Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Blasier, Mr. Uelmen, Mr. Kardashian. The People are represented by Miss Lewis and Mr. Goldman. Counsel, we have a number of issues to discuss before we start with the jury. I have the jury upstairs in the lounge, since we will probably be at this for a while. What I have scheduled is the first morning session until approximately 10:30 for motions this morning, but we have a number of matters we need to take up. Counsel, what is your pleasure as far as which motions to address first? Miss Lewis.

MS. LEWIS: Your Honor, I think one of the first things maybe scheduled for today was a hearing with regard to collateral impeachment witnesses of Detective Fuhrman. May we go ahead and handle that one?

THE COURT: All right. Good morning, counsel.

MS. LEWIS: Good morning. Your Honor, this is a motion which was brought because of the Defense desire to use additional extrinsive evidence to collaterally impeach Detective Fuhrman's credibility. As the Court is well aware, you have wide discretion in the use of extrinsive evidence for collateral impeachment and in collateral impeachment as a whole, and it is an area of--where many courts do exercise their discretion in precluding substantial evidence of collateral impeachment because it does tend, no matter what the issue and what the trial, to take things off of track in terms of the probative evidence in the case. Now, in this case early on the Court heard the offers of proof from the Defense with regard to a variety of potential witnesses with regard to Detective Mark Fuhrman. And the Court ruled, if I recall, that because Kathleen Bell had indicated that the racial statements she attributes to Detective Fuhrman talked about a black and white couple together and also implied the manufacture of evidence, that the Court felt because--

THE COURT: No. It directly implicated the manufacturing of probable cause.

MS. LEWIS: All right. Exactly. Exactly. And I believe that is what the Court felt was most probative about that particular offer of proof from the Defense, if I am not mistaken, so that is why the Court used its discretion in terms of allowing the Defense to use that collateral impeachment, extrinsive evidence of collateral impeachment. And later after that the Defense came up with Andrea Terry who corroborates in some ways, though she actually--she actually contrasts with Kathleen Bell on an important point, but from the Defense way of thinking apparently she corroborates Kathleen Bell and she as well indicates or alleges that the detective used a racial slur with regard to black and white couples being together. So for the combination reason she indicated black and white couples and she tended to corroborate, in the Defense eyes at least, Kathleen Bell, the Court allowed cross-examination with regard to her statement as well. Now, in this case early on when the Court made those rulings the Defense had impliedly, if not openly, asserted over and over and over that they would be producing evidence that Detective Fuhrman had either the opportunity to plant the Rockingham glove or actual evidence that he did so. And now here we are through the People's case, most of the way, I understand, through the Defense case, and they still have no substantial evidence of any police conspiracy, they have no evidence whatsoever that Mark Fuhrman had any opportunity to plant evidence, had--that he actually did plant any evidence. And I'm sure the Court appreciates the distinction when you look at the Hall type of cases, but I'm not even talking or drawing that analogy today, your Honor, with regard to Hall. I'm asking the Court to look purely at the probative value of extrinsive evidence to impeach Detective Fuhrman, given the lack of any evidence in this case linking him to actually doing anything wrong. That makes the probative value of him being a racist almost nil, because even if the Defense were to successfully convince the Court or anyone else that Detective Fuhrman made these racial slurs and is a racist, that does not prove, that does not show any kind of a link to him actually planting the Rockingham glove. So this wish on the Defense part has just not come true. They have not been able to come up with any evidence that links him to that. Consequently, the evidence showing that he is a racist does nothing in terms of proving their case. On the other hand because of the inflammatory nature of the remarks at issue, especially in front of this predominantly African American jury it does have a substantially undue prejudicial impact on the People. It is something that is abhorrent to hear and the jury is going to be hearing it already in the form of Kathleen Bell and another racist statement in the form of Andrea Terry's testimony. The Court has I believe generally allowed the Defense, and based on good reasons that your Honor indicated, but has generously allowed the Defense use these witnesses. They go to this collateral impeachment issue. That is, when you consider the detective's credibility, it is just not important--as important as it may have once appeared. We have not only the discovery of the glove at Rockingham, but other overwhelming evidence of guilt in this case: The DNA evidence of Bundy, the size and make of the footprints, the shoeprints, rather, left at the Bundy scene, the trace and fiber evidence, the lie to Allan Park that the Defendant said that he was sleeping when Allan Park had just seen him enter the residence. There is a lot of evidence in this case. This case does not hinge for one moment on the credibility of Detective Fuhrman.

THE COURT: But do you think the Defendant owes an explanation to a limousine driver where he has been?

MS. LEWIS: I don't know if he does or not, your Honor, but the point being he didn't have to say anything. If that were the case, if he owed no explanation, he didn't have to say anything. He certainly didn't have to say "I've been sleeping." The point is that he did say that and that it was a lie, so why did he make a point of making a lie to a limousine driver when you are right, he didn't owe him any explanation whatsoever. He simply volunteered that lie, and I would say as an alibi of sorts, though it changed over time and as the trial got going through opening statement and to chipping of golf clubs and so forth. Now, in addition, your Honor, with regard to these recently acquired witnesses from the Defense, this Court has heard numerous motions for months precipitated by the Defense pitchess motion last fall about allegedly racial slurs attributed to Detective Fuhrman. All of that has been broadcast repeatedly to the media. Detective Fuhrman's potential or alleged racial animosity has been an issue before the whole public for many, many months. And in addition, when Mr. Bailey cross-examined Detective Fuhrman, that again brought it to the forefront of this trial, so for the Defense to now have recently acquired witnesses, recently discovered witnesses, renders their credibility highly suspect, these people who apparently have only recently come forward. In addition, to the best of my knowledge, and perhaps we can be enlightened since the discovery on these witnesses is very rough and inadequate to rely on, know what time period they are talking about. It is my understanding from other sources that these witnesses alleged overhear of statement by Detective Fuhrman went back to the mid-1980's possibly `87, `88. Perhaps the Court can ask for a detailed offer of proof in that regard. But the remoteness of those statements, in addition to their being additional witnesses for collateral impeachment on the detective's credibility when his credibility is really not that important now at this stage of the trial, all of that militates in favor of the Court exercising a wide discretion that it has and excluding those witnesses. And your Honor, since I want to save a little bit of time in rebuttal, I think I will submit with that for this part of the argument.

THE COURT: All right. Mr. Uelmen. Good morning, sir.

MR. UELMEN: I think much of the argument with respect to this motion really misses the point. The Defense is less interested in proving that Detective Fuhrman is a racist than we are in proving that Detective Fuhrman is a liar. When the glorious moment finally comes when your Honor instructs the jury and sends them out to deliberate, I'm confident that one of the instructions you will give--and the reason I'm confident is because both sides will be requesting this instruction, the Prosecution already has and we certainly will--

THE COURT: I just smile as your thought that that might be a glorious moment.

MR. UELMEN: The instruction I'm referring to is Caljic 2.21.2, which will tell the jury that: "A witness who was willfully false in one material point of his testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all of the evidence you believe the probability of truth favors his testimony in other particulars." Now, your Honor can certainly anticipate that we will argue that instruction with respect to the testimony of Detective Fuhrman because in that testimony, no. 1, he flatly denied the Kathleen Bell incident and set up really a test of whether we are going to believe his testimony or believe the testimony of Kathleen Bell. And then he went on in the examination by Mr. Bailey to testify as follows: "And you say under oath that you have not addressed any black person as a Nigger or spoken about black people as Niggers in the past ten years, Detective Fuhrman?

"Fuhrman: That's what I'm saying, sir. "Question: So that anyone who comes to this Court and quotes you as using that word in dealing with African Americans would be a liar, would they not, Detective Fuhrman? "Answer: Yes, they would. "Question: All of them, correct? "Answer: All of them." Now, this testimony, quite simply, dug a hole for the Prosecution, a very deep hole, and over that hole is a headstone that reads "Falsis in unum, familiar in omnibus," and that is precisely what Caljic 2.21.2 is going to tell the jury. Now, we propose to present not only the testimony of Kathleen Bell and Andrea Terry to establish that the conversation alluded to by interracial couples did take place, but we will also present the testimony of Carol Hannack and Natalie Singer. Miss Hannack, the evidence will show, dated Detective Fuhrman's partner, Tom Vettraino in 1987, practically contemporaneous with the Kathleen Bell incidents. She lived in an apartment in west L.A. on several occasions when Mr. Vettraino came to that apartment to pick up Miss Hannack, he was accompanied by Detective Fuhrman. And in conversations that took place at that time Mr. Fuhrman directly used racial epithets including the word "Nigger," and expressed great racial animosity in the presence of Miss Hannack and also in the presence of Miss Hannack's roommate, Natalie Singer, who will testify that she was present on these occasions, that she heard these epithets and that she was offended by them, that finally she refused to let Mr. Fuhrman come into the apartment any more. And finally, we will not be calling Maximo Cordoba at this time but we do propose to call Roderick Hodge, a gentleman who was arrested by Detective Fuhrman on several occasions in the period 1986 to 1987, again contemporaneous with the Kathleen Bell incident. He will testify that his father is African American, his mother was Caucasian, that this fact was apparently known to Detective Fuhrman, that Detective Fuhrman had arrested him on several occasions and on one of these occasions, in January of 1987, after arresting Mr. Hodge for a drug offense, he turned to him in the backseat of a police cruiser and said, "I told you we'd get you, Nigger," and then in a subsequent strip search of Mr. Hodge and several other African Americans, who were arrested with him, he had them bend over in the course of a strip search and said, "You guys look all alike to me." Now, the significance of this evidence is not simply that it shows that Detective Fuhrman is a racist. This evidence shows that Detective Fuhrman is a liar. And the importance of these witnesses is that they all corroborate each other. We haven't heard any concession from the Prosecution that they are ready to concede the credibility of any of these witnesses. I think we can anticipate that these witnesses will be attacked. In fact, they already have. Detective Fuhrman has already called them liars. He has already contested the testimony of Kathleen Bell, so we cannot be deprived now of the opportunity to present evidence to persuade the jury that in fact Detective Fuhrman was lying when he testified and that that lie should lead the jury to distrust all of his testimony. Your Honor of course already ruled on the issue of whether this issue was material and I believe your Honor correctly ruled that the issue of bias is not a collateral issue. The question of whether it is collateral really goes to its cross-examination just as much as the--the use of extrinsive evidence. If the cross-examination of bias--as to bias is proper, then extrinsic evidence is proper when the testimony proves to be false. The only--the only real question being raised about this evidence is the appeal to your Honor's discretion under 352 to exclude it as somehow cumulative, and here I think you have to put this in the context of a seven-month trial, six months of which was devoted to the Prosecution case.

We are now getting to the heart of the Defense case and to exclude this evidence as cumulative would simply be cutting corners by cutting the heart out of the Defense case. There is no question but that the central issue in this trial is the credibility of Detective Fuhrman and that credibility does not come into question just in the context of whether he planted a glove or not. In our original papers we pointed out eleven different aspects of Detective Fuhrman's testimony that we are questioning and that we want the jury to question and that cuts across the entire initial investigation of this case from the discovery of a blood spot on the Bronco to the alleged discovery of the glove and the circumstances of the discovery of that glove. There are many aspects of his testimony that are of crucial significance to this case so that the credibility of this detective is unquestionably a central issue in this case. We are less interested, I again say, in proving that he is a racist, as we are in proving that he is a liar, and these five witnesses corroborating each other, we believe will establish at least a reasonable doubt in the mind of this jury as to whether any of the testimony presented by Detective Fuhrman should be believed.

THE COURT: Mr. Uelmen, specifically the offer of proof by the Defense with regards to these witnesses, these three additional witnesses, is pretty sketchy at this point. I mean, you have said in generality, but specifically what is it that they are going to say?

MR. UELMEN: Well, if your Honor wants a more detailed outline of the--of the offer of proof, we can certainly provide that, but essentially what they are going to say is that at approximately the same time that the Kathleen Bell--

THE COURT: I don't want approximately. I want specifically what do they say that Detective Fuhrman said?

MR. UELMEN: That he frequently referred to black people as Niggers, that he expressed great racial animosity toward black people, and you know, I can--if you want, we can offer quotations, but at this point that is all I'm prepared to indicate. There is no question but that these witnesses will contradict his testimony that he did not use that racial epithet in the past ten years and that testimony was quite calculated. Detective Fuhrman attempted to present himself to this jury as a choirboy and he knew what he was doing. He knew what he was saying when he said this and he set it up. I mean, he dug the hole, so there is no question but that these witnesses will directly contradict that testimony and show that Detective Fuhrman's testimony in that material respect was false and on that basis the jury can reject his entire testimony.

THE COURT: All right. Thank you, counsel. Any brief response?

MS. LEWIS: Yes. Mr. Uelmen has just confirmed what I indicated to the Court and that is that these witness' testimony relates to remote in time incidents, if there is any truth to the incident whatsoever. He indicated Carol Hannack in 1987. I did not hear an offer of proof with regard to Natalie Singer. Maybe I just didn't hear it, but I believe that she is also the same time as Carol Hannack in 1987 because my information is that she was Carol Hannack's roommate and may have been present on one or more occasions. So that they are remote in time and that certainly decreases their probative value. And the fact that Mr. Uelmen is unable to say with any greater specificity what those witness would say is also demonstrative of how little their offer of proof amounts to with regard to those witnesses. In addition, I want to remind the Court that I did submit in camera ex parte under 1054.7 of the penal code some information with regard to Roderick Hodge. Defense counsel has indicated to the arrest they are talking about was in January of 1987 and I would ask the Court to consider that information which is impeachment and not discoverable to the Defense in conjunction with the probative value of Mr. Hodge's testimony because it seems to demonstrate that he is clearly not telling the truth in terms of the offer of proof given the Defense. Mr. Uelmen points to the jury instruction that talks about where a witness is false in a material part of his testimony and with all due respect to people of color everywhere, I submit that whether or not he used the "N" word at some point in the remote past is not a material part of his testimony. Whether he discovered the glove at Rockingham is material. Whether he saw blood inside the Bronco is material. But on this collateral impeachment issue that is not what the law considers material testimony. It doesn't surprise me, your Honor, that the Defense is electing to not call Maximo Cordoba considering the--his own self-impeaching testimony to having talked about remembering these so-called statements that he remembered having dreamt about them the night before. At any rate, your Honor, I do go back to my initial point and that is that the Court has allowed--and we are not asking the Court to reconsider. We are not coming back here whining about Kathleen Bell or Andrea Terry. The Court has already allowed and ruled that they may testify and they are witnesses that do go to extrinsive collateral impeachment, extrinsive evidence of collateral impeachment of Detective Fuhrman. That is more, I believe, with all respect, your Honor, that the Defense should be allowed to do in this case. The Court has generally allowed them to do that and that is more than enough. We don't need to get sidetracked into a miniature sideshow and miniature trial on the credibility of Detective Fuhrman in terms of whether or not he ever used the "N" word. That is prejudicial, it is inflammatory and it is unduly prejudicial to the Prosecution's--excuse me--Prosecution's case, so I think the develops should be precluded. I would ask the Court, and that is what the motion is, for the Court to preclude these additional--parade of additional witnesses to go to this one limited narrow issue for which they already have two witnesses to testify.

THE COURT: All right. Thank you, counsel. Counsel, I think that the presentation of this particular issue at this particular time is premature for this reason: The Court had ruled that the testimony from Kathleen Bell and from Andrea Terry was admissible both for the purpose of demonstrating racial animus and the proclivity to combine that characteristic with the willingness to manufacture probable cause. I found that specifically relevant to the facts and circumstances of this case. After I see how that evidence is presented, and if there is any need for any additional information on that particular issue, then I will reconsider it. At this time, however, I think the presentation in the offer of proof is premature. It does strike me immediately as being cumulative, but I think I can only make that determination after I have seen Kathleen Bell and Andrea Terry testify.

MS. LEWIS: Thank you, your Honor.

THE COURT: So I will take this matter under submission until I hear the testimony of those two witnesses. And I take it that Mr. Cordoba is off the witness list at this time?

MR. COCHRAN: He is not on our short list. We have not given his name, your Honor, and I don't intend at this point to call him.

THE COURT: All right. Next matter.

MR. GOLDBERG: Good morning, your Honor. We next have the matters relating to Michelle Kestler's testimony and also the news leak. I don't know whether the Court wants to handle those as two separate distinct issues. They do relate in a way.

THE COURT: I see one precedes the other. I think what we determine from the news leak issue then determines the broadness of the inquiry of Michelle Kestler. In our informal discussions yesterday at side bar at the conclusion of the day and in discussing the matter with counsel, Michelle Kestler, as the then acting head of the laboratory, now the head of the laboratory can testify to several things that are relevant to this case: The procedures in the lab, who is responsible for what, how their documents are kept. She also conducted the inventory of the evidence that was conducted during the preliminary hearing and she did in fact examine the socks during that inventory, and I think the Defense wants to point out that she saw no readily apparent blood on the socks, so I mean I can see that there are normal reasons why her testimony would be relevant in this case. The other issue, though, the information about news leaks, broadens that inquiry significantly, so I think we need to explore that avenue first. And Mr. Goldberg, do you concede that she is subject to calling--being called as a witness as to the standard issues?

MR. GOLDBERG: Well, the phrase "Standard issues" is fairly all encompassing, and I believe that what the Defense really wants to do or might want to do as a fall back position is call it for the standard issues and then impeach her, and I don't think that is proper and I would like to address that at some more length when we actually get to the question of Michelle Kestler's testimony, but perhaps as the Court is suggesting, we could address the issue of the news leaks first.

THE COURT: I think the news leaks is really what determines the scope of what we are going to do.

MR. GOLDBERG: Thank you. I would like to start then, your Honor, by discussing the lack of relevancy of the news leak issue. We did file a supplemental points and authorities on this. I don't know whether the Court had an opportunity to read that. That was filed at 4:30.

THE COURT: Yes, I have got it.

MR. GOLDBERG: And after talking about the issue of relevancy, which seems like it is a threshold issue obviously, if the Court were to get past that, and we are not suggesting the Court ever will, then there is an issue as to the mechanics of how you would go about proving this through admissible evidence. And we have suggested in our points and authorities that that can't be done because there is no legally admissible evidence to prove what it is that the Defense seeks to prove here. So starting out with the issue of relevancy, we first point out, as we did in our points and authorities, that "Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact," and that was a quote that came from the Court of People versus Babbit. We suggest that this is a classic case that what it is that the Defense is offering is not evidence but merely a speculative inference that they will be asking the jury to draw from the question of the news leak. Now, in order to get to this speculative inference, that is, that the socks--the evidence on the socks were planted, from the news leak, there is a chain of illogic that the Defense must go through, and I try to break it down into three components that would logically be involved in that chain. The first chain is that the Defense would logically have to show or prove, either directly or circumstantially, that there was in fact a news leak stating DNA results, and the reason why we say this first part of the chain of logic has not been established or cannot be established is that what we have is a situation where on September the 18th, as the Court will recall, Gregory Matheson did a PGM subtype test on the socks and found that the PGM subtype was consistent with the victim, Nicole Brown. As the Court also knows, very often the serologists refer to these tests involving blood proteins as genetic markers. So we have a situation where there was a test that was being done for genetic markers that found blood that was consistent with the victim's on the 18th. The so-called leak was on the 21st. So we don't know, for example, your Honor, whether what we have is a situation where the news media received information and misinterpreted that information and reported this genetic marker test as being a DNA type test. We don't know specifically what, if anything, was said.

And just to give a little bit of an illustration on that, your Honor, there was an incident quite recently, I don't know whether the Court is familiar with it, where some of the detectives in this case were talking and joking out on the courthouse steps with some of the T-shirt vendors, as they frequently do, and one of the newspaper reporters or television reporters, I won't name the agency, asked who these people were and what the detectives felt was an obviously joking manner, said that these were four surprise Prosecution witnesses that we were going to put on at the tail end of our case. The news reporter promptly scurried off and this was shortly thereafter reported in the media, that we had these four surprise witnesses, and reporters were scurrying all over the building trying to find out who they were. This was a situation where on its face anyone should have known that that is not a reasonable possibility that we have discovery laws, we have to disclose people. You don't suddenly just march four people into court and put on surprise witnesses. Clearly something that any reasonable person would have seen as being an offhanded comment, a joke.

We have seen instances like this, over and over and over again wherein the news media has completely mischaracterized or outright misstated what happened in Court or happened outside of Court, so I do not believe that there is any reason to conclude that they did not do so in this particular case. Also, as the Court ruled at the time that this came up back in September, and these were your Honor's words: "Let's not even dignify it as a news leak. It is a fabrication," your Honor also found the conduct of the news media outrageous and irresponsible. So how are we supposed to infer, based upon the rulings that the Court has already made--

THE COURT: That comment was made in the context of pre-jury selection and at a time where obviously the Court has to be concerned with the Defendant's right to select a jury and have a fair trial.

MR. GOLDBERG: And your Honor I think also commented at that same exact time that this also might prejudice the People's each right to a fair trial to the extent that it was releasing information that might not necessarily prove to be correct. But the point is, your Honor, how are we supposed to conclude, in an environment where all of us agree, the Court, the Prosecution, the Defense, that stories have been repeatedly put out over the airwaves and in the print media that are incorrect and even irresponsible at times, how are we supposed to trust at face value this story as having accurately stated what was supposedly heard from this source, if indeed there was a source? And this is particularly a problem where we won't be able to cross-examine the person from the news media as to who the source was, what specifically they said, because there is a privilege that attaches, and we can't possibly therefore ever explore or undermine this kind of testimony. I don't even know how it would be presented, in light of that privilege. The next speculative inference in this chain of illogic, your Honor--

THE COURT: All right. Well, let me ask you this, though: Don't we have to then first determine, by summoning in the person who originated this report in the commercial news media and demand from that person production of the source of that information? Don't we have to do that first? And perhaps in this situation that person will agree to divulge the source, and if not, we will have to conduct a contempt hearing?

MR. GOLDBERG: Well, there is also a privilege, as the Court is aware, that applies to protect unpublished information as well as sources, and we've already been told, I believe, it has already been represented to this Court, that that privilege would be invoked here, which is another issue that we also addressed in the brief, your Honor, but I do agree with the underlying premise of the Court's question, which is that before this information could be put before the jury we would have to have some evidence in an admissible form that the proponent of the evidence, the Defense, could put forward to indicate that there was a source for this information and specifically what the source said. But I go even one step further than the Court has just suggested, and that is that in addition to that, they would also have to indicate that that source was an individual from SID, in order to make the evidence probative on the issue of evidence planting. And if all they are going to say is that we have a source that part of the relevancy inquiry is not addressed, because the source could have been, if we are looking at all of the potential candidates for suspicion, SID, it also could have been the police, it also conceivably could have been the Department of Justice, it could have been the D.A.'s office or it could have been the Defense. All of those are possibilities and there really isn't any evidence that points to any one of those five candidates more than the other, if all we have is information that there was a source. The Defense said in their moving papers, well, the source said or the news media said this was a source that was familiar with the investigation, but that does not exclude any one of those five candidates that I just mentioned. All of those five candidates would fall within the rubric of people who are familiar with the investigation, or to add a sixth candidate on, your Honor, it could be an eavesdrop person or interloper who intercepted information from any one of those five sources, so it also could have been an unintentional disclosure. The third problem in this chain of logic that I have been addressing, your Honor, on the issue of relevancy, is that even if we could assume that there was a leak, and even if we could, in addition to that, assume that the leak came from SID, is that leak, that assumed leak, probative on the issue of evidence planting, the issue that it is being offered to prove? And I suggest that it is not very clearly. I would point out, your Honor, that if we knew that there was evidence on the socks, which we did on August the 4th, significantly before Greg Matheson's PGM subtype and before the news leak, we knew that through the presumptive testing that was performed on that date, there are seven permutations of whose blood could be on the sock. It could be the blood of Nicole Brown, Nicole Brown and the Defendant, Nicole Brown and Ronald Goldman, Nicole Brown, Ronald Goldman and the Defendant, the Defendant, Ronald Goldman or the Defendant and Ronald Goldman. Those are the only seven possibilities. So simply by guessing, once we know that there is blood on the socks, if we simply guess it is Nicole Brown Simpson's blood, we have four permutations that include that as one of the possibility or a 57 percent chance of being right.

THE COURT: Refresh my recollection as to what the news report said back in September.

MR. GOLDBERG: The news report said that blood was found on the sock and that it was reported to be that of Nicole Brown.

THE COURT: By DNA type?

MR. SHAPIRO: That is not true.

MR. GOLDBERG: By DNA testing. Well, I think one report was that it was the victim's and I believe there was a subsequent report saying it was Nicole Brown, as I recall. I just listened to it the other night.

MR. SHAPIRO: There were two reports.

MR. GOLDBERG: There were two reports, one on the 21st and one on the 22nd.

THE COURT: One on the 21st when the claim was made and one on the 22nd when it was reaffirmed.

MR. SHAPIRO: That's right.

MR. GOLDBERG: Well, they also said that--I will get to that. They said that it was PGM--excuse me. They said that it was RFLP and PCR testing, but the point is, your Honor, is that just by guesswork, if the source said it is Nicole Brown's blood, they have a 57 percent chance of being correct.

THE COURT: I don't recollect--I don't recollect that the 21st or the 22nd that Nicole Brown Simpson's name came up specifically.

MR. GOLDBERG: I thought they had said that, but if they didn't say it and they said that it was the victim's blood just generically, then there are six out of seven possible--then they have a six out of seven chance of being right.

THE COURT: Do we have that videotape available?

MR. GOLDBERG: Yes, I have it upstairs.

MR. UELMEN: We have it here.

MR. COCHRAN: We have it here.

MR. GOLDBERG: But the point is, your Honor, is if they simply said the victim's blood, which is--I think is what they said on the 21st, then I think there is a six out of seven chance of being right and probably greater because it would be a reasonable inference that because there was a lot of victim's--

THE COURT: Let me look at it again, because whether they have specifics as to whose blood is there, that is an important issue.

MR. GOLDBERG: Yeah, but I would submit, your Honor, that if they had said it is Nicole--

THE COURT: I understand the permutations. I understand what the possibilities are.

MR. GOLDBERG: Okay. But if they said it is Nicole Brown Simpson's blood and the Defendant's blood, then at least the argument that this was someone with inside information would be slightly stronger--

THE COURT: Uh-huh.

MR. GOLDBERG: --than if they simply said it was the victim's blood.

THE COURT: Before we get too far away from this point, Mr. Douglas, do you have that available?

MR. DOUGLAS: I do, your Honor.

MR. GOLDBERG: While we are waiting, does the Court want me to continue or does the Court want me to--

THE COURT: Let me just satisfy my curiosity and refresh my recollection as to what this said, because I think that has--the specifics of what is said is important for the rest of the inquiry, I think.

(Brief pause.)

(At 9:39 A.M. a videotape, was played.)

THE COURT: Thank you.

MR. GOLDBERG: Thank you for rerunning that tape. I also see on the tape, though, and I should have picked up on this earlier, that they said that the socks were sent to cellmark and in fact they were sent to the Department of Justice, so that is another inaccuracy in the news report, which again leads us away from the conclusion that the person had inside information. Obviously they said that it had already been sent for DNA testing, and that wasn't true, because it wasn't sent out until the 26th of September, which was a number of days after the leak, so that is another misstatement. And then in the retraction story, this was after Miss Clark was in court and said to the Court, no, the items have--excuse me. She said, no, the socks have not yet been sent out for DNA testing. Following that statement in court the news media reported, well, that is true, the socks haven't been sent out; however, a cutting from a sock was sent out, and that is also incorrect because we had neither sent out cuttings from the sock nor had we sent out the sock itself as of that date, so all around the report that was issued by the news media is incorrect. The only thing that they state that can be characterized as being correct is that Nicole Brown's blood was on the sock; however, that is only a partial, partially correct statement, because the Defendant's blood was on the socks as well. So there is nothing about the report itself which leads us to the conclusion that it came from someone with inside knowledge or someone other than a crackpot and there is every indication in the report itself that it did not because of the number of obvious inaccuracies of the report. Now, getting to this third relevancy issue, and that is I think probably the key one here, is even if we could get over the other two relevancy hurdles, why would a leak be relevant on the issue of evidence planting? The Defense has simply assumed that it would be relevant without articulating why it would be, and in trying to articulate that a little bit, I would like the Court to envision two scenarios:

Under scenario no. 1, we'll call this evidence planting scenario no. 1, what happens is the socks are--the socks themselves are planted at the Defendant's home, but apparently, according to this scenario, when the socks were seen on the 24th of June and the 29th of June, there is no blood on them. This is the inference that they want the jury to believe; therefore, someone planted blank socks, so under this evidence planting scenario maybe what happened was the person that planted the blank sock was listening to the news media and heard this story about DNA testing and thought to themselves, oh, my heavens, we planted the socks, but we forgot to plant blood on them, and then as a result of having been reminded by the news story that they had forgotten to plant blood on the socks, got dressed up in their Ninja style evidence planting outfits and then put the blood on those socks.

THE COURT: All right. Well, let's--if you argue that the Defense argument is speculative, let's get back onto terra firma.

MR. GOLDBERG: It is not just speculative, your Honor, but I don't think that the Defense can logically assert that theory.

THE COURT: Let's agree nobody likes that theory.

MR. GOLDBERG: Okay. So let's try theory no. 2 then, evidence planting theory no. 2, and that is that--and it seems to be inconsistent, by the way, with evidence theory no. 1, which I think the Defense in part has pursued, because they have suggested that blank socks were in effect planted. But let's take evidence theory no. 2 and let's suggest that what happened was the evidence was planted prior to the time that the news story came out, then what happened under Defense theory no. 2 is that the person that planted the evidence on the socks for some reason then immediately called the news media and said, guess what, I just planted some evidence on the socks, or guess what, there is evidence on the socks and it is going to be Nicole Brown's blood. And this seems to be particularly unreasonable to conclude that the very individual that participated in planting the evidence then called the news media to tell them about that, so under either scenario that the Defense wants to pursue, whether the evidence was planted after the leak or before the leak, the leak the does not logically help to establish that evidence was in fact planted, because the person that was responsible under theory no. 2 for planting the evidence would be the least likely individual to want to do anything to make that fact known and perhaps be caught in the process. So I have suggested that--that none of these prerequisites can be established. You can't show that it was a leak of DNA test results that in fact occurred. You can't show that the person came from SID, and even if you could show all those things, you still can't logically connect up this so-called leak to the question of evidence planting under any scenario that I can see the Defense arguing before this jury. I would like to get to the other more technical issues but that would assume that we got over the threshold issue of relevance. I don't know whether the Court perhaps would like to divide this up into pieces and decide the issue of relevance first because then we have some issues involving privilege, hearsay, conclusions and opinion evidence, a variety of technical legal issues that would go to how the Defense would try to present this evidence if the Court ruled that it was relevant, but I don't know whether the Court would choose to in effect break up the arguments and decide the issue of relevancy first.

THE COURT: Well, let's look at the spectrum of the evidence that we have here before us. We have--with regard to the sock we have the testimony of--or I recollect it was Detective Luper--that the socks were recovered at his direction because, quote, "They were out of place." That is an explanation I have never heard of before. We have the offer regarding Mr. MacDonell's testimony that blood in the interior of the sock a is blood that was not powdery, but in a form such that it had to have been--it was not transferred into that fiber by powder means, it was a liquid when it got there. We then have the testimony of Dr. Rieders that in his opinion the testing done by Roger Martz with regards to the sock is in, his opinion, indicative of the presence of EDTA. Putting those three factors together with the premature claim that RFLP testing shows that Nicole Brown Simpson's blood is on the sock, I mean, that is a pretty plausible offer of proof as far as going further, wouldn't you say?

MR. GOLDBERG: No.

THE COURT: You don't think so?

MR. GOLDBERG: Well, as to the issue of Detective Luper, your Honor, Detective Luper's--testimony as to him directing people to collect the socks, the Court never heard before, of course. It was never relevant before. Of course your Honor knows that the Prosecution on each one of the factors that the Court has raised has counter argument.

THE COURT: I understand that.

MR. GOLDBERG: And that is not directly relevant to the Court's question. What is relevant is the issue of is the Defense allowed to prove, if they can, that the socks are planted. Certainly--

THE COURT: All right. Here is the thing, though. The scenario that I just posed, the chain of facts or proffered evidence that I have discussed, the next link in this is that there is somebody in the police department who knew about this and told somebody in the news media.

MR. GOLDBERG: Who knew about what?

THE COURT: About the fact that there is blood on the socks in a premature fashion.

MR. GOLDBERG: That is scenario no. 2, what I have talked about as scenario no. 2.

THE COURT: All right.

MR. GOLDBERG: That a person either planted the evidence him or herself or had direct knowledge of this and participated in it.

THE COURT: Uh-huh.

MR. GOLDBERG: And then decided to disclose it to the news media.

THE COURT: But don't we from this point then have to make an inquiry of the news source first as to who the source was before we determine how much further down this line we go?

MR. GOLDBERG: Well, I would agree, your Honor, that if the news people said I received information from Mrs. Smith who works for SID, that this evidence was on the socks, a couple of the relevancy hurdles that I articulated would be overcome because they we do have in fact evidence of a leak rather than just speculation and conjecture and so on that we have to infer what was said. We do have--

THE COURT: Mr. Goldberg, in making your argument you should understand that we are not about to conduct this trial by TV news reports.

MR. GOLDBERG: I would hope so.

THE COURT: But we do have to make inquiry, based upon what we have seen here so far, of the news media for what their source was.

MR. GOLDBERG: That is a different--a different issue, your Honor, and as I was about to say--

THE COURT: Then depending on that, all of this scenario discussion is really premature before we find out what we get from that other source, what if anything.

MR. GOLDBERG: I believe that it has been represented, though, to the Court and to both sides--I think we got a letter, I don't know whether it was served on the Court--

THE COURT: Yes, it was.

MR. GOLDBERG: --from the news organization saying that they would--that they obviously didn't want the witness to testify even to authenticate the tape and declaring that they would invoke their privilege.

THE COURT: But you are familiar with several cases throughout the country where reporters, despite having identical reporter shield laws, have been forced to divulge sources or face the contempt power of the Court, and since it appears this Court--this trial may be going on for several months, that could be a significant sanction.

MR. GOLDBERG: Well, your Honor, I am not addressing the issue and was not arguing the issue of whether or not the Court wants to hold such a hearing and then attempt to get this reporter to divulge their source. That is a separate issue. And obviously if the answer--

THE COURT: Well, the point I'm making is that before we get to the cross-examination of Michelle Kestler as to news reports, there has to be a little bit more there than what we have now is the point I'm making.

MR. GOLDBERG: I would degree and I think that the burden is on the proponent of the evidence to get that little bit more in here, however they want to do it.

THE COURT: All right. Then procedurally my understanding is that the news reporter in question has been subpoenaed?

MR. COCHRAN: Yes, your Honor. I believe she has. I just asked Mr. Douglas to step out. Miss Anne Egerton said they would accept service and I assume that was yesterday and in a moment I will know for sure. I will ask for them to call.

THE COURT: All right. Then I would say further discussions about scenarios at this point is really premature before we get that other piece of information.

MR. GOLDBERG: Okay.

THE COURT: Mr. Uelmen. Let me cut to the chase. Do you agree procedurally at this point we perhaps should have a 402 here calling the reporter and asking them if they are going to divulge their source, and if not, proceed accordingly.

MR. UELMEN: Your Honor, I think we can make a sufficient showing that the course of this news leak was the SID laboratory, without the divulgence of the source by the news reporter.

THE COURT: Okay. How do we do that?

MR. UELMEN: We do it simply by asking Miss Savage to come in and authenticate the report that was given and to confirm the information which has already been disclosed to this court in the form of a letter addressed to your Honor from Carol Black, the president and general manager of KNBC TV at that time Miss Black represented to this court that the news story was based upon, and i am quoting: "Individuals knowledgeable about the investigation had told KNBC news personnel that socks with blood on them had been part of the material seized by authorities in Mr. Simpson's house, that DNA testing had been requested to determine whether the blood on the socks matched the blood of one of the victims, and that communications from the testing laboratory had reported a positive correlation." Now, that is their representation of the sources.

THE COURT: But is the source knowledgeable?

MR. UELMEN: Yes.

THE COURT: As Mr. Goldberg points out, that could include Mrs. Robertson.

MR. UELMEN: Well, I will get to that in a moment.

THE COURT: But she is not a credible source, but I mean, there is a whole panoply of people who claim to be knowledgeable.

MR. UELMEN: Well, there is another element to this because they go on to indicate that this same source had previously provided reliable information. They come back and they reconfirm and they say: "Our sources reconfirmed to KNBC news their original statements that the tests had occurred and that the communications had been received, thus KNBC's news reports were based on the statements of multiple sources with different avenues of information who KNBC knew had knowledge of the investigation and who had on previous occasions provided accurate information to KNBC." Now, I assume that Tracie Savage would also testify that KNBC does not base news reports simply upon lucky guesses or upon crackpots, so we are limiting at least somewhat the available pool of sources from whom this information might have emanated. Now, through the testimony of Michelle Kestler we believe we can establish a chronology that points a very, very reasonable inference of a finger of more than suspicion at the SID laboratory itself, because you have to put this in the context of a chain of events, and that chain of events starts much earlier than September 21st. It starts on September 12th when Michelle Kestler, as director of the SID laboratory, receives a fax from cellmark giving DNA results. That faxed report is not even transmitted to the Prosecutor, Marcia Clark, until four days later on September 16th, but on September 12th, on the same day that the fax is received by Michelle Kestler, there are news reports, including I believe a KNBC news report, reporting the results of those DNA tests. All right. Then we are told, on September 18th, a PGM subtype of the sock is done and it turns up results consistent with Nicole Brown Simpson. Now, the question is who knew of those results? That test was done by Greg Matheson within the SID laboratory. We would like to ask Michelle Kestler, well, who fund out about those PGM results? To whom were those results disseminated? Apparently the decision was made on September 21st to send the socks out for DNA testing. We would like to know who made that decision and to whom that decision was communicated, because on September 21st, coincidentally, that is the date that the news leak announces DNA results on the sock.

THE COURT: All right. Do we have a copy of the fax of September the 12th?

MR. UELMEN: Yes, we do. I believe that was appended to an earlier motion that we filed with the Court.

THE COURT: I didn't see it in this round of motions.

MR. UELMEN: I am sure we can lay our hands on another copy and make a copy of that. We believe that Miss Kestler would also testify as to the method by which evidence and information of this--of this nature was handled within the SID laboratory, that she would testify that this was a sensitive investigation and that steps were taken so that only those who had a need to know would be informed of information of this nature, and we would like to ascertain just who had a need to know under these circumstances. I believe we can limit the pool of available sources to a very small group of people from whom this information could possibly have emanated, who would have known--

THE COURT: The problem you have, though, is that this information was just flat out wrong.

MR. UELMEN: Well, the information was wrong only in a couple of minor details, including the detail that the tests had already been done and that the socks had been sent to a particular laboratory, but the--

THE COURT: But in all other respects it was correct?

MR. UELMEN: Well, it was correct in terms of the discovery, alleged discovery of blood on the socks. It was correct in the--

THE COURT: But that was known in August.

MR. UELMEN: Well, it was correct in the attempt to link that blood to Nicole Brown which would have been only known to those who had access to the PGM subtype results that were achieved on September 18th.

THE COURT: Well, let me ask you this: Do you want to pursue dragging Tracie Savage in here and asking her to divulge or not? Do you want to pursue this other indirect line?

MR. UELMEN: Yes, we do want to pursue bringing Tracie Savage in, but we believe it is not even going to be necessary to require her to divulge the identity of the source. All she has to do is confirm the information that has already been disclosed.

THE COURT: Do you think I'm going to allow playing that news broadcast to the jury as evidence in this case?

MR. UELMEN: Yes, I think you are and you should.

THE COURT: Under what plausible grounds could I do that?

MR. UELMEN: Well, it is not being offered certainly for the truth of what is asserted in that news broadcast, so it is not hearsay. It is being offered to show the--the link in the chain with respect to the planting of evidence in this case, your Honor. We have to put this in the context, as your Honor has already noted, of other evidence. When I was a Prosecutor I used to love the metaphor of a brick in the wall and you can't keep out evidence because it is only a brick and it is not a wall, that all of the inferences and circumstances go together in a circumstantial case to build a wall. We are now engaged, your Honor, in removing bricks from the wall. We are engaged in the process of creating a reasonable doubt and that is--

THE COURT: Nice analogy. Tell me what your legal basis is for me allowing news broadcasts that are fabrications as evidence.

MR. UELMEN: Because those fabrications emanated from someone in the SID laboratory which is where we would contend evidence fabrication took place. We have--

THE COURT: Do you think there are a lot of people who have an interest in this case who have a personal interest in seeming knowledgeable and cultivating media who go out and lie to the news media about the case? Do you think that is a phenomena that might have occurred?

MR. UELMEN: Well, Mr. Goldberg suggests that perhaps there are eavesdroppers and interlopers. Now, if eavesdroppers and interlopers had access to the evidence in this case, that is something we would like to know about, because the existence of possible eavesdroppers or interlopers may itself create some doubts about the integrity of the evidence and the question of whether--whether evidence was planted. But the fact remains, your Honor, that we believe we can establish, within the SID laboratory, within the very small pool of people who had access to this information, who could reasonably have been the source of this leak, that the leak itself creates an inference that evidence was being fabricated, that somebody would have enough confidence to tell the news that there will be positive DNA results on a sock indicates a high degree of confidence that that is what the results will show. And that confidence could have come from involvement in actually putting that evidence there and knowing in advance that that is precisely the result they are going to get, because they even assured in advance that that would be the result, and we believe that is not a speculative or unreasonable inference in light of all of the other inferences that we have with respect to the sock. We have the discrepancy in when and where the sock was found, and that evidence isn't relevant, just to create some scenario as Mr. Goldberg suggested that somebody planted a blank sock.

THE COURT: No, I dismissed that as completely--

MR. UELMEN: What that evidence does is suggest to the jury that this sock, as well as other evidence, was not particularly handled with great care, that we cannot trust the evidence and the records of the criminalists who say they collected that sock when we have proven that those records are wrong, that they have the wrong time with respect to when those socks were collected. Then we have discrepancies in terms of when blood was discovered on the socks.

THE COURT: Well, counsel, let's get back to my question. What legal statutory case law, other examples that any court anywhere in this country has ever allowed a fabricated news report as evidence in a case of?

MR. UELMEN: I'm sure we can come up with cases where news reports have been admitted for a non-hearsay purpose and that is--

THE COURT: Give me one.

MR. UELMEN: I will get right to work on that, your Honor. What we are offering this news report to establish is that the SID laboratory was the only logical source of that information, that the pool of individuals within that laboratory--

THE COURT: I understand the argument--

MR. UELMEN: --were persons who had access to the evidence and could have participated in the planting of evidence, so we are simply adding or subtracting another brick from the wall that creates that hole of reasonable doubt, that gives this jury a reasonable doubt as to the integrity of the evidence that is being presented in this case. And the news leak is--is crucial to establishing that additional inference. I mean, you can't, in terms of our obligation of creating reasonable doubt, draw circles around what--what bricks we can displace from the wall that the Prosecution is attempting to build, and this is a very important brick, the brick that suggests that the SID laboratory maintained tight security over the evidence, that the evidence was not available to others, that information about the case was--was tightly controlled. And here we are rebutting that inference, I think with very persuasive evidence, that there were leaks from that laboratory and those leaks create doubts about the integrity of this evidence.

THE COURT: All right. So how do you want to proceed at this point?

MR. UELMEN: We would like to proceed by calling Tracy Savage, by asking her to authenticate the news tape, by asking her whether KNBC bases news reports of this nature on lucky guesses or crackpots and to confirm the information that was disclosed to this court in the letter of Carol Black, that this information came from a knowledgeable source about the investigation, and that that source had given prior information to KNBC which turned out to be reliable. We would then proceed to call Michelle Kestler to inquire as to who were the persons within the laboratory who had any information about DNA results, who had access to the faxed DNA results on September 12th, who had access to the PGM subtype test done on September 18th, who had knowledge of the decision to send the sock out for DNA testing on September 21st. We believe that will be a very limited pool of possible sources, and that is all we need.

THE COURT: Mr. Cochran, what is the status of your subpoena for Miss Savage?

MR. COCHRAN: Mr. Douglas advises me that she was served I believe Tuesday of this week, Tuesday of this week, through counsel for NBC, and if the Court would like, I can make some phone calls, if you will give us a schedule. They have indicated she is usually in and around this building, but apparently she is now under subpoena.

THE COURT: All right. When do you want to proceed? I think there is a very necessary step that is missing here.

MR. COCHRAN: You've heard Mr. Uelmen's arguments. You are the Judge. We will--we would like to proceed as soon as possible obviously on this your Honor, given the schedule. We have Professor MacDonell, but we will work around this, and we have a short day tomorrow, so you let us know what is appropriate and we will work around it.

THE COURT: My recollection is we have to conclude Dr. Rieders tomorrow morning.

MR. COCHRAN: We do.

THE COURT: You do want to present Mr. MacDonell, correct?

MR. COCHRAN: That's correct.

THE COURT: And my recollection is he is from out of town as well, correct?

MR. COCHRAN: Yes, they are both from out of town.

THE COURT: All right. Let's go with MacDonell. We will take our recess, we will come back at 10:30, we will start with Mr. MacDonell. Counsel, why don't you make arrangements, I take it--is Kestler your next witness after MacDonell and Rieders?

MR. COCHRAN: I would think so; Savage, Kestler, yes, your Honor.

THE COURT: All right. Then let's go Monday with this.

MR. COCHRAN: Monday morning at nine o'clock?

THE COURT: Monday morning at nine o'clock. That will be for the 402 hearing regarding what comes out of Savage.

MR. COCHRAN: That will be fine.

MS. LEWIS: Your Honor, there is one more matter I believe this morning, your Honor, the--I served Mr. Cochran with a subpoena duces tecum. Did the Court have an opportunity to see that? I filed it with the Court yesterday so that you could take a look.

THE COURT: Yes.

MS. LEWIS: I--as the interview that was conducted by the D.A., as that little typewritten statement says, the witness Gretchen Stockdale confirms the truth of what was reported in the--the New York Daily News article, on May 13th indicating that Mr. Simpson had called Miss Stockdale saying that he was finally at a place in his life where he is totally unattached with everybody and so forth, so that is information that the Prosecution, that tape, which Miss Stockdale made of that phone call, conversation is evidence which the Prosecution has a right to. This witness said that she had only one copy and she gave that sole copy to Mr. Pavelic, the Defense investigator, so we are not trying to use the subpoena process for discovery. We are trying to get it--get evidence which we already knew from an independent source exists and the only copy of which was given to the Defense.

MR. UELMEN: Your Honor, our position on this is completely consistent with the position asserted by the Prosecution in response to Defense subpoenas, and that is that the reciprocal discovery law itself specifically provides that it is to be the exclusive means of obtaining discovery of evidence, and the appropriate way to proceed in this case is by a discovery request. Our position of course would be that this is not evidence that we are required to disclose, that it is rebuttal evidence in case this witness is called. It is not evidence of the crime within the meaning of the--of the Meredith case that the Defense has any obligation to turn over, and we do not intend to call Gretchen Stockdale as a witness, so there was no obligation under the discovery law to turn this over.

MS. LEWIS: Your Honor, this is--this is physical evidence that the Prosecution has a right to. They can't shield evidence by having a witness give to it them and hide it from the Prosecution. This--the witness did voluntarily interview with us and she indicated this is where this particular cassette tape went. We are not in the situation of discovery at all really with regard to this cassette tape.

THE COURT: All right. So I think what you need to do is file a motion to compel the production of this tape. I agree with Mr. Uelmen, that the subpoena duces tecum upon Defense counsel is not a mechanism authorized by 1054. All right. All right. Let's take a recess for fifteen and we will start with Mr. MacDonell.

MR. NEUFELD: Your Honor, one other--

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Your Honor, I'm informed that among the items of evidence that we would like to put on today is the videotape and the grand jury testimony of Thano Peratis. And I understand that the Prosecution has taken the position that they want to offer some additional statements pursuant to 1202. Our position, and I think your Honor can rule on it at this time, is that that is appropriate for their rebuttal case, but the admission of this videotape and the grand jury testimony is former testimony, does not depend upon the availability or presentation of any impeaching evidence that they would like to present that that can be done in the course of their rebuttal case. So we were not allowed to interrupt the presentation of their case in chief by bringing in witnesses that we assert would impeach the credibility of any of their witnesses. We would like to proceed with our case with the presentation of this evidence, and if they want to offer something to rebut or impeach it, they can do that during their rebuttal case.

THE COURT: All right. Who is going to address that matter for the People?

MR. GOLDBERG: Your Honor, the--first of all, I'm not sure that the People were told--maybe Miss Clark was--that they intended to put on the transcript testimony of Thano Peratis today, so I--

THE COURT: No. We have discussed it as coming after MacDonell.

MR. GOLDBERG: That that was going to be today?

THE COURT: Not necessarily today but following MacDonell.

MR. GOLDBERG: Okay. Then that may not necessarily be today I would assume.

THE COURT: Well, we may not finish MacDonell today at the rate we are going.

MR. GOLDBERG: But at any rate, your Honor, I did not research the specific issue that counsel has addressed as to the appropriate mechanism in terms of order of proof for dealing with the hearsay declaration. What we do know is that we know that the Court has statutory authority to control the order of proof. That we can be positive of. And we also know that if Thano Peratis were to have come into this courtroom, as opposed to having his testimony presented through the transcripts, that Mr. Peratis could be asked about prior inconsistent statements on the witness stand and therefore those statements could be put in front of the jury immediately during the presentation of that particular witness. Obviously we can't do that with the hearsay declarant because we are never going to be able to confront him with the prior inconsistent statements. Nevertheless, we are statutorily entitled to call a witness who can testify to those statements. What I would say to the Court is that given that the Court does have statutory authority to control the manner of proof and because the Court has in effect made a ruling or there has been a finding of unavailability, the Prosecution should be able to present those prior inconsistent statements at the same stage in the trial that we would be able to present them, if he were here live. That is immediately upon the heels of what would be his direct testimony, the reading of the transcript. Now, the other issue that is raised by what Mr. Uelmen just stated to the Court is the question of whether or not the grand jury testimony is admissible. That was not subject to both direct and cross-examination, obviously, so I'm not sure that the grand jury testimony, as opposed to the preliminary hearing, is admissible, per se, although I'm not certain whether the People would have an objection to that. I would like the opportunity to take a second look at that, or perhaps another member of our Prosecution team, to determine tactically whether we want to make that objection.

THE COURT: All right. We will take that up at the conclusion of Mr. MacDonell's testimony then whenever that might be, but be prepared to tell me what your position is regarding the grand jury aspect as soon as you can. Let me just make this one observation, though, about the order of proof. This witness was available to the Prosecution in their case in chief. The testimony by Mr. Peratis could have been presented, his testimony now that his recollection is X, Y and Z as far as how much blood was collected from Mr. Simpson, and then he could have been, during the direct examination, asked about prior testimony, he would have testified about how he was mistaken or whatever the offer might have been. That opportunity was available to the Prosecution. They did not avail themselves of that. Any 1202 evidence, assuming that it is admissible, will be restricted to the Prosecution's case in rebuttal.

MR. UELMEN: Your Honor, we have not at this point received any statements or any offer of proof with respect to 1202, so we are completely in the dark as to whatever it is they are going to offer.

THE COURT: Well--

MR. COCHRAN: It could be rebuttal evidence that they don't have to disclose to you at this point.

MR. UELMEN: Well--

THE COURT: So depending on how you want to play this.

MR. UELMEN: If it is rebuttal evidence, then it should await their rebuttal case.

THE COURT: Probably should. All right.

MR. COCHRAN: One thing, so your Honor is clear on that date, we did say if he ran out of time on agent Martz, we would even call Peratis yesterday, if you recall.

THE COURT: I recollect, but I also wanted to say I wanted to see it one more time before we play it. My recollection is it is eight or nine minutes.

MR. COCHRAN: Do you want to do it?

THE COURT: No. We are going to take a recess for ten minutes.

MR. DARDEN: How long is the recess?

THE COURT: Ten.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. All the parties are again present. The jury is not present.

MR. NEUFELD: Your Honor, I have a couple of applications first, if I may.

THE COURT: All right. Mr. Neufeld, good morning.

MR. NEUFELD: Good morning, your Honor. Just one second. I'm asking Mr. Harris to actually get a couple of boards which are apparently not up here, so I'm going to show him the photographs of the boards.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Good morning, your Honor.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Our next witness is Professor Herbert MacDonell and there are a couple of points I wanted to get out of the way first, your Honor, in the nature of 403 and in limine matters. First of all, I think you may recall I mentioned in front of Miss Clark yesterday that this witness will not be testifying at all to any crime scene reconstruction at Bundy, and I believe therefore that would be beyond the scope of cross-examination and I wanted to have that issue resolved before I called the witness. Because it doesn't go to impeachment and he is not their witness, he is our witness, so that is the first issue. The second issue, your Honor, is that as you know, Professor MacDonell conducted a glove shrinkage experiment, and although that may open the door to the Prosecution conducting his own glove shrinking experiment with the gloves that they have, I don't believe it opens the door to displaying other photographs that they have or purport to have of Mr. Simpson wearing leather gloves in different places. One has nothing to do with the other. This experiment is being--I'm sorry. This experiment is being introduced for a very limited purpose so I would like a ruling on that. And third, your Honor, I would ask for a ruling in advance of me calling this witness as to which cases the Prosecution will be entitled to bring up on cross-examination. I'm not asking for transcripts now. I'm just asking for certain cases, because, umm, Professor MacDonell has been involved as an expert witness on behalf of the Prosecution and on behalf of the Defense in many well-known cases throughout the country, and I want to make sure that if other cases are brought up they are brought up because they are in fact relevant and probative, either directly or for impeachment purposes, and they are not simply brought up to create innuendoes about his involvement in one case as opposed to another case, because of the name of the victim or the name of the Defendant, which would be completely irrelevant in these proceedings. And that is why I'm asking for a ruling in advance of which cases the Prosecution intends to go into.

THE COURT: All right.

MR. NEUFELD: Thank you.

THE COURT: Miss Clark.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: I don't really understand how counsel can require us to state what we intend to use to impeach a witness who has given us no report, who has given us no indication of what he is going to testify to. We are here in the blind, as the Court is well aware. Certain topics have been referred to that he will address this topic or that topic, telling me nothing of what he intends to say about that topic. And in view of the fact that they have determined it is appropriate to keep us in the blind and not tell us what he intends to testify to, I cannot be in a position to accurately inform them of what I intend to impeach. That is what I have to say about the cases that we intend to use. I don't know. If he would tell me what he was going to say, if counsel had been forthright and candid about what he was going to testify to and what his conclusions would be, I might be in some position to help them, but I can't. With respect to the crime scene at Bundy, again, how do we know what he is going to say? Some comparison to the blood drops at Bundy or something present at that crime scene might be relevant impeachment given some conclusions he makes about what he sees at Rockingham. And until we hear that, we don't know. This is what they have bought into by failing to tell us or give us any reports as to his conclusions. How can I know what I'm going to use to impeach or ask to use to impeach? With respect to the glove photographs, I think photographs or any evidence that is relevant to impeach the experiment that they undertook to conduct is I think fair game. They have undertaken an experiment in which they took a brand new pair of gloves that fit Mr. MacDonell very differently than the gloves fit Mr. Simpson when they were first purchased for him by Nicole. And all of the differences that are also accounted for by the fact that new gloves were used in their experiment and old gloves were obviously the ones used in the crime should obviously be fair impeachment, not to mention photographs that may depict the conditions that those gloves were subjected to. Counsel can't have it both ways. You want to come in and use an experiment that is so easily impeached by the dissimilarity of the conditions, then this is what happens. The dissimilarity of the conditions should be brought forth to show the jury that this is worthy of no weight. Can't have it both ways, though, and try to insulate yourself in cross-examination, which is basically what counsel is asking to do. We want to put this evidence in, but you can't impeach us. That is not the way the law works, so that is our response. I think that any relevant impeachment should be allowed, but until we know what he says, we don't know what that is.

THE COURT: All right.

MS. CLARK: May I also address the Court on another matter? And that is, the expert has given us no report on his conclusions concerning that he saw at Rockingham, what he saw in the Bronco, photographs. I think the only notes we even have are the glove drying experiment. That is the only thing that they intend to present from him that we have some kind of written material on and the observations of sock A, so really it sounds to me like the bulk of his testimony is unreported and unnoted in any document. In light of that fact, your Honor, the People have--have no chance to prepare and in order for the People to have the right to a fair trial and to be prepared to adequately cross-examine and confront the witness--I think I'm asking the Court leave under the old laws--there is not even under the new statutory discovery laws which compel counsel to produce discovery--even under the old laws when an expert testified and gave late discovery of a report or no report, the People would be entitled to some time to prepare for cross-examination and not be required to stand up and cross-examine immediately after direct was concluded without having had some adequate opportunity.

THE COURT: Isn't that an issue we need to address after we hear further direct examination to see what the extent is? I mean, who knows? Mr. MacDonell present may evidence that you are completely adequately equipped to address.

MS. CLARK: Well, given the fact that two of the major areas they intend to address have no reports or notes, I can't imagine that being the case, but I get that the Court wants us to wait on this.

THE COURT: Well, you are asking me to make a premature judgment as to what is going to be there. It may be something so simple and logical to deal with that even I could do it.

MS. CLARK: I don't share the Court's--the humbleness of the Court's self-characterization, but we will wait and see.

THE COURT: Let's wait and see.

MS. CLARK: All right.

MR. NEUFELD: Your Honor--

THE COURT: All right. Mr. Neufeld, in answer to your questions, without hearing the testimony, it is hard for me to circumscribe or give you a ruling with regards to the scope of cross-examination. With regards to Bundy, I agree, under normal circumstances, if you don't present any testimony as to any evidence at Bundy, then that is probably not fair game, but if there is a comparison, for example, between blood drops at Rockingham and their appearance, versus the blood drops at Bundy and if there is any difference, that becomes relevant, that might be fair game. With regard to the glove shrinkage, you have asked me to--some concern about pictures of the Defendant wearing gloves. You know, as we pointed out in our discussions about gloves, you know, the experiment was conducted on a new pair of gloves. There are pictures of Mr. Simpson that the Prosecution has alluded to wearing gloves in winter weather which may be one of the factors. You know, snow, moisture may be one of the thing you have to take into consideration as to whether or not gloves are going to shrink over time, I don't know, but before that is broached in cross-examination I'm going to ask Miss Clark as to any cross-examination regarding the Bundy crime scene, any photographs of the Defendant wearing gloves and any transcripts that you might have on other cases that Mr. MacDonell has testified to, I want you to notify the Court and approach so we can ask it before we go any further.

MR. NEUFELD: Your Honor, just two things very briefly.

THE COURT: Yes.

MR. NEUFELD: One is, as you know, there were reports turned over about the bulk of what Professor MacDonell will be testifying to, and I conveyed to the Court and to the Prosecution that that is the reality of what you are going to hear and I assured the Court once it is that. It is that. And for the People to make this assertion that they have no reports and no notes really isn't a fair statement.

THE COURT: Counsel, as I indicated to you, any request for continuance for the request for preparation is a moot issue until after I hear the witness.

MR. NEUFELD: May we have a brief side bar?

THE COURT: For what purpose?

MR. NEUFELD: I would like to bring up one matter with the Court that I would like to do at side bar as soon as possible.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Deputy Magnera, let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: My apologies for having kept you waiting upstairs so long. We had a number of motions to take care of out of your presence. We did conclude most of them. And we will proceed with the next witness. Mr. Neufeld, you may call the Defense next witness.

MR. NEUFELD: The Defense calls Herbert MacDonell.

Herbert MacDonell, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

PROF. MACDONELL: I do so help me God.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

PROF. MACDONELL: My first name is Herbert. The last name is MacDonell, capital m-a-c, capital d-o-n-e-l-l.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Good morning, ladies and gentlemen.

THE JURY: Good morning.

DIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Sir, I guess you already gave your name. Could you please tell the ladies and gentlemen of the jury where you live, sir.

PROF. MACDONELL: I live in upstate New York, in corning, New York by name.

MR. NEUFELD: Could you please tell them what is your occupation.

PROF. MACDONELL: I'm director of the laboratory of forensic science which is an independent laboratory available to both Prosecution and Defense in criminal and civil cases, and I have been involved in cases other than civil and criminal, mainly private.

MR. NEUFELD: Do you also hold any other business titles, sir?

PROF. MACDONELL: Yes. I am president of what is called MacDonell associates, incorporated, a company that manufactures fingerprint equipment that I invented some years ago.

MR. NEUFELD: Do you have a degree from a recognized university or college, sir?

PROF. MACDONELL: Yes. I have a master of science from the University of Rhode Island, a major in analytical chemistry and a minor in physics, and a bachelor of arts degree from Alfred University in upstate New York with a major in chemistry and a minor in mathematics.

MR. NEUFELD: And do you have any other formal education beyond those degrees, sir?

PROF. MACDONELL: Yes. I have taken many courses under the state municipal police training council, such as Pennsylvania and New York, and also I took a ten-month program under the Department of Attorney General of the state of Rhode Island dealing with what was then called criminalistics, and the course involved mainly physical evidence.

MR. NEUFELD: Have you conducted any teaching on a college or university level?

PROF. MACDONELL: Yes. I was professor of chemistry and headed the department in a small midwest college in Milton, Wisconsin, for three years, and other than graduate work, I began teaching at corning community college, a two-year course under the state university of New York from 1960 to 1992, with a five-year sabbatical in there off and on. I also taught at a four-year school in upstate New York, Elmira College, and that was from 1972 to 1983. At that institution I taught many forensic courses, ten specifically.

MR. NEUFELD: So in all you said you started teaching in 1951 when you were the chairman of the department at Milton college?

PROF. MACDONELL: Yes, yes.

MR. NEUFELD: Are you still teaching today, sir?

PROF. MACDONELL: I'm teaching but not with any college or universities. I run institutes, specialized schools that are usually one-week in duration, and conduct many workshops and seminars of 1, 2, 3-day duration, but I am not currently affiliated with any particular college.

MR. NEUFELD: All right. We will come back to that other institute later, sir, but you mention that you began in 1951 as a professor and head of department at Milton college. And you finished--your last professorship was in what year, sir?

PROF. MACDONELL: 1992.

MR. NEUFELD: Okay. So you were teaching on and off for approximately how many years?

PROF. MACDONELL: 35 years, depending on whether you deduct the sabbaticals or not.

MR. NEUFELD: All right. Even though you are not technically teaching right now, having taught for forty years as a professor, do the people still address you as Professor.

MS. CLARK: Objection to forty years.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Given the duration of time that you actually were a professor, since 1951, as a result of that do people refer to you as Professor?

PROF. MACDONELL: Yes, quite frequently they do. I'm referred to as doctor many times. I do not have a doctor's degree, but I received this title quite often and it is embarrassing to either correct the person or ignore it. It is a difficult choice sometimes.

MR. NEUFELD: All right. Professor MacDonell, what experience have you had in the field of scientific crime investigation?

PROF. MACDONELL: Well, when I went to the University of Rhode Island in 1954 I worked for two years in the state crime laboratory in Kingston. It was located at the University of Rhode Island. I worked with Dr. Harrison who was director of the crime lab and my master's thesis was on the forensic applications of bloodstain pattern and typing and so on. Dr. Harrison conducted the courses in criminalistics, and in the process of taking the courses, we very often worked on cases together, around the area of the state of Rhode Island. In 1957 I began consulting on a more frequent basis and have done so ever since.

MR. NEUFELD: And I take it you belong to a number of professional societies?

PROF. MACDONELL: Yes, I do, quite a few.

MR. NEUFELD: I don't want you to list them all, sir, but are there any societies in particular which you feel are relevant to the testimony you are about to give in this case?

PROF. MACDONELL: Well, I'm a fellow in the American academy of forensic science. I have been for over 31 years; a member, several years before that. I am a member of the International Association of Bloodstain Pattern Analysts.

MR. NEUFELD: Could you please tell the ladies and gentlemen of the jury what that second association is.

PROF. MACDONELL: That is an association that was founded to encourage people who have studied the subject of interpreting bloodstain patterns, not serology, but the geometry of bloodstains. It was founded in 1983, at the request of many of my former students, to have additional training, so we conducted an advanced school, and during the first advanced school in November, 1983, this association was founded. It now has anywhere from 250 to 400 members. I'm not sure of the total, because some drop in and some drop out, and the ones that don't pay their dues aren't on the roster, so it is at least 250.

MR. NEUFELD: And do you have a special title in regards to the International Association of Bloodstain Pattern Analysts?

PROF. MACDONELL: Yes. I am the historian. I have been since the substitute--the organization was founded. I also classified as a distinguished member of that association.

MR. NEUFELD: What does it mean to be a distinguished member of that association, sir?

PROF. MACDONELL: It is recognized by your peers as having made substantial contributions to the subject or discipline of interpreting bloodstain patterns.

MR. NEUFELD: Are there any other people in this 200 to 400 member International Association of Bloodstain Analysts who have the title of distinguished member?

PROF. MACDONELL: No, not at the present time.

MR. NEUFELD: Now, have you authored any technical articles on forensic science?

PROF. MACDONELL: Yes, I have, quite a few.

MR. NEUFELD: Approximately how many?

PROF. MACDONELL: I think my curriculum vitae says 95. I think it is well over a hundred by now.

MR. NEUFELD: Have you authored any chapters in books or books themselves on the subject forensic science?

PROF. MACDONELL: Yes. I included those in the 100; quite a few chapters.

MR. NEUFELD: Have you authored any books on the subject of bloodstain interpretation?

PROF. MACDONELL: Yes. I issued initially a report for the Department of Justice that was I would call a pamphlet, or being very kind, a booklet. It was only 77 pages, but it included the results of two years of research for the law enforcement assistance administration under the Department of Justice. And since then I have revised that, 1983, and most recently 1993 I completely rewrote the text and it is now approximately 200 pages, I think, perhaps a little more.

MR. NEUFELD: And has that textbook on bloodstain interpretation been translated into foreign languages?

PROF. MACDONELL: Yes. I know it has been translated into Swedish, German and Spanish. I'm not sure about French.

MR. NEUFELD: Do you know whether or not that textbook that you wrote on bloodstain interpretation is used by law enforcement agencies throughout the world?

PROF. MACDONELL: I think so. That is why I get a lot of students.

MS. CLARK: Objection, that calls for speculation.

THE COURT: Overruled.

MR. NEUFELD: Now, in addition to your writing and your publication of books on the subject of bloodstain interpretation Professor MacDonell, have you ever lectured on the subject of forensic science before any recognized professional organizations?

PROF. MACDONELL: Yes, I have, quite frequently.

MR. NEUFELD: And have you lectured on that same subject outside this country as well?

PROF. MACDONELL: Oh, yes, many times in Australia, New Zealand, Europe in general, London, England, Scotland Yard, the United States, many, many states in the United States.

MR. NEUFELD: Sir, are you certified by any recognized forensic organization?

PROF. MACDONELL: Yes. I am certified as a senior crime scene analyst by the International Association for Identification.

MR. NEUFELD: What is the International Association of Identification, sir?

PROF. MACDONELL: It is the largest organization comprised of fingerprint identification technicians, photographers who go to crime scenes, people who would be involved in accident reconstruction or crime scene reconstruction, firearms identification experts, people that do questioned documents examination. It all has to do with identification in general, but it is more specifically fingerprinting in particular. It is a very large organization. It has membership all over the world.

MR. NEUFELD: Sir, have you ever received any awards in your particular field of forensic science?

PROF. MACDONELL: Yes, I have.

MR. NEUFELD: Now, I'm asking you this one. Is there any particular award in the area of forensic science that you are particularly proud of?

PROF. MACDONELL: Well, I'm always grateful and proud for all of them, but to say the most important--specifically in forensics?

MR. NEUFELD: Yes, in forensic science?

PROF. MACDONELL: I would say the John Dondero award which is given by the International Association for Identification which I received in 1974 in Washington, would be the one that I think is the one I hold most dear.

MR. NEUFELD: Is that award given out every year?

PROF. MACDONELL: No. It is given when they feel someone should receive it.

MR. NEUFELD: And who was the first recipient of that award, sir?

PROF. MACDONELL: John Edgar Hoover, director then at the time, 1957, he was given the first one, and he was director of the FBI at the time.

MR. NEUFELD: Now, you said you received it in 1974?

PROF. MACDONELL: Yes.

MR. NEUFELD: Now, you've heard the names since you have become involved in this case of some of the experts who have become involved as well for both sides?

PROF. MACDONELL: Yes, I have.

MR. NEUFELD: Are you aware of any other expert who was involved in this case who has also won the Dondero award?

PROF. MACDONELL: The only one that I know is involved is Dr. Henry Lee. If someone else has received it, I apologize to them, because I did not check the list for that particular question.

MR. NEUFELD: Now, in particular as a criminalist, sir, what experience have you had with human blood as evidence?

PROF. MACDONELL: I began actually working with human blood during my master's thesis at the University of Rhode Island where I effectively did what is now called immunoelectrophoresis, and in that process we created many bloodstains so we could analyze them, so--but in the process of creating them we were aware of the geometry that results from different events, different angular impacts and so on, so I began then. But as far as studying the geometry specifically, that began in 1966 when I had a case that I knew the patterns told me something, but I just did not know what, so I began doing research the same way Dr. Piotrosky did in Poland for this same reason. That was in 1895. He did the same thing. He had a case he didn't understand, at least that is in his text, and so he did a lot of research, too. It was not original with me. Many people have done this long before I did. I just was not aware of it. So I began actively working in 1966 and continued on and I was asked in a meeting in Toronto, 1969, to apply for a grant from the government to pursue this specific subject of interpreting the geometry of bloodstains, the cause/effect relationship. And after I did that and it was published and distributed worldwide by the superintendent of documents, I had a lot more research to do. People continually brought cases to us.

MR. NEUFELD: Now, Professor MacDonell, you mentioned before something about an institute. Are you currently teaching and have you been teaching for some period of time the discipline known as human bloodstain interpretation?

PROF. MACDONELL: Yes. As a direct result of the 1971 publication, it was called "Flight characteristics and stain patterns of human blood," I was asked first by the law enforcement assistance administration in Mississippi to come down and teach what I had written and I did. In March, 1973, I conducted what we call the first bloodstain institute. It was an institute on the physical significance of bloodstain pattern. It has a longer title. We refer to it as the bloodstain institute.

And directly following that, in the spring of the next year or later in the same year and then the spring of the next year, there was a demand from students who wished to study with me on this subject, and to date I have conducted 43 of these, with another one scheduled in September. The last one was in Sweden at the national police college in Sweden in May--in June. The one in May was in corning and the one in January was at the University of New Haven. We have run these in I think 13 states, the District of Colombia and in Australia and in Sweden and currently negotiating to run them in Denmark and Norway.

MR. NEUFELD: Generally who are your students at these various institutes that you run in this country?

PROF. MACDONELL: These would be mainly law enforcement personnel. They might be in a crime lab. A serologist, evidence technician that would go to the crime scene. We have had many forensic pathologists attend. We have had lawyers. We even had a veterinarian, so there is no restriction on who can apply, but they are welcome to come and learn. What they do with that knowledge of course is something else. I don't know what they will do.

MR. NEUFELD: Sir, in your capacity as a consulting criminalist have you ever had occasion to present expert testimony on the subject of human bloodstain evidence interpretation?

PROF. MACDONELL: Yes, I have.

MR. NEUFELD: Approximately, do you have any idea how many times or at least in how many states?

PROF. MACDONELL: On that particular subject, I would say conservatively 150 times in 32 states and two foreign countries--three foreign countries, excuse me.

MR. NEUFELD: Who generally retains you in these cases, sir?

PROF. MACDONELL: Initially I was retained by the Prosecution more than the Defense and as I train more and more Prosecution--I won't say Prosecution--I have trained more and more laboratory personnel who would be called by the Prosecution, it has become less and less difficult for the Prosecution to find their own expert and not call me, so currently I am called less by the Prosecution and more by the Defense, but that is just the number of times I may be asked to investigate a case. It is not the number of times I testify, by any stretch of the imagination.

MR. NEUFELD: By the way, professor, you mentioned that in your very early work back in 1954, `55, you did something involving electrophoresis. Would that fall into the category of serology?

PROF. MACDONELL: Yes, it would be serology, but that is the last contact I have had with serology except for doing routine blood grouping tests on wet blood, not even on bloodstains, so I am not a serologist.

MR. NEUFELD: Okay. Could you explain briefly to the ladies and gentlemen of the jury the difference between serology and bloodstain evidence interpretation?

PROF. MACDONELL: Serology is basically chemical reaction, serological reaction, immunological reactions, how one blood reacts with another or how blood clots or how it behaves in general. Bloodstain pattern interpretation is concerned only with the static aftermath when blood is divided up into smaller and smaller spots or droplets that produce small spots. We are interested in the cause and effect relationship and knowing the size, the shape, the distribution of bloodstains of any size, we can generally determine the kind of activity that could have produced it. We can't say a specific activity did this, but we can more often than not say this could not have done it, but here is one, two, three, four things that could have done it. We study, as I said, size, shape and distribution. Size will give you an idea of the energy available. Large drops, passive drops, falling, there is no active energy other than gravity. If you have an impact from a beating or a stabbing, the viscosity and the surface tension of blood come into play. Surface tension is what holds blood together like it does water or any other liquid. If you have energy to break the surface tension, it will subdivide into smaller and smaller particles. If you have a lot of energy, like a gunshot impact, then you have sufficient energy to literally atomize mist or create a fog, a fine spray. It is very characteristic of high energy. Most often gunshot, but not limited to gunshot, hand grenades, bombs, other such things. Airplane propellers will do the same thing. We have seen all of those. So the size gives us the energy, the shape gives you the directionality which you can trace back usually to an origin. Knowing the ellipticity or the distortion of the circular spot, we can project the angle of impact back and estimate the origin, say, above the floor or from a wall, based upon the shape. The distribution, its fanning out or dispersion, comes back to a common point of origin in two dimensions which we then can convert to three dimensions, but it also involves the dispersion and concentration. More concentrated the spots are, the closer you are to the origin, and then there are infinite numbers of transfer patterns from fingerprints, palm prints, to tool marks, and your imagination can be equivalent of putting something on an ink pad and transferring it to another surface. It doesn't matter whether it is appendage of a human being or a knife blade or a ballpoint pen or a ball hammer.

MR. NEUFELD: Professor MacDonell, let me see if I can simplify it a little bit. There has been testimony in this case by a number of witnesses about conventional genetic markers and DNA genetic markers. Is that something that is in the field of serology?

PROF. MACDONELL: Absolutely. I don't understand a bit of it.

MR. NEUFELD: Okay. On the other hand, your work involves sort of actually analyzing bloodstain form shapes, how they got there, that kind of thing, once they actually leave the body; is that right?

PROF. MACDONELL: That's correct. When the blood is out of the body, it is physics. When it is in the body, it is medicine.

MR. NEUFELD: Okay. Sir, you mentioned generally how many times you have testified as an expert. Have you also testified a number of times as an expert in this state, in California?

PROF. MACDONELL: In this case?

MR. NEUFELD: No, no, in this state of California?

PROF. MACDONELL: In the state of California? Yes, I have.

MR. NEUFELD: Okay. Do you know how many times you have testified, approximately?

PROF. MACDONELL: Yes, I have. I testified 21 times; one was a hearing and--I think maybe two were hearings. They weren't--they were in court--one was in court and one was not, but for the most part they have been in a court of law.

MR. NEUFELD: Of those 21 time do you know how many of them were you an expert for the Prosecution and how many of those you were an expert for the Defense?

PROF. MACDONELL: I think nine were from the Prosecution and that number varies, because to be fair, sometimes I testified more than once in the same case, not the next day, but maybe a week or a month or a year later, so if you take the three times I testified, for example, in a case, if I call that a case, then the percentages vary a little bit, so it is anywhere from 40 to 47 percent for the Prosecution and the difference for the Defense.

MR. NEUFELD: Were you retained by Mr. Simpson's attorneys in this case, sir?

PROF. MACDONELL: Yes, I was.

MR. NEUFELD: And approximately when were you retained?

PROF. MACDONELL: In late August of 1994.

MR. NEUFELD: That is when you began consulting?

PROF. MACDONELL: In this case, yes.

MR. NEUFELD: Okay. That is what I meant. And since last August how much have you been paid for your expertise, sir?

PROF. MACDONELL: So far I've received $10,500.

MR. NEUFELD: And that would cover since last August?

PROF. MACDONELL: Well, it is not current. I've made two trips since then and done a few experiments, so it is really not up-to-date, but that is what I had been paid if that was your question.

MR. NEUFELD: Okay. Now, sir, in connection with your work in this case, did you, on April 2nd of 1995, conduct an examination of the socks which are commonly referred to as item 13, socks recovered from the bedroom of Mr. Simpson?

PROF. MACDONELL: Yes, I did.

MR. NEUFELD: And where did this examination occur and who was present?

PROF. MACDONELL: Well, I would have to consult my notes to be sure of the names, but it was here in the Los Angeles area. It was at the technical associates, incorporated, forensic laboratory in Altadena, California, and present were Dr. Henry Lee, Peter Neufeld, Mark Taylor and Greg Matheson.

MR. NEUFELD: And at that point the person who actually brought the evidence to the laboratory, would that be Mr. Matheson from the Los Angeles Police Department?

PROF. MACDONELL: Yes, it was.

MR. NEUFELD: Sid laboratory?

PROF. MACDONELL: Correct.

MR. NEUFELD: And did Mr. Matheson actually unpackage that evidence for your inspection?

PROF. MACDONELL: I'm not sure whether he did or Dr. Lee did, because I think was done in more than one bag. He may have opened the first one and Dr. Lee or Mark Scott Taylor may have opened the second one.

MR. NEUFELD: When you examined the socks on that occasion, April 2nd, did you specifically examine sock 13-a, also known as sock 42-a by Mr. Sims at the Department of Justice?

PROF. MACDONELL: Yes, I did.

MR. NEUFELD: And when you examined that sock did you specifically examine an ankle stain which had already been DNA typed consistent with Nicole Brown Simpson?

PROF. MACDONELL: Yes, I did.

MR. NEUFELD: And was that ankle stain--did it have a portion of it cut out?

PROF. MACDONELL: Yes. There was a rather irregular area cut out that was basically rectangular with another rectangular appendage sort of on one side of the long dimension.

MR. NEUFELD: And were you able to see the remaining portion of that ankle stain with the naked eye?

PROF. MACDONELL: Oh, yes, yes.

MR. NEUFELD: During the April 2nd examination with you and Dr. Henry Lee, did you use microscopes to assist you?

PROF. MACDONELL: Yes, we used microscopes. I used my hand magnifier and high-intensity illumination, but we used microscopes, compound microscopes, stereo binocular microscopes to be specific.

MR. NEUFELD: And were photographs taken through the microscope that day?

PROF. MACDONELL: Yes. The microscope Dr. Lee had had an attachment and we did take pictures.

MR. NEUFELD: And did you both look through each other's microscopes?

PROF. MACDONELL: Yes. We alternated. If I found something that I thought Dr. Lee should see, I directed him to see what I had just been observing, and vice versa.

MR. NEUFELD: And were photographs also taken without the aid of the microscope?

PROF. MACDONELL: Yes, there were.

MR. NEUFELD: Now, sir, have you had an opportunity to review portions of the Department of Justice serologist Gary Sims' testimony in this case?

PROF. MACDONELL: (No audible response.)

MR. NEUFELD: Portions of it?

PROF. MACDONELL: Yes, I have read it. I have read quite a few. I had to stop and think just a moment which one that was, yes.

MR. NEUFELD: Are you aware, sir, that Gary Sims testified that bloodstains on this sock may be spatter stains?

PROF. MACDONELL: Yes.

MS. CLARK: Objection.

PROF. MACDONELL: I am.

MS. CLARK: Objection, your Honor. I think that misstates--I think that misstates the testimony. I would like to see the transcript reference.

THE COURT: Citation, counsel?

MR. NEUFELD: Hum?

THE COURT: Citation.

MR. NEUFELD: Yeah. One second, your Honor.

(Brief pause.)

MS. CLARK: May we also see what Mr. MacDonell is referring to? I--I don't know if it refreshes memory.

THE COURT: There has been no offer that he has used anything.

MR. NEUFELD: Page 27776 is a description.

THE COURT: Do you want to show that to Miss Clark.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Fine.

MR. NEUFELD: Were you aware that Mr. Sims said that what he saw were spatter stains or something along those lines?

PROF. MACDONELL: Yes.

MR. NEUFELD: All right. In your opinion, Professor MacDonell, is the ankle stain that you saw a spatter stain?

PROF. MACDONELL: Not based upon just the--what you said or my examination. The examination--

MS. CLARK: Objection. That misstates the witness' testimony. He never indicated he saw a stain, just a cut-out.

THE COURT: Overruled. Overruled.

MR. NEUFELD: No.

PROF. MACDONELL: Not based upon the examination that I made of the socks at that time. I did not find any distribution of blood that I could consider a spatter. I have seen other more convincing evidence of it.

MR. NEUFELD: Okay. Now, with respect to the ankle stain, I want you to focus on that, in your opinion was the ankle stain a spatter stain?

PROF. MACDONELL: Oh, no, not the ankle stain. I thought you meant the entire stocking.

MR. NEUFELD: No. I'm focusing now on the ankle stain in particular.

PROF. MACDONELL: The ankle stain was very large; it was not spatter.

MS. CLARK: Objection, your Honor. That calls for speculation. This witness only saw a hole. There was no stain there; it was cut out.

THE COURT: Overruled.

MR. NEUFELD: Professor MacDonell, first of all, was there stain surrounding the perimeter of the hole that was cut out?

PROF. MACDONELL: Yes. The cut-out was taken out of the middle of the stain. That is the way you usually do it.

MR. NEUFELD: Are you aware that Mr. Sims has already testified that there was a bloodstain on the perimeter of that cut-out area?

PROF. MACDONELL: Yes, I am.

MR. NEUFELD: Could you please define what "Spatter" is.

PROF. MACDONELL: "Spatter" is simply the result of impact to usually a liquid. In this instance we are discussing blood, and it creates a spray of small drops, not like gunshot, but it creates a spray and that spray then is projected, and if it strikes a target, in the case of the target, I mean a surface that it hits, like it might hit the table or a table top or a wall, when it strikes that, when you see a sufficient number of small spots, you can determine that it is the result of an energy source consistent with a spattering, such as just clapping your hands if you had a liquid in your hands.

MR. NEUFELD: Now, you said that in your opinion the stain on the ankle was not a spatter--spatter pattern or spatter?

PROF. MACDONELL: No, it was very large. It was about an inch-by-inch-and-a-half oval.

MR. NEUFELD: And in your opinion, sir, what type of stain was that bloodstain?

PROF. MACDONELL: That was a transfer pattern resulting from, I'm quite sure but not positive, a compression transfer. A lateral or swiping action is the other possibility, but on the dark socks I could not see any evidence of a feathering out on either side, so I conclude it has to be a compression transfer with no lateral movement sideways, or if any, extremely slight.

MR. NEUFELD: Now, when you say a compression movement, would that be consistent with a smear as opposed to a spatter?

PROF. MACDONELL: Yes. A smear generally I think is interpreted as having some kind of a lateral motion, otherwise it is just a drop or a pool, but it is not as consistent with a smear as it is just having blood on your hand or some object and touching it and pulling it away. For example, a fingerprint made with blood that is identifiable is not a swipe action or a smear or it would not be identifiable. It is a direct compression and release.

MR. NEUFELD: Okay. You mentioned earlier that you and Dr. Lee took some photographs through the microscope that day; is that correct?

PROF. MACDONELL: Yes, it is.

(Discussion held off the record between Defense counsel.)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Your Honor, I believe this will be Defendant's 1276.

THE COURT: And what is it? A photograph--

MR. NEUFELD: It is a photograph--not--it is a photograph without the aid of a microscope of sock 13-a.

THE COURT: Thank you.

MR. NEUFELD: Showing the ankle stain.

THE COURT: Proceed.

(Deft's 1276 for id = photograph)

MR. NEUFELD: I show you this photograph, Professor MacDonell, and ask you if you recognize it?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Is that picture a fair and accurate depiction of the way the sock with the cut-out at the ankle and the ankle stain appeared to you when you observed it with Dr. Lee on April 2nd of 1995?

PROF. MACDONELL: Yes, it does.

MR. NEUFELD: May I have it on the elmo?

(Brief pause.)

MR. NEUFELD: Now, you mentioned a moment ago, Professor MacDonell, that when you looked at the stain around the outside of the cut-out area that you could tell that it was not the result of a spatter or a splash on that sock; is that correct?

PROF. MACDONELL: That's correct.

MR. NEUFELD: And what was it about what you saw on that stain that led you to that conclusion?

PROF. MACDONELL: It is really very simple. The stains that are produced by projection of any liquid will go between the fibers. If you had on, say, very heavy corduroy jeans or something and you were to drop a drop of paint, it would go right between the fibers and you would have a round uniform stain. If you had paint on your fingers and wiped across it or just touched it lightly, you would stain only the top part of the weave so you would see dark ribs between the white paint, and that is the analogy that allows you to see whether blood is on the surface of a fiber or it is actually saturated and down through it. If you have enough, as in this case, enough blood to stain deeply enough, you will have it going through even though it is a transfer, except on the periphery where it will show that there wasn't as much blood and it is more easily identified on the top of the fibers, so there again, we are looking at a two-dimensional representation of what we saw in a three-dimensional format with a stereo binocular microscope. Further, we could manipulate by rotating, tipping and so on, the material we were examining and in that way we can see many things that cannot be reduced to a single depth of field where you are looking at the surface of an object. We had great advantage doing it actually with the physical evidence, above and beyond a simple photograph.

MR. NEUFELD: By the way, Professor MacDonell, could you estimate about what percentage of that stain at the ankle is cut out in the picture and how much remains?

PROF. MACDONELL: I'm just estimating the overall area from the extent of the stain as I see it and then the cut-out area. I would estimate that the cut-out is perhaps 40 percent. I don't think it is half the amount is there and I say that because it is usually more difficult to estimate the peripheral concentration than it is the center, so I say about 40 to 50 percent maximum.

MR. NEUFELD: Okay. And you said a moment ago that the way you can distinguish between a splash of blood that dropped onto a sock, as opposed to blood that is actually placed onto the sock by some other object, is the way it actually appears on the fibers themselves; is that right?

PROF. MACDONELL: Yes. I have some samples even in my book or I brought photographs of that if you think the description is not adequate.

MR. NEUFELD: Here is what I would like, sir. First of all, tell me--you said that you also took photographs with Dr. Lee that day with the aid of the microscope; is that correct?

PROF. MACDONELL: That is correct, yes.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: I will show you 1277, your Honor.

THE COURT: All right. This is a photograph from microscopy?

MR. NEUFELD: A photo--a photomicrograph.

MR. NEUFELD: Photomicrograph.

THE COURT: Thank you.

(Deft's 1277 for id = photograph)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

THE COURT: Proceed.

MR. NEUFELD: And I show you this picture, sir. Now, sir, is that photograph--do you recognize that photograph?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Okay. Is that photograph a fair and accurate representation of the way the stain appears when you look at it under the microscope on the outer surface just outside the area that has been cut out?

PROF. MACDONELL: Yes, it is.

MR. NEUFELD: And may I please put this on the elmo?

THE COURT: Yes.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Now, Professor MacDonell, could you please explain what it is about this photograph that is taken of the outer surface of that sock and the perimeter just around the cut-out area that indicates to you this is a contact stain made by some object coming into contact with the sock as opposed to blood splashing onto the sock?

PROF. MACDONELL: Yes. I think it is very clear that the staining, the dark or red portion which is blood or purported to be blood, I did not do any presumptive tests on it even, the red area is just on the surface of the fibers and very non-uniform. There are many white voids. Now, I must explain the white voids are the reflection of the black threads. It is very high illumination and intensity is high and therefore even though it is a black fiber, it reflects light and glistens, the same way a black cat would glisten in the sun, so that is not a distortion other than by color. The red, however, absorbs the illumination and reflects more or less its accurate color and you can see the many voids in it, particularly as the screen as I see it, on the right about halfway up, there is a nice clear void that shows and it is surrounded by red and they are all over, so that is what a transfer looks like. It is classic.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Could you on the one that you have, sir, in front of you--you have markers, your Honor, I believe?

THE COURT: Should be in the--there is one up here as well.

MR. NEUFELD: All right. Could you, using a--for contrast--could you please make a blue circle around what you regard as that upper surface of the fiber where the blood makes contact?

PROF. MACDONELL: Well--

MR. NEUFELD: An example of it?

PROF. MACDONELL: An example?

MR. NEUFELD: Yes.

PROF. MACDONELL: (Witness complies.)

MR. NEUFELD: And sir, could you now using the black marker, could you please circle for the ladies and gentlemen of the jury a portion of the sock which shows the area that doesn't get--I'm sorry, that is not in contact with the blood?

THE COURT: You mean one of the void surfaces?

MR. NEUFELD: One of the voids. Thank you, your Honor.

PROF. MACDONELL: Not a very good black marker. It is coming out light blue.

MR. NEUFELD: One moment, professor.

THE COURT: I am all out of black markers. Mrs. Robertson, do you have any felt-tip?

PROF. MACDONELL: I'm sorry, I thought I had one.

THE COURT: Thank you.

PROF. MACDONELL: Thank you.

MR. NEUFELD: Professor MacDonell, just so I understand it a little more clearly, for myself at least, what you are saying is that the--that what makes this this kind of--this kind of stain, as opposed to a splash or spatter, is that the blood is only hitting the upper portions of the fibers; is that correct?

PROF. MACDONELL: That's correct. The red areas are where blood is on the top of the fibers. The white area, if it had been projected, would be also stained, so it is just on the surface.

MR. NEUFELD: Your Honor, with the Court's permission, because I do believe that there is a little bit more detail, may I pass these two around to the jury? They are identical. It will save some time.

THE COURT: They are identical except one has been marked and one has not, so they are no longer identical.

MR. NEUFELD: Fine. If I may, I will just pass the one that has been marked.

THE COURT: Would you hand that to juror no. 1, please.

MS. CLARK: Excuse me, your Honor. Can I see what the witness has marked?

THE COURT: Certainly.

(Brief pause.)

(Discussion held off the record between the Deputy District Attorneys.)

(The exhibit was passed amongst the jury.)

THE COURT: All right. The record should reflect that 1277 has been viewed by each member of the jury panel.

MR. NEUFELD: By the way, Professor MacDonell, if two stains occupy the same, let say, dimension--do you know the approximate dimensions, by the way, of this stain that you saw on the ankle?

PROF. MACDONELL: Yes. The overall stain before it was--well, even after it is cut out, my best estimate is about one by one and a half inches. One and a half inches running in this picture horizontally and the one invertically (Sic) as you look at the picture, as I am looking at it with the arrow facing up.

MR. NEUFELD: Now, assume for the moment that you have two stains that are the same dimensions, each an inch by an inch and a half. One is the result of blood splashing in that area, the other is the result of this kind of contact with another object that you just described as occurring here. Which stain would actually have more blood in it, if they occupy the same surface area?

PROF. MACDONELL: Oh, the one that was added by, I would say, dripping. It is difficult to say how you project a stain that size or a blood volume that large. Dripping blood would take considerably more.

MR. NEUFELD: Okay. And so--by the way, did you need the--I'm sorry. Now, sir, are you familiar with Gary Sims' testimony that when he examined--well, let's go back one second.

(Discussion held off the record between Defense counsel.)

THE COURT: All right. This is 1276 on the elmo.

MR. NEUFELD: Thank you.

MR. NEUFELD: First of all, could you--can you point out--maybe it would be useful to use the pointer. What is the inner surface of the opposite side of this sock?

THE COURT: Why don't you hold on a second. Do you want to do that with the power point?

MR. NEUFELD: Okay. My lack of experience here makes me not the best qualified to do that.

THE COURT: I'm just saying, I mean, do you want the professor to do that with the superimposed arrow?

MR. NEUFELD: Fine. Superimposed arrow is fine.

MR. NEUFELD: Do you see where the arrow is, sir?

PROF. MACDONELL: Yes.

MR. NEUFELD: Would that be characterized, that area, as the inner surface now of the opposite side of the sock?

PROF. MACDONELL: Yes, it could be called that.

MR. NEUFELD: Okay. Now, are you familiar, sir, with Gary Sims' testimony that when he examined the inner surface of the opposite side of this ankle stain he said, "There was no indication seen of soaking through to the other side," unquote? That is at page 27767 in the transcript. Were you aware that Mr. Sims said that?

PROF. MACDONELL: Yes.

MR. NEUFELD: And sir, are you familiar with Mr. Sims' testimony that the few reddish brown specks he observed on this inner surface of the opposite side were merely powdered blood that he believed had flaked off the initial stain after it was already dried? Are you aware of that, sir?

PROF. MACDONELL: Yes, I am.

MR. NEUFELD: Do you agree with Mr. Sims' conclusions?

PROF. MACDONELL: Well, I can't disagree with what he has said about what he saw, but I saw things in addition to what he has said. He said he saw powdered blood, powdered red material. He may have. I didn't see very much of that, but I did see some red spots that could be characterized as powdered blood, but to me a powder is ground up. It is like fine sugar, powdered sugar, confectioner's sugar as opposed to flakes, and I saw more of what you might call Cornflakes compared to sugar or something like that.

MR. NEUFELD: When you looked through the microscope at the inner surface of the opposite side of the sock, did you see any evidence that the blood had actually soaked through to the other side of the sock?

PROF. MACDONELL: Yes, I did.

MR. NEUFELD: Could you please tell the ladies and gentlemen of the jury what evidence you saw that led you to that conclusion.

PROF. MACDONELL: I saw little balls of blood which were obviously wet.

MS. CLARK: Objection, your Honor. Objection, objection.

THE COURT: Sustained.

MR. NEUFELD: Could you, without making a conclusion as to what the balls were, could you please describe them for the ladies and gentlemen of the jury?

PROF. MACDONELL: I saw some small red balls that appeared to be a dried liquid that was on some of the fibers on the inside of the opposite side and some of these were photographed, one in particular. But again, it is impossible to see from a single photograph the different depths of focus or depths of field, rather, so we had one that was particularly good, Dr. Lee called my attention to it, and we photographed it. There were several.

MR. NEUFELD: Without reaching the conclusion of what they actually were, did these little red balls have the appearance of blood?

PROF. MACDONELL: Yes, they certainly did.

MS. CLARK: Objection, your Honor.

THE COURT: Overruled.

MR. NEUFELD: And what about them gave the appearance of being blood on the inner surface of the opposite side of the sock?

PROF. MACDONELL: They appeared to be the right color and give what I would call the right sheen or reflection. Blood has various characteristics and one of them is its appearance under illumination and whether transmitted or reflected.

MS. CLARK: Objection. Motion to strike.

THE COURT: Sustained. The answer is stricken. Proceed.

MR. NEUFELD: Now, Professor MacDonell, you said that you examined this inner surface of the opposite side of the sock under the microscope; is that correct?

PROF. MACDONELL: That's correct.

MR. NEUFELD: And when you examined it, were photographs taken?

PROF. MACDONELL: Yes, they were.

(Discussion held off the record between Defense counsel.)

THE COURT: 1278.

(Deft's 1278 for id = photograph)

MS. CLARK: Excuse me. Can I--

MR. NEUFELD: Oh, sorry.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Professor MacDonell, I show you what has been marked as Defendant's 1278. Do you recognize that photograph?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Is that blow-up a fair and accurate representation of what you observed under the microscope on April 2nd, 1995, when you looked at the inner surface of the opposite side of the sock?

PROF. MACDONELL: Yes, it is.

MR. NEUFELD: Now, would it help to explain what you saw on the inner surface of the sock by showing that to the jury?

PROF. MACDONELL: Well, I wouldn't help me; it might help them.

MR. NEUFELD: Okay. Your Honor, with the Court's permission, may Professor MacDonell stand up, because the photograph is only of a limited size and if he holds it up from where he is not everyone would be able to see it. I would ask that he be able to approach the jury.

THE COURT: Stand over by the podium. Mr. MacDonell, over by the podium.

MR. NEUFELD: From here do it?

PROF. MACDONELL: This is greatly enlarged.

MR. NEUFELD: Can the Court inquire whether everyone can see it?

THE COURT: What we are going to do is he is going to have to show it to various portions of the jury panel at different times because of the length of the jury box. Explain it once and then you can re-point to the same location for the other jurors but start there where you are, professor.

PROF. MACDONELL: These are many fibers constituting what you call a thread, and I think perhaps the best one that we photographed that shows a dried, red fluid, is round and it is adhering to a fiber which, in my opinion, is part of the thread. It is woven in. It is not dropped there. And these are--these are high magnification. I don't know the exact magnification, but the smaller print was seventy. I think this is perhaps well over a hundred magnification. And that just shows a red area that is, in my opinion, and conclusion, a fluid that is dried on this fiber which again appears to be part of the thread. There are other red spots in this picture, but they are not in focus because it is a very narrow depth of focus--depth of field, to be completely accurate, with an objective lens of probably seven or ten diameters. I don't know which one was the objective lens, but whichever one was the objective, the other one, the ocular was the converse, so one was seven and one was ten on the microscope. That gives us 70 magnification as we took it and that gives you the view on the microscope.

THE COURT: All right. Mr. MacDonell, would you point to that red smear and show the members of the jury to your right. To the right.

MR. NEUFELD: Your Honor, with the Court's permission I would ask that he actually make a green circle around that red sphere.

THE COURT: I just want to make sure he points to it before it is marked, so that all the jurors can see it before it is marked, and then we will allow him to do that.

PROF. MACDONELL: (Witness complies.)

THE COURT: All right. Thank you, sir.

MR. NEUFELD: And with the Court's permission--

THE COURT: Certainly.

MR. NEUFELD: Thank you. Blue will work.

THE COURT: Mr. Neufeld, are you going to be marking many more of these?

MR. NEUFELD: Hum?

THE COURT: Are you going to be marking many more photographs?

MR. NEUFELD: No.

THE COURT: All right. The record should reflect that Professor MacDonell has placed a blue circle around what appears to be a red spherical object--

MR. NEUFELD: Now--

THE COURT: --on 1278.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Now, I'm calling your attention again to the elmo, the overhead, Professor MacDonell. Do you see what is the inner surface of the opposite side of the sock?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Okay. Can you--maybe you should use the arrows--can you describe, while you are holding up the large photo in front of you, what is actually being depicted in that photograph in terms of the weave of the fibers?

PROF. MACDONELL: Well, right at the moment the arrow on this screen--the arrow on this screen is right on one of the fibers which would be a thread that is vertical in this picture, and that would correspond to these very light areas on the large photograph--

MR. NEUFELD: I'm sorry, could you hold it up vertically and point to what you are describing to the jury?

PROF. MACDONELL: Well, the large white threads that are comprised of many fibers interwoven is shown where the arrow is right at the moment. It is almost to a dark line on the left which would be between the threads, just the same thing. The inner surface is shown there but at a much higher magnification.

MR. NEUFELD: And sir, would these red balls that you observed when you looked through the microscope, would that be readily observed with the naked eye?

PROF. MACDONELL: Oh, no, you couldn't see these with the naked eye.

MR. NEUFELD: Okay. And sir, you said that you simply took this photograph to illustrate for the jury one of those red balls that looks like blood?

PROF. MACDONELL: Yes.

MR. NEUFELD: My question is when you looked through the microscope did you see many more of those red-like balls?

PROF. MACDONELL: I saw perhaps six or seven that I would say appeared like this that were round. There were other red, I would call them flakes or if you like powder, that were not, in my opinion, bonded to the fibers, but the ones that were bonded would indicate to me that whatever it was that had bonded was wet at the time it dried.

MS. CLARK: Objection, speculation; no foundation, your Honor.

THE COURT: Overruled.

MR. NEUFELD: And when you say, sir, that you saw six or seven of those rounded red liquid balls that had the appearance of blood that were bonded to the material, was that from a search of the entire inner area of that cut or was it from a very small area within that inner surface of the opposite side?

PROF. MACDONELL: First, it wasn't liquid. It had been liquid, but it is impossible to tell where this photograph was taken, other than it was within the cut-out area. I saw several of them, and obviously this is the best one that Dr. Lee and I saw together and it is the one that he photographed. He took some other photographs, but this I think depicts most clearly what we saw.

MR. NEUFELD: Now, sir, you said a moment ago that--well, withdrawn. Seeing these bonded drops, as opposed to those flakes that you were describing, what does that tell you about the condition of those red balls at the time they first made contact with the inner surface of the opposite side of the sock? In other words, were they wet or were they dry?

PROF. MACDONELL: They were fluid, and like fluids, they formed a ball, because that is the lowest surface area to any geometric figure that is in air, blood, rain, any liquid, is round; it is not teardrop-shape. It is erroneous to show a teardrop to depict perspiration, blood drops, anything. Artists do that and we are conditioned that that is what we are supposed to think of as a liquid in the air, like rain. It does not look like that. It is round. Because it has this cohesive force to pull it together, when it is bonded to something, a wet something, I should say, such as this red liquid has done, it will tend to ball up very much like a drop of water on the hood of a car that has been waxed. It looks like it is a ball sitting there rather than spreading out. It does not wet the surface. So when given the chance a liquid will pull together in the shape of a sphere or a ball and so there was a liquid before it dried.

MR. NEUFELD: And sir, having observed these different balls of red liquid that appeared to--that looked like blood bonded to the inner surface of the opposite side of the sock, what conclusion did you make about whether the ankle was in or outside that sock at the time the transfer occurred?

MS. CLARK: Objection, speculation, no foundation.

THE COURT: Sustained.

MR. NEUFELD: Sir, were you able, based on your observations of your microscopic examination of this sock, to reach an opinion as to at what point those liquid balls were transferred to the inner surface of the other side of the sock?

MS. CLARK: Objection, speculation; no foundation.

THE COURT: Sustained. Let's me see counsel over at the side bar without the court reporter, please.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Mr. Neufeld, why don't we take our break at this point, since we lost one of our jurors here.

MR. NEUFELD: All right.

THE COURT: Okay. We are back. Okay. Ladies and gentlemen, we are going to take our lunchtime recess. Please remember all my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to converse with you with regard to the case. And we will stand in recess until 1:15. Professor MacDonell, you are ordered to come back at 1:15. All right. We are in recess.

(At 11:59 A.M. the noon recess was taken until 1:15 P.M. of the same day.)

(Due to the medical emergency of a juror, an adjournment was taken until Friday, July 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 Thursday, July 27, 1995

Volume 195 pages 39029 through 39174, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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I N D E X

Index for volume 195 pages 39029 - 39174

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Day date session page vol.

Thursday July 27, 1995 A.M. 39029 195

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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.

MacDonell, 195 Herbert 39101n

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

MacDonell, 195 Herbert 39101n

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EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

1276 - Photograph 39126 195 of a close-up view of a sock

1277 - Photograph 39129 195 of a micrograph of a sock with a blue circle

1278 - Photograph 39139 195 of a micrograph of a sock with a blue circle