All right. You can do that this afternoon.
MS. CLARK: Thank you, your Honor.
THE COURT: All right. Anything else? All right. We'll stand in recess, 9:00 o'clock Monday. All right. Let me see Miss Clark and Mr. Cochran.
(A conference was held at the bench, not reported.)
(At 11:55 A.M., an adjournment was taken until, Monday, July 10, 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,)
Vs.) no. BA097211)
Orenthal James Simpson,)
Reporter's transcript of proceedings Friday, July 7, 1995
Volume 182 pages 35408 through 35485, inclusive
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
I N D E X
Index for volume 182 pages 35408 - 35485
Day date session page vol.
Friday July 7, 1995 A.M. 35408 182
LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden D Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
(None this volume)
ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
(None this volume)
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
16 & 16-A - 35412 182 (Withdrawn)
87 thru 96 - 35412 182 (Withdrawn)
407 thru 411 - 35413 182 (Withdrawn)
9 - 35427 182 (Withdrawn)
13 - 35429 182
1 thru 7 - 35458 182
10 thru 12 - 35458 182
14 thru 15 - 35458 182
17 thru 86 - 35458 182
97 thru 157-A - 35458 182
160 thru 362 - 35458 182
364-A thru 406 - 35458 182
412 thru 488 - 35458 182 (Sustained)
358-A - 35458 182 (Withdrawn)
66-A - 35462 182 (Withdrawn)
363 & 363-A - 35466 182