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

APPEARANCES: (Appearances as heretofore noted, also appearing, Kelli Sager, Anne Egerton, and Patricia Duncan.)

(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: Back on the record in the Simpson matter. Mr. Simpson is present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld. And the People are represented by Mr. Darden, Mr. Goldberg and Miss Lewis. Good morning, counsel.

MS. LEWIS: Good morning, counsel.

THE COURT: We have a number of motions that have been filed and previously the Court had indicated that I would hear motions regarding the KNBC news telecasts, and the subpoena for a KNBC News broadcaster to testify in this matter. We will take that matter up this morning. And we have two other matters regarding contamination of the LAPD DNA lab and the Gretchen Stockdale matter, but those matters we will take up at a later time. All right. Miss Lewis, you have something you need to address the Court on?

MS. LEWIS: Yeah, the Gretchen Stockdale matter. The Court had advised me last week that it didn't feel an SDT was an appropriate method by which to obtain this tape from the Defense, so I filed a motion to compel, as the Court suggested this morning. I just want to get a hearing date. It is pretty straightforward. There is a statute right in the discovery statutes which exempts law enforcement investigation that I failed to cite to the Court last week that is positive. I don't think it will take the Court long to decide this matter.

THE COURT: All right. It looks to me, because of some of the medical appointments, that we will have to make adjustments for, we will have room in our court day to take these up, but let me see how long we run with this shield law business--

MS. LEWIS: Okay. Great.

THE COURT: --before we make that determination. All right. Dean Uelmen, do you want to go first on this?

MR. UELMEN: Yes, your Honor.

THE COURT: We actually have a number of sub-issues here. I note that we have a motion to quash that subpoena duces tecum. We have a motion to quash a subpoena on Tracie Savage, and we have a number of other sub-issues in that category, so how do you suggest we proceed, first of all?

MR. UELMEN: Well, we suggest calling Tracie Savage to the witness stand to see if she declines to reveal the source and we will then proceed with a showing of why the qualified privilege should be overcome in this case. Privilege is a misnomer. Why the assertion of immunity should be overcome in this case.

THE COURT: All right.

MR. UELMEN: I don't believe the--the assertion of the immunity is grounds to quash the subpoena, but if your Honor wishes to hear argument on the motion to quash the subpoena before we put Miss Savage on the stand--

THE COURT: I think that is what comes first logically.

MR. UELMEN: All right.

THE COURT: All right. Let me ask who is going to represent the People on this matter?

MR. GOLDBERG: I will, your Honor.

THE COURT: All right. Do you have any position regarding the motion to quash the subpoenas on KNBC, the subpoena DT and the motion to quash the subpoena on Tracie Savage?

MR. GOLDBERG: Well, your Honor, we don't have a position, per se, as to some of the issues because they involve policy concerns that don't directly involve the People. However, one of the prongs of the three-prong test that the Court would rule under, under Delaney versus Superior Court, has to do with the materiality of the evidence, and obviously we have a very strong interest in how your Honor would rule on that because, ultimately it would affect the Court's decision if there was any information that resulted from these inquiries. It would affect--

THE COURT: That is an issue that I will get to if I deny the motions to quash the subpoenas.

MR. GOLDBERG: If you deny the motions? That's right. But there is a question here as to placing the cart before the horse, because it seems to me that this is a primary threshold issue that the Court would have to concern itself with prior to making the decision as to whether or not it was going to quash the subpoena.

THE COURT: All right. Miss Egerton.

MS. EGERTON: Good morning, your Honor.

THE COURT: Good morning, counsel. Do you want to approach and make your appearance for the record. I guess the ball is in your court then because what I will entertain at this point is a motion to quash the subpoenas, both the SDT and the subpoena for Tracie Savage.

MS. EGERTON: Your Honor, Kelli Sager is going to address the motion to quash with respect to Miss Savage. As the Court knows, our motion on the SDT is basically sort of a tagalong on that, which I will be happy to address after Miss Sager.

THE COURT: All right.

MS. EGERTON: Thank you.

MS. SAGER: Good morning, your Honor.

THE COURT: Good morning, Miss Sager.

MS. SAGER: Kelli Sager appearing on behalf of Tracie Savage as a reporter for KNBC television. As the Court has indicated already on the record, with me today are Anne Egerton and Patricia Duncan who are in-house counsel for KNBC. And we have filed a motion that I understand the Court has received and reviewed to quash the subpoenas directed to Miss Savage on two grounds. That is, we understand that the only two things that the Defense is seeking from Miss Savage are to reveal her confidential sources we think is protected under the 1st amendment of the California constitution, the California evidence code. And to the extent that they are seeking to have her authenticate tapes that were broadcast by KNBC, that she is not the appropriate person to do that, that a custodial declaration or custodian of records who actually keeps the broadcast footage would be a more appropriate person to testify, so neither of the two things which the Defense seeks to have Miss Savage testify about are appropriate and that is why the subpoena should be quashed. If I could just start with a premise that in California the shield law protecting reporters from having to reveal confidential sources has existed, at least in statutory form, for more than sixty years. And fifteen years ago the California voters elevated that provision to a constitutional provision and California courts have recognized that by doing that the voters intended, as the legislature had previously indicated, to indicate that this was a very important principle under California law and in fact that it was to be given the highest possible protection, which becomes important when the Defense attempts to compare the California shield law protections to other protections that are given statutory protection. The leading case is clear is Delaney versus Superior Court which although the circumstances there were very, very different from the circumstances in this case, at least laid out factors that the Court is to consider in making a determination in a case involving a criminal Defendant who is attempting to seek information from a reporter. And Mr. Goldberg indicated correctly there is a threshold issue that the court must reach before it engages in any kind of balancing equation. The Defendant has the burden of proving that there is a reasonable possibility that the information that they are seeking will materially assist the Defendant in his case. And if this threshold inquiry is not met, the Court's inquiry stops. It need not reach any of the other factors or engage in any balancing analysis. The language is important. Although the Defense has suggested that this is an easy threshold to meet, in fact it is not. It must be a reasonable possibility first, not merely any possibility, that the information will assist the Defendant, and the Delaney court specifically said it must go beyond mere speculation or conjecture or some hypothesis about how this information might affect the Defendant's case. That goes to the likelihood of the information being useful. But there is a second prong. It must materially assist the Defendant's case, so it must be significant information to the Defendant's case, not merely any information that has a potential of affecting their--their Defense. And even if you look in the dictionary, Webster's defines "Material" as, quote, "Having real importance or great consequence." So even if the Delaney court indicated the information doesn't necessarily need to exonerate the criminal Defendant, it has to be something more than merely tangential or peripheral information, it implies, to sort of direct proof of an important issue in the case.

Neither of these two parts are met in this case, let alone both of them. It certainly--as under the Defense's theory, this information is sought simply for the purpose of establishing some possibility that there might have been some conspiracy to frame the Defendant with respect to the planting of blood on the socks found in Mr. Simpson's bedroom. The identity of the sources of a KNBC news broadcast in September is certainly not direct evidence of any conspiracy, and in fact as Mr. Goldberg argued I thought quite persuasively last Thursday, it is counter-intuitive that someone who is engaging in a conspiracy would run out and the first thing they do before the conspiracy has even been affected is tell a reporter, oh, here is what we've done. Why reveal that information for public dissemination on a date when the testing simply had not been done if that in fact is the case? It is counter-intuitive that someone engaged in a conspiracy or who knew about the conspiracy would have done that. But moreover, it is not even indirect evidence of a conspiracy. And the Defendant's argument here is incredibly attenuated that someone who was involved in some kind of conspiracy who may have told a numbers reporter about tests so that they would know that the tests which had not yet been conducted, according to the evidence presented in court, were going to reveal something that had not yet occurred. Any other explanation for how this information came to Miss Savage is no more reasonable than the attenuated link of factor upon hypothesis upon speculation that the Defense would like to use it for. The sources may well, as Mr. Goldberg suggested, have simply mistook the PGM subtype testing for DNA testing, which as Mr. Goldberg indicated, does have an element of genetic markers, and someone revealing that information might have mistook that to mean genetic testing as in DNA testing as opposed to the PGA (Sic) subtype testing or they simply may have extrapolated what they knew was going to occur, DNA testing with the information that had already been proven, the PGA (Sic) subtype information and extrapolated out to likely DNA test results. Those explanations are far more reasonable than what the Defense would suggest and to--in order to neat the standard of reasonable probability of materially affecting the Defense, I think they have to show something more than that. And it is important or instructive that even the defendants themselves, the Defense counsel up until the time where this Court indicated that Miss Savage would have to take the stand, have never taken the position that the sources are important, let alone critical or go to the heart of their claim. And Mr. Uelmen repeatedly advised the Court on Thursday that Defense counsel does not believe that he needs to know precisely who the sources are of this information in order to establish their case. Given that and given that it certainly is not direct evidence or even arguably reasonable indirect evidence of what the Defense is, I think that they haven't met the threshold showing that

This--that the Delaney court established. But even assuming that the court found the threshold test had been met, which we do not believe it has been, then the court must go beyond that and look to the factors that the Delaney court identified and balance those factors and consider those factors before requiring the reporter to take the stand. There were four identified in the Delaney opinion and we would submit that all four argue in favor of quashing the subpoena. The first is whether the information is confidential or sensitive. And the Delaney court recognized that on a sliding scale when you are weighing a criminal Defendant's 6th amendment right, that non-confidential information may be at the bottom end of that scale, although made a point to say that even in that case it may be--protected sensitive information which is not confidential may be subject to greater protection. But the highest level of protection under the shield law is given to confidential source information which was not at stake in the Delaney case yet they took great pains to indicate that that is a distinguishing factor from the circumstances that were before the court in that case. Here the sources are confidential and this factor heavily weighs in favor of quashing the subpoena and not forcing Miss Savage to testify. I point out that the Defense counsel did file a brief, although I think by error this was not filed with our office, but simply served on NBC's counsel, but I did have an opportunity to read it late last night, and they have misconstrued this factor as somehow being dependent on what the information is being used for. And they refer to a quote in the Delaney case about information being used to show corruption in government. But that was related to a different factor entirely. The Delaney court indicated that the first factor to be considered is whether it is confidential, and if it is confidential, that is an important factor weighing against forcing a reporter to testify. In the example of corruption in government, the Delaney court was referring to sensitive information that may not be confidential but nonetheless should be subject to some kind of protection. The second factor the Delaney court recognized what was the interests are that are sought to be protected by the shield law and whether the interest is mooted by something, for example, like the Defendant himself being the source of the information. And there is no showing in this case by the Defense camp who certainly would be aware of that if that were the case, that the Defendant himself is the source of information and that has been the case in other cases considering confidential source information where reporters have gotten information from the Defense or from Defense counsel and the Defendant or his counsel have then tried to get the reporter to confirm what they had told earlier to the reporter. And under those circumstances the Delaney court said that were may be a different kettle of fish entirely, but that is not the case here. The defendants are not arguing that they need Miss Savage to confirm information that they provided to her or something that Mr. Simpson provided to.

The policy of the shield law is clear. It is to promote news gathering and dissemination of information to the public. And in both the Delaney court and a variety of decisions in California and elsewhere, courts have recognized that it is critical to protect a reporter's confidential sources and that that policy, that important protection should only be overcome in the very rare circumstance. So the second factor also militates in favor of a motion to quash the subpoena and against forcing Miss Savage to take the stand. The third factor is the importance of the information to the Defendant. The Delaney court indicated that even once the threshold is met, if the information is so critical to the Defendant's case that he cannot have a fair trial without this information, then that may weigh even more in balance of the criminal Defendant. But that is not the case here either. We don't even think the threshold has been met, let alone something that so materially would affect the Defendant's case that he cannot have a fair trial if this information isn't provided. This is not an instance, as has been true in some other cases involving confidential sources, where the reporter is protecting someone who is an eyewitness to the crime who could provide information that goes directly to guilt or innocence. This is so far removed from that, as Mr. Goldberg indicated in his argument last week, that this is 15 steps down the road from anything that would go directly to Mr. Simpson's guilt or innocence. The final factor the Delaney court indicated the court must weigh is whether there are any alternative sources for the information. And even though they did point out that this should not be rigidly applied, the Delaney court made clear that whereas in this case the information involves the identity of confidential sources, that this requirement should be more vigorously imposed. And in the Delaney case there were no confidential sources involved; it was a reporter's eyewitness observations. And so in that instance they said that this factor does not weigh as heavily as it might in a case that involves confidential sources. This case does involve confidential sources so this factor becomes even more important and there has been no effort whatsoever by the Defense to examine any witness on the stand about whether they were a source of information for Miss Savage to call any witnesses to the stand to try to narrow the scope of people who might have been potential sources. The Defense counsel asked last week that there are limited number of people that this could possibly include and yet they have made no effort to examine any of those people to determine whether they were the possible sources. So of the four factors in this case, all information, we would submit, argue in favor of the motion to quash. And completely distinguishable from the result in Delaney in this case, this is not a reporter's eyewitness observations. Confidential source information is involved here. It is a case where it does not go directly to guilt or innocence, whereas in the Delaney case the reporter was--had been an observer of whether or not the Defendant had given consent to a search and if the consent had not been given, everyone agreed that the search would have been improper and only the search had lead to the defendants other arrest, so there it directly went to the issue of whether the Defendant was properly arrested or not. The final point that I would mention is that the Defendant has submitted in their papers that he is somehow entitled to this information in order to present his defense and that if he is not given this information, that his fair trial rights are interfered with.

And they cite a number of cases where, depending on the circumstances, depending on the importance of the information, there has been some overcoming of a particular asserted privilege. But in both California and other contexts in the reporter's shield law, California courts have consistently held the fact that there is some information that the Defendant cannot get, for whatever reason, either because of a statutory exemption, either because of a California constitutional provision, as is at issue here because of evidence code provisions like 352, like the hearsay provisions that say there is some public policy reason why the Defendant is not entitled to put this evidence on, his fair trial rights are not interfered with and we can certainly cite to the Court innumerable cases involving various privileges, involving various protections, statutory protections and statutory policy decisions where the courts have said the fair trial rights are not implicated simply because the Defendant cannot get what information it is he is seeking. But even to the extent that the Court accepts the Defendant's argument that he needs to be able to present an argument to the jury that the fact that Tracie Savage had a report in September of 1994 about socks which had not yet been tested by DNA testing that they argue this somehow furthers their conspiracy claim, they can make this argument to the jury, present the videotape and make that argument without delving into Miss Savage's sources for the information. They can argue that if they are knowledgeable sources then that furthers their conspiracy theory and the Prosecution can argue that it does not.

THE COURT: When we talk about alternative sources for the same information, can you think of a plausible justification that I would allow a TV news numbers broadcast to be played to the jury as evidence?

MS. SAGER: Well, your Honor, in our personal view--my personal view I don't think that the television broadcast is probative of any issue in this case, so I don't think there is a reason for the Court to present the video to the jury.

THE COURT: Let's try with something more fundamental like hearsay. I mean, how would that ever be overcome?

MS. SAGER: I'm not advocating that position, your Honor, because I don't think that it is probative or that it does overcome all the objections.

THE COURT: No, you offered that as an alternative source.

MS. SAGER: If the Court believes the Defense argument and believes that they have overcome these objections and believes or agrees with them that this is probative or material information, then that is a separate issue entirely from whether the sources of that information are probative or material or relevant. In other words, the argument that they make, whether this somehow furthers some conspiracy, even if you assume everything that they said and assume that this is material and important and that it did come from some high-ranking official somewhere, if you assume all of those things, then that is--the source of the particular individual becomes irrelevant. But I agree with the Court, I don't think it is probative of any issue. I don't think it is material to Mr. Simpson's defense and I think it would simply serve to confuse the jury on a tangential issue and distract the Court's attention by focusing on a whole panoply of witnesses and evidence and issues related to who Miss Savage's sources were for this story, instead of the material issues in this case. And I am not aware of any case where a reporter has been forced to reveal confidential sources about an article which both sides have acknowledged or at least the parties admit was inaccurate as to the point that they say is important. So all the cases where a reporter has been forced to reveal confidential sources, and they are few and far between relative to the number of times that information is sought, but even in those few cases there is no case that I am aware of that even remotely is close to the circumstances in this case. And given the critical--I think the playboy enterprises case uses the word "Paramount interests" that the voters of California expressed in enacting this into the constitution, given that paramount interest, it is a very high standard that must be met. And I don't think that the Defense in this case has satisfied even the threshold, let alone any of the four factors that argue against forcing Miss Savage to take the stand.

THE COURT: All right. Thank you, counsel.

MS. SAGER: Thank you.

THE COURT: Mr. Uelmen.

MR. UELMEN: I think we are in agreement, your Honor, that the guide for the Court's decision in this matter is the Delaney opinion, and I think that opinion sets forth a very clear blueprint for the Court to follow in addressing the issues that are presented. No. 1, Delaney makes quite clear that we are not dealing here with a privilege, that we are dealing here with an immunity from contempt and that that immunity is a qualified immunity, so the existence of the news person's shield law presents no basis to quash the subpoena. In fact, Delaney indicates that the reporter initially bears the burden of proving that the shield law even applies and I don't know that we are to that point yet. Miss Sager assumes that, for example, the source in this case is confidential. We don't know that. We don't know what assurances or promises were given to the source in exchange for the information. It may have been that no such assurances were made and no promise of confidentiality was made to the source. The other thing that Delaney makes quite clear is that the shield law does not protect information that has been disseminated, and in that respect all of what KNBC has already told us about their source points very clearly to a strong possibility that the source came from within the Los Angeles Police Department, and that of course is the important fact that the Defendant is seeking to establish.

The qualified immunity can be overcome by the Defendant's right to a fair trial, and Delaney indicates that all the Defense has to show is a reasonable possibility that information will materially assist the Defense. We believe that in the current juncture of the case, we already have enough information before the court to suggest a reasonable possibility that this information will materially assist the Defense, because we already know, for example, that the broadcast of this information on September 21st coincided with activity within the Los Angeles Police Department that would only be known to sources within the LAPD, that on September 18th a PGM subtype test had been performed, that preliminary results had been obtained and that apparently on September 21st a decision was made to send the socks out for DNA testing. We also know that just nine days before cellmark test results were leaked on the same day that they arrived in a fax to the LAPD SID laboratory. Your Honor is also aware that as soon as your Honor entered an order requiring that all test results be sent directly to the Court, the leaks stopped. As soon as they stopped going through the sieve of the Los Angeles Police Department, the problem of leaking came to an end. We also know, and this is pointed out in Miss Sager's moving papers and I thank her for that, that other news media apparently who were reporting similar stories, although not reporting the false information that KNBC reported, identified law enforcement as their sources for this story. So all of these factors and KNBC's own revelations thus far about their sources point to the Los Angeles Police Department. Now, if in fact this leak came from the Los Angeles Police Department there will be a strong inference to support the Defendant's defense of evidence tampering in this case. First of all, we have within the Los Angeles Police Department sources confidently predicting results of tests that have not even been performed, suggesting that that confidence may have come from knowledge of the source of the blood that was being tested, that would emanate directly from participation in the tampering or planting of that evidence. We also have a very strong motive to predetermine the--the test results. We also have very strong evidence that this investigation lacked objectivity. Time and time again we've been treated to the Prosecutors getting up and asking police witnesses, "You are not part of any conspiracy in this case, are you?" Well, what we have here is very strong evidence of a conspiracy to prejudice the Defendant's rights to fair trial by leaking information during the pretrial stage at the very time that we were engaged in the process of selecting a jury in this case. And what more compelling kind of conspiracy could you have? And finally, if you put this all in the context of the socks, that we are talking here about the leak of information related to the socks in a context, we have already established discrepancies in terms of the collection of that evidence in terms of the reported time that the socks were recovered, discrepancies in the observation of blood in which we were told that numerous criminalists did not see blood on the socks until six weeks after the socks had been selected, evidence of experts that the blood pattern on the socks do not conform to blood splatter, but to the actual compression of blood against the sock, and testimony of experts that the bloodstains contained EDTA, that the sock itself did not contain. Now, all of that weaves an important web of evidence with respect to the integrity of the evidence collecting process and the possibility of tampering with that evidence.

Putting direct evidence that the source of this news report came from the Los Angeles Police Department would not just present a reasonable possibility of materially assisting the Defense, it would indeed go to the heart of the Defense and we believe that that provides a very compelling argument to overcome the assertion of the qualified immunity in this case. With respect to the balancing test that the Delaney court set forth, there are four factors as your Honor is aware. The first relates to the confidentiality or sensitivity of the information. We have yet to hear any evidence that the reporter has the--

THE COURT: Mr. Uelmen, let me ask you this then: Following your argument to its logical conclusion, assuming that I deny the motions to quash the subpoenas for Tracie Savage, she testifies, says I gave some assurance of confidentiality and I now refuse to divulge those sources and I claim immunity from the contempt sanction--

MR. UELMEN: Uh-huh.

THE COURT: --let's assume that I make a further finding that I find the information to be material and necessary to Mr. Simpson's defense and I invoke the contempt sanction, and let's further assume that I grant a temporary stay of that contempt citation so that Miss Sager can run down the street to the Court of Appeal and file her emergency writ. And let's assume that Justice Turner has nothing else to do that day and has the opportunity to spend an enormous amount of time dealing with the issue. Let's assume all of that occurs. Is that really necessary? Because all you are really asking for is the opportunity to present to the jury that at the relevant point in time this misinformation was reported.

MR. UELMEN: Well, we are entitled to do more than that. I think we are entitled to do that. We are certainly entitled to present the--the misinformation that was reported, to present the explanation of the information that has already been publicly disseminated which points to the Los Angeles Police Department. We are entitled to present the director of the LAPD laboratory to describe what was going on in terms of protecting this information and then argue to the jury an inference that there is tampering going on and that this information came from the Los Angeles Police Department. But what Miss Savage's testimony would do for us would be to present direct evidence that it did indeed came from the Los Angeles Police Department, so we no longer have to rely on an inference. Because you can bet that the Prosecution will argue against that inference. They will say that is not a fair inference to draw from this evidence, as we heard last Thursday. It could have been a lucky guess, it could have been that they were relying on some interloper or some flake to present this information to the public, so we will hear that argument. But by cutting through the assertion of qualified immunity, we don't have to rely on an inference. We can present direct evidence that indeed this information did come from the Los Angeles Police Department which is very compelling evidence that goes to the heart of our case.

THE COURT: I think the strongest point that you make inferentially is that once the Court ordered all test results be directed directly to the Court, rather than to the investigating agencies, that all of this nonsense stopped.

MR. UELMEN: I think when we talk about, you know, balancing the public interest in this case, I think that is very important to bear in mind, that we are not talking about the access of public to information that would never otherwise be disclosed. All that we are talking about here is the interest of a court in preserving the right of the Defendant to a fair trial until a jury has been selected. And what was going on here was a very deliberate attempt to subvert that process simply by giving the media advance information at the time when it would prejudice the Defendant's rights. We are not talking about information that would never be disclosed. In fact, this information has now been disclosed in this courtroom in the orderly process of law which is when it is supposed to be disclosed. So all we are talking about here is some news agency somehow getting an edge so that they have an exclusive that can severely prejudice the right of the Defendant to get a fair trial, to get jurors who have not been prejudiced by information that the Court has a right to control, to prevent its dissemination until the time is appropriate. There is one other aspect with respect to this matter with regard to alternative sources, and that is we are informed, although we have never been provided with any of the results, that an internal investigation was conducted by the Los Angeles Police Department, so there was an alternative pursued to attempt to identify the source within the LAPD by an internal investigation. If the results of that investigation have been turned over to the Prosecution or to the Court, they have not been turned over to the Defense, and we think that information may be relevant and helpful to the Court in resolving the issues that are presented by this motion today.

THE COURT: All right. Thank you, counsel. Mr. Goldberg, do you want to address any of the materiality arguments raised?

MR. GOLDBERG: Yes, your Honor. That is the only issue that I did want to address, because as I said, I don't think that the People have a direct interest in the balancing part of this equation. But let me just say this: That in addition to the threshold standard that is articulated in Delaney requiring that the Defense show a reasonable possibility that the information will materially assist his defense, that is at page 808, that there is an independent legal theory to look at this issue of quashing a subpoena and that is that you always are going to have to show, in an instance where a motion to quash has been made, that the witness in question has some material evidence to give, because we don't allow people to run around subpoenaing individuals that do not have any material information to provide in a given case. So independent of the legal theory that is articulated in Delaney, the court would always have to look at the issue of relevancy and materiality of a witness in determining an motion to quash. But the two obviously are very closely interconnected, the standard of relevancy and also the Delaney standard involving materiality. On page 6 of the Defendant's points and authorities they articulate what I think we can characterize as somewhat of a laundry list as to possible relevant purposes or material purposes for this kind of evidence, and I would like to go through them. I have a dressed some of this previously on Thursday and I will try not to repeat what I said to your Honor at that time. On the second full paragraph starting at line 13, they say that: "For persons who are directly engaged in the handling of evidence to leak the results of tests before the testing has been completed creates a strong inference of elicit tampering with the evidence," so that is one theory. It is the tampering theory. I would suggest it is really the only theory that should be under consideration by the court at all. But what I would point out about the way that the Defense articulated this is they themselves have pointed out that the only conceivable way that this could be relevant or material is if someone who was actually involved in the testing, according to the way that they have phrased it, was responsible for the leak, because obviously if we had a situation where it was someone at robbery/homicide who overheard a conversation or someone in the Prosecutor's office, there is no conceivable way we can even articulate a theory under which that leak would be relevant, and I think the Defense acknowledges this. So the issue then becomes, your Honor, if someone who was directly involved in the testing themselves was in fact the individual who was responsible, if there was an individual for the alleged leak, how is that relevant or is that at all relevant for the purposes of this threshold requirement that the Defense must make? And we say that it isn't. On Thursday I articulated two different ways that the Defense could contend that this is relevant. One, they could suggest that the news report motivated the individual that tested the evidence to plant evidence. That is not the theory that is articulated or are articulated and Mr. Uelmen specifically rejected that as a theory. I think this is important to try to force the Defense to be analytically precise in what their theory is, because in doing so then we can determine whether there is any merit to it, so we can slowly begin to chip away at what they are not contending, so that we can focus our attention on what they are contending. For example, on Thursday I pointed out that the evidence that the Defense claims shows that the sock were not present in a photograph that was taken supposedly before Mr. Fung collected them, that that evidence was not relevant to the issue of planting. And Mr. Uelmen conceded that that was true and said that that only was relevant to the issue of whether or not the evidence was properly handled. In other words, that it went more to unintentional mishandling of the evidence, because it was not reasonable to conclude that blank socks themselves were planted and that subsequently evidence was planted on those socks. So I'm just trying to point out to the Court that by trying to force the Defense to articulate precisely and clearly that their theory is, only then can we then be in a position to determine whether or not that theory has sufficient probative strength and whether there is any evidence to support it for the purposes of this threshold requirement.

So what their theory appears to be is that the fact that someone--or if someone who was connected with the testing of evidence leaked evidence regarding the socks, that that demonstrates or tends to demonstrate that evidence was planted on the socks prior to the time of that leak and the reason that we say that that theory does not make sense and is illogical is because one cannot conclude reasonably that an individual that was responsible for testing these socks and knew that the evidence was planted then decided to disclose that knowledge to the press. It is counter-intuitive, as has been argued, and in fact if such a leak did occur, that fact would tend to exonerate the individual, because the logical and reasonable argument would be why on earth, if I in fact planted evidence on the socks, would I then do anything that might have the tendency of giving myself up, such as contacting the media and saying that there are test results that have been performed on these socks? It is not reasonable to believe that this individual would do that. It is not a logical and believable argument and therefore the Defense theory that this logically relates to the issue of planting should be rejected. Now, in addition to those--to that particular theory, the Defense has two additional what I would characterize as throw-away type theories of relevance, perhaps seeing the weakness in the first theory. The second one is they say, I'm quoting from the same page, page 6, that: "This evidence is direct evidence of examiner--of examiner's bias," end quote. Well, the LAPD didn't do any of the DNA testing on this case, so there is no logical argument that this in any way relates to examiner bias and they don't attempt to articulate how it does relate to that issue. And then thirdly, they contend that this is relevant to a rush to judgment, but I would state, your Honor, that the issue of rush to judgment itself is not relevant because the subjective beliefs of the law enforcement officials, the D.A.'s that are involved, the Deputy D.A.'s that are involved in prosecuting this case and the detectives involved--that are involved in prosecuting this case, whether they subjectively believe the Defendant is guilty, and if so, when they formed that belief is not a real issue, it never is in a criminal proceeding. And somehow this has been allowed to have been introduced and interjected in this trial as a spurious non-issue that has no real evidentiary significance, but even if it did, I don't see how this leak in any way relates to the issue of rush to judgment or the non-issue of rush to judgment. So if we go through the Defense contentions and we carefully look at them, it does not appear that there is any theory under which it would be relevant, and clearly there is no evidence to support any of those theories, and apparently they must produce at least some evidence, because according to Delaney any mere speculation itself is not sufficient to meet the threshold requirement. And therefore, your Honor, we contend that the threshold requirement has not been met. Now, in addition to this issue, I would like to address briefly the question of whether or not the report itself is hearsay and I don't want to do that at length because I think the Court has already impliedly indicated through some of its comments that the news report is clearly inadmissible hearsay, although the Court argues to the contrary--Defense argues to the contrary.

THE COURT: Well, let's not get to that issue yet.

MR. GOLDBERG: Okay.

THE COURT: We are not at that point.

MR. GOLDBERG: All right. And finally, your Honor, as to the issue of the internal investigation, the Defense was aware of the internal investigation because it was mentioned on the record, and I believe even requested by Defense counsel at the time that this issue was initially addressed by the Court on September the 22nd and 23rd where they suggested that an internal investigation should be conducted. We do not have the reports from such an investigation that I am aware of, and I do believe that they never did pinpoint what was the source of the leak, so there isn't any information that the People are aware of of any value as a result of that investigation. If the Defense wants that--those materials, then there is a way of getting material and they have to use the procedures that are required under a pitchess type motion to get those kind of internal LAPD documents and they can file that kind of a motion if they want to, but in the absence of the procedures that are required under pitchess, they are not entitled to that kind of information.

THE COURT: All right. Thank you. Miss Sager.

MS. SAGER: Thank you, your Honor.

THE COURT: Briefly.

MS. SAGER: I will be brief. I just want to respond briefly to a couple of points made by Mr. Uelmen. First, with respect to whether a motion to quash is appropriate, he indicates that because it is not a privilege, but an immunity in contempt, that somehow this is not the correct procedure for the Court to adopt. But whereas here you are involving a non-party, contempt is the Court's only remedy, and in that instance the California Supreme Court has said in, for example, in the New York Times versus Superior Court case, that it operates as an absolute privilege if contempt is the only remedy, so it operates in the same effect as a privilege and a motion to quash is appropriate. And in fact that is the way that most courts in California have reached this issue, through a motion to quash a subpoena or a motion to quash a seeking of testimony from a reporter. So I think the Court certainly can use this procedure to rule on these issues and we hope will accept the motion and quash the subpoena.

THE COURT: What about Mr. Uelmen's point that the record is devoid of any evidence, as opposed to proffers of counsel that Miss Savage is in fact a news reporter covered by this particular statute, that she is in fact the person who participated in the reporting that is in question and that she gave some assurance of confidentiality to the sources of that information? Isn't the record completely devoid of that?

MS. SAGER: Well, your Honor, I was about to reach that issue and it certainly has been represented by counsel, and until this point in time it wasn't to my knowledge there was any question about any of those things, and we would have been happy to submit and still would be happy submit a declaration from Miss Savage covering these points indicating, as I think was indicated in our brief, that she is in fact a reporter for KNBC television, she was acting in that capacity when these stories were broadcast and that the information from those stories came from confidential sources, individuals to whom promises of confidentiality were made, and we would be happy to do that. I don't think it is appropriate to then conduct an inquiry into hearsay information in order to have that information before the Court. We can have a declaration here before the end of the day that sets forth that information, if there is any question about it, and to this point there never had been. And at least at hearing last fall when this issue came up, it was represented and counsel all seemed to agree that that was the case and that the issue was whether or not the privilege would be overcome. But we are happy to provide a declaration to the Court containing that information. Now, Mr. Uelmen suggests, I think mistakenly, that the only issue is whether this information materially assists the Defendant, and it is clear in Delaney that is only the threshold, and I agree with Mr. Goldberg. And based on the information, the argument I have previously presented, they have not come close to meeting that threshold test, let alone exceeding it, but even if they did exceed that threshold test, which I think they clearly have not, then the Court looks to the four factors in the balancing equation. It simply doesn't say, okay, the reporter now takes the stand, we have determined that it materially impacts the Defendant's case. And as to the four factors, there has been no showing that those factors militate in favor of forcing Miss Savage to testify. And with all due respect to Mr. Uelmen, most of what he presents is irrelevant to that issue. What other media reported has nothing to do with his Miss Savage's story was about or who her sources are. Whether or not there is other evidence of a conspiracy has nothing to do with this particular information, the sources of information for her news reports, goes to that issue or is material to that issue or significant or substantial as that term is defined.

And the Court in Delaney made clear it has to be something more than speculation, more than a chain of links in a chain of hypothesis or speculation, in addition, to satisfy the materiality and reasonable possibility standards. And that showing hasn't been made. And the Court I think correctly indicates that if what they want to present to the jury is their argument about this being a link in conspiracy or that there was inaccurate news reports, Mr. Uelmen last week said repeatedly to the Court we don't need the sources of information for that, and somehow they have gotten the light or changed their position or flopping in the space of the last couple of days to now say this information is somehow critical when he repeatedly represented to the Court that they didn't think it was critical and was in fact irrelevant to the argument that they wanted to make. But I would end with simply saying that there is no case that I am aware of, certainly none cited by Defendant, where anything closely approximating these circumstances has resulted in a reporter being forced to divulge confidential sources. No case that I am aware of where a reporter has been forced to reveal sources based on a news report that the parties say was inaccurate, certainly not in the context of a criminal case where you have a Defendant presenting an argument that does not go directly to the question of guilt or innocence or is not directly evidence of any kind of conspiracy but is simply a series of innuendoes or speculation or hypothesis. And for all those reasons I think that the privilege has not been overcome in this case and it would be improper for the Court to force Miss Savage to testify and ask her to reveal her confidential sources.

THE COURT: All right. Mr. Uelmen, do you have any brief response?

MR. UELMEN: Very briefly, your Honor. I just want to make three quick points. No. 1, Mr. Goldberg suggests that somehow we must articulate a theory of when the blood was planted on the sock in order to establish the materiality or relevance of showing the source of this--of this leak. The problem of course is the sock was in the exclusive control and custody of the Los Angeles Police Department from June 14th until September 26th when it was sent out for DNA testing, so we don't know at what point the evidence may have been planted. And the problem, the real issue in this entire question is whether we should have confidence in the integrity of the Los Angeles Police Department in maintaining the custody and control of that evidence. And what we are dealing with here goes directly to the heart of that question, how much confidence should we have in the integrity of those who were entrusted with the care and the control of this evidence? There are a number of inferences that arise. A possible inference of planting of evidence, a possible inference of examiner bias, a possible inference of a conspiracy to prejudice the Defendant's right to a fair trial, but until we know who the source of this information was within the Los Angeles Police Department, we can't pursue where that takes us. Once we identify that source, then we know where we can go to clarify, to provide the information that both this Court and the jury are entitled to in terms of resolving this very difficult issue. Secondly, Mr. Goldberg makes the point that there was an internal investigation that apparently came up dry, but the only way we can see that is to file a pitchess motion. We would respond, first of all, if an investigation came up dry within the LAPD, that goes directly to your Honor's resolution of the question of whether there is an alternative source other than ordering the reporter to reveal the source to find out who that source was, and the fact that the LAPD has internally investigated and been unable to identify the source would I think be very useful to the Court in addressing that issue and we believe the Court has power to simply order the production of that report for purposes of this hearing in the exercise of its inherent power.

THE COURT: I don't think I can do that, given the very strict language of the evidence code after pitchess that indicates this is the exclusive manner in which these types of records are to be sought.

MR. UELMEN: But a pitchess motion requires us to make a specific showing that information about a specific officer is relevant to our case. Here we have an investigation that did not apparently implicate any officer and what its relevance is is simply the fact that they made that effort and they were unable to determine what the source was, so we are not really using it for a pitchess purpose of attacking the credibility of a police officer, but simply showing that the--the investigation had a negative result and that is what is relevant to this hearing.

THE COURT: Uh-huh.

MR. UELMEN: Finally, I want to make clear, your Honor, that what we would propose to do is to call Miss Savage, in the event that she invokes the limited immunity, and establishes that the immunity applies, before your Honor applies the balancing test, to determine whether to order her to testify. We would like an opportunity to call Michelle Kestler, the director of the laboratory, to further our showing with respect to the relevance and materiality of identifying this source.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: Yes. That would be outside the presence of the jury as well.

THE COURT: I take it that then you are declining Miss Sager's offer to submit a declaration by Miss Savage regarding the foundational issues?

MR. UELMEN: Yes, your Honor. We would like Miss Savage to testify.

THE COURT: Miss Sager, do you want to address that one specific issue?

MS. SAGER: Yes, your Honor. In the context of a motion to quash at least, I know of no authority that suggests that a reporter needs to personally take the stand as opposed to submitting by declaration form information which is merely foundational. And in this case, and as in other cases that I am aware of, the Court has accepted a declaration from the individual simply establishing foundational facts, and until the Defense counsel has information which would tend to cast any kind of doubt on any of those foundational facts, and given that the subpoena in question was accepted by KNBC's counsel at the Defense counsel's request, I don't think that there is any question about her employment, about the context in which this information was gathered. And certainly I am aware of no information which would suggest anything to cast into doubt her representation that the information came from sources who had been promised confidentiality. So absent all of those factors and in light of what other courts in California have adopted as the direct procedure to determine these matters on a motion to quash, it is simply the same as any other discovery motion where the court can take evidence and make a ruling based on evidence before the court. The information does not need to be in testimonial form, certainly can be in declaratory form, and the only reason to not do it that way would be if there is something that would tend to cast doubt on information in that declaration. And absent an offer of proof by Defense counsel suggesting that information exists, then I think a declaration would be appropriate and to force Miss Savage to take the stand would not be an appropriate exercise of the Court's discretion.

THE COURT: All right. Thank you, counsel. As to the motion to quash the subpoena for Tracie Savage, the Court will deny that motion for the following reasons: The offer that has been made, the preliminary offer that has been made by the Defense is sufficient for the Court to go forward to at least establish foundationally that she is a news reporter and that her sources as to this broadcast, this specific broadcast, were to be held in a confidential manner. I think that has to be established on the record and subject to cross-examination, so to that extent the motion to quash is denied and I will grant the Defense the opportunity to call and question Miss Savage. As to the those issue in fact after being asked will she reveal the sources of those--that information, and if she invokes the shield law and indicates that even if the Court finds her in contempt that she will not reveal those sources, then the Court will go into the other issues suggested by Delaney. And if that occurs, this is a rather complex issue that I will not probably be able to determine today. All right. Madam reporter, what is your status?

REPORTER OLSON: I'm fine.

THE COURT: All right. Miss Sager, do you want to confer with your client before we proceed?

MS. SAGER: If the Court would grant us a few minutes, I would appreciate it.

THE COURT: All right. We will take ten.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Where did Miss Sager go? There you are. Ready to proceed?

MS. SAGER: Yes, your Honor. I would ask for the Court's indulgence in permitting me to interpose objections on behalf of Miss Savage, even though she is not a party, given the nature of the inquiry, that she is not a lawyer, to the extent that any questions might stray into forbidden areas or go beyond the Court's foundational--permissive foundational inquiries, I would like the Court's permission to interpose objections.

THE COURT: All right. What I will allow you to do, Miss Sager, is stand to the side of the witness stand, and if you wish to confer with your client, I will allow you to do so.

MS. SAGER: Thank you, your Honor.

THE COURT: All right. Mr. Uelmen.

MR. UELMEN: The Defense will call Tracie Savage.

THE COURT: All right. Miss Savage.

Tracie Savage, (402) called as a witness by the Defendant, pursuant to evidence section 402, 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.

MS. SAVAGE: I do.

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

MS. SAVAGE: My name is Tracie Savage and it is spelled T-R-A-C-I-E S-A-V-A-G-E.

THE COURT: Mr. Uelmen.

MR. UELMEN: Thank you, your Honor.

DIRECT EXAMINATION BY MR. UELMEN

MR. UELMEN: Miss Savage, what is your occupation?

MS. SAVAGE: I'm a television news reporter.

MR. UELMEN: And by whom are you employed?

MS. SAVAGE: I work for KNBC TV here in Los Angeles.

MR. UELMEN: Were you employed by KNBC in that capacity in September of 1994?

MS. SAVAGE: Yes, I was.

MR. UELMEN: On September 21, 1994, did you broadcast a news report related to the case of People versus OJ Simpson?

MS. SAVAGE: Yes, I did.

MR. UELMEN: And in that news report did you report information with respect to some socks that had been allegedly recovered from Mr. Simpson's bedroom?

MS. SAVAGE: That's correct.

MR. UELMEN: All right. And what did you report about those socks?

MS. SAVAGE: I reported that the socks had been discovered at the Defendant's home and that there was blood on those socks and that the socks had been tested, the blood on those socks had been tested and the results showed the blood belonged to Nicole Brown Simpson.

MR. UELMEN: And did you report any information with respect to the nature of the tests that had been performed?

MS. SAVAGE: Yes, I did.

MR. UELMEN: And what was that?

MS. SAVAGE: I reported that a DNA test had been conducted.

MR. UELMEN: And that the results of that DNA test had been reported?

MS. SAVAGE: That is correct.

MR. UELMEN: Now, I take it that in making that report you were reporting what you believed were accurate information?

MS. SAVAGE: I reported accurately the information that was given to me from multiple sources.

MR. UELMEN: All right. How many sources?

MS. SAVAGE: I'm afraid I cannot answer that question. That is protected by the shield law.

MR. UELMEN: But you are asserting that what you reported was an accurate presentation of what the sources had told you?

MS. SAVAGE: That is correct.

MR. UELMEN: And were these sources knowledgeable about the investigation of the case of People versus OJ Simpson?

MR. GOLDBERG: I object. That calls for conclusion.

THE COURT: Sustained. I think what you can do is ask if she in fact reported that these were knowledgeable sources and then ask her what her definition is of "Knowledgeable."

MR. UELMEN: Thank you, your Honor.

MR. UELMEN: Did you report any information about the knowledge of the sources whom you were quoting in this report?

MS. SAVAGE: Yes, I did report that they were knowledgeable sources.

MR. UELMEN: And what did you mean by "Knowledgeable"?

MS. SAVAGE: They were sources, and this has been stated already on the record, close to the investigation.

MR. UELMEN: So these sources then were the--the source of your information that sock had been recovered from Mr. Simpson's bedroom?

MR. GOLDBERG: Calls for a conclusion and opinion.

THE COURT: Sustained. Rephrase the question.

MR. UELMEN: When you reported that socks had been recovered from Mr. Simpson's bedroom, you were relying then on these sources who were close to the investigation?

MS. SAVAGE: I reported accurately the information that was given to me from multiple sources, reliable sources.

MR. UELMEN: And it was these sources who informed you that socks had been recovered from the bedroom?

MS. SAVAGE: That was part of the information that the sources had given to me.

MR. UELMEN: And it was these sources who told you that the socks had blood on them?

MS. SAVAGE: That is correct.

MR. UELMEN: And it was these sources who told you that the blood on the socks had been tested?

MS. SAVAGE: That is correct.

MR. UELMEN: And it was these sources who told you that the tests had revealed a match to the blood of Nicole Brown Simpson?

MS. SAVAGE: That is correct.

MR. UELMEN: And it was these sources who told you that the tests that were conducted were DNA tests?

MS. SAVAGE: That is correct.

MR. UELMEN: Now, did you make any promise to these sources that their identity would be kept confidential?

MS. SAVAGE: I gave my word as a journalist that I would not reveal their identities.

MR. UELMEN: And this is true with respect to each of the sources that you spoke to?

MS. SAVAGE: I gave my word to my sources that I would never reveal their identities.

MR. UELMEN: And you gave that word explicitly? You told them "I will not reveal that you were the source of this information"?

MS. SAVAGE: Yes, that's true.

MR. UELMEN: Now, were these sources persons who have given you information in the past?

MS. SAVAGE: That is true.

MR. UELMEN: And the information they had given you in the past was also related to the case of People versus OJ Simpson?

MR. GOLDBERG: Not--well--

MS. SAGER: Your Honor, if I can interpose an objection here, I know this is somewhat unusual, but this I think goes well beyond what the Court indicated what Miss Savage would be asked to testify about, was merely the foundation that she is a reporter and the information given to her during the course of new gathering activity and she made promises of confidentiality. With all due respect, Mr. Uelmen is not conducting the inquiry of Miss Savage which he is entitled to conduct.

THE COURT: Sustained.

MR. UELMEN: Your Honor, we would maintain that this is information that has already been disseminated in the letter to the Court from KNBC that the reports were based on.

THE COURT: Counsel, I agree with you that I'm already aware that that is a representation that has been made. The issue is, is to establish the foundation for invoking the shield law and then I have to make a determination going beyond that once we get to that point. The question is premature.

MR. UELMEN: Now, could you tell us what you mean, Miss Savage, when you indicate that your sources were close to the investigation?

MS. SAGER: Same objection, your Honor. We are beyond now the scope and I think the foundation has already been laid. There is no need to go beyond what Miss Savage has already testified to.

THE COURT: Overruled. How do you define generally knowledgeable and close to the investigation?

MS. SAVAGE: Your Honor, I'm afraid by identifying how I determine what knowledgeable is I may in effect reveal the identities of my source. Knowledgeable, I think in all due respect, I think the word speaks for itself.

THE COURT: Mr. Uelmen.

MR. UELMEN: Well, Miss Savage, did you assume that the information given by your sources was accurate because they were close to the investigation?

MR. GOLDBERG: Well, that is not relevant.

THE COURT: We are beyond the scope of the inquiry at this point.

MR. UELMEN: Did your sources include any officers or agents of the Los Angeles Police Department?

MS. SAVAGE: I respectfully decline to answer that question. I now assert the shield law.

MS. SAGER: Again, your Honor, he is now asking the questions beyond foundational questions.

THE COURT: No. The foundational question--one of the foundational questions were if you were asked what the sources were would you invoke the shield? That is where we are. That has been now accomplished. Mr. Uelmen.

MR. UELMEN: All right.

MR. UELMEN: And at this time then you decline to indicate any of the sources on whom you relied for the report of September 21st?

MS. SAVAGE: That is true at this time.

MR. UELMEN: Nothing further, your Honor.

THE COURT: All right. Thank you, Mr. Uelmen. Mr. Goldberg, do you have any questions?

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

MR. GOLDBERG: May I just have one moment, your Honor?

THE COURT: Certainly.

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

MR. GOLDBERG: Your Honor, I don't have any questions.

THE COURT: All right. Miss Savage, thank you very much. All right. The Court will make a finding that a preliminary foundation has been established. The Court will take under submission the Delaney issues.

MR. UELMEN: Your Honor, we would like to call Michelle Kestler with respect to those issues.

THE COURT: Is she available?

MR. NEUFELD: She was under subpoena.

MR. UELMEN: I believe she is on call.

MR. GOLDBERG: Well, the last we heard Michelle Kestler had gone this morning to a doctor's appointment for a neck injury that she received earlier.

THE COURT: All right. Let's do this. As far as Michelle Kestler is concerned, as I indicated to counsel in chambers this morning, one of our other jurors has a medical appointment tomorrow at 4:00 that we have to conclude at four o'clock.

MR. COCHRAN: Today?

THE COURT: Tomorrow. Tomorrow. So why don't we--since tomorrow is a six o'clock day, let's schedule Michelle Kestler for four o'clock tomorrow afternoon.

MR. GOLDBERG: I would also say about Michelle Kestler, your Honor, perhaps to short-circuit this, the Defendant might make a specific offer of proof as to what she can supposedly testify to some this issue, because my understanding, and counsel also had the opportunity to interview her at length, is that she doesn't have any personal knowledge as to the circumstances surrounding this fax and when specifically the leak occurred and that she only knows these things based on than what she has heard from knowledge--

THE COURT: She may also have knowledge about any internal investigation that may have been conducted. She may have participated in that investigation she may have been interviewed and there are a lot of things that she can tell us about.

MR. GOLDBERG: Of course the position of the police department, as we have been advised previously, is that all of information is official information under 1040 and that the Defense must use the provisions of 1040 in order to try to get that information.

THE COURT: Well, I'm sure we will see the city attorney tomorrow afternoon.

MR. NEUFELD: Your Honor, just--

THE COURT: All right. Counsel, what we will do then now, we will shift back to Mr. MacDonell. We will bring the jurors down. As I indicated to Mr. Cochran and to Mr. Darden, the Court would like to personally inquire of the juror who fell ill last week just do assure myself the juror can continue.

MR. NEUFELD: Two scheduling matters, your Honor.

MR. SHAPIRO: Your Honor, we do have one other witness who will be brief on this issue.

THE COURT: Who is that?

MR. SHAPIRO: Joseph Bosco.

THE COURT: As to the shield issue?

MR. SHAPIRO: Yes, sir.

THE COURT: All right. What is your offer as to Mr. Bosco?

MR. SHAPIRO: Thank you.

THE COURT: Good morning, Mr. Shapiro.

MR. SHAPIRO: Good morning, your Honor. Thank you. Your Honor, Mr. Bosco will offer testimony that he also was a recipient of similar information, that he is a professional journalist, that he has been assigned a permanent seat by your Honor in the courtroom to cover this case.

THE COURT: That is a misnomer. It is a regular seat. There is nothing permanent about it.

MR. SHAPIRO: Permanent to this date.

THE COURT: Yes.

MR. SHAPIRO: He has regularly attended all the courtroom sessions.

THE COURT: He has.

MR. SHAPIRO: And he has published an article that reported the same information that reporter Savage has just testified to and that he will confirm that he is the recipient of information from a source that told him that DNA test results were in on the socks that were recovered in the bedroom.

THE COURT: When?

MR. SHAPIRO: In September--about the same date, September 21st, and that that information came from a member of the Los Angeles Police Department who is known to him as a badged member of the police department and a person who is active in this investigation.

THE COURT: All right. Do you have--this is published information?

MR. SHAPIRO: Yes.

THE COURT: And what is the publication?

MR. SHAPIRO: Penthouse magazine.

THE COURT: All right. What issue?

MR. SHAPIRO: The July issue.

THE COURT: All right. So you want to call Mr. Bosco regarding that?

MR. SHAPIRO: Yes.

THE COURT: All right. Mr. Bosco is present in the courtroom?

MR. SHAPIRO: Yes, he is.

THE COURT: Good morning, sir.

MR. SHAPIRO: He is under subpoena.

MR. BOSCO: Good morning, sir.

THE COURT: Do you have counsel, Mr. Bosco?

MR. BOSCO: Your Honor, I've been through this down in New Orleans and I have counsel down there. I have been through this process. I could call my attorney in New Orleans who has handled this thing on another case for me for the past year and a half. He may holler at me but I think I know the issue well enough to take the stand. It might be nice that I call him. Maybe my mother will do so watching the television, I don't know, or my wife, I don't know, but whatever your wish is, sir.

THE COURT: No. The wish is on your behalf, sir. If you wish to have counsel to confer with before you are called as a witness, given the nature of the issue, I will give you leave to do so. If you feel no need to confer with counsel, we can proceed. It is up to you, sir.

MR. BOSCO: I'm--could I just have a few minutes to call him?

THE COURT: Absolutely. I'm not--I mean, I will--Mr. Bosco, let's do this.

MR. BOSCO: Yes, sir.

THE COURT: Why don't you report back to the Court when we come back after lunch at one o'clock. I will give you plenty of time to locate your counsel in New Orleans.

MR. BOSCO: Yes, sir.

THE COURT: Confer with him by phone. If you feel it is necessary to have local counsel, we will accommodate you. All right. So why don't you take care of that when we recess. All right?

MR. BOSCO: Yes, sir.

MR. SHAPIRO: Thank you, your Honor.

THE COURT: All right.

MS. LEWIS: Your Honor, there is also the issue of the Gretchen Stockdale tape. When was the Court willing to hear that?

THE COURT: Well, I think I have my plate full with this tissue issue, don't you agree?

MS. LEWIS: This should be a no brainer, your Honor, frankly, on the tape.

THE COURT: Well--

MS. LEWIS: Excuse the colloquialism.

THE COURT: Well, you will make a much better Judge than I ever will. All right. We need to take a recess to bring the jury down. All right. We will take ten to bring the jury down.

(Recess.)

(Pages 39238 through 39241 volume 197a transcribed and sealed under separate cover.)

THE COURT: Back on the record in the Simpson matter. All parties are again present. The record should reflect that over the recess the Court had the opportunity to meet with the juror who fell ill last week, in the presence of counsel for both sides, and both the Court and counsel, I believe, have assured ourselves that that juror is able and willing to proceed with jury service, continue jury service on this matter, and with just minor adjustment with ongoing medical treatment for that condition, so the Court is satisfied with that inquiry. All right. Mr. Neufeld, you indicated there was something preliminary you wanted to bring up before we start with Mr. MacDonell?

MR. NEUFELD: Yes. Good morning, your Honor.

THE COURT: Good morning, sir.

MR. NEUFELD: Actually, before I bring up the preliminary matter, just a quick scheduling issue. It was suggested that perhaps we would hear from Michelle Kestler at 4:00 P.M. tomorrow afternoon.

THE COURT: Correct.

MR. NEUFELD: Just so we are clear, it was the Defense intention that after we finish with Professor MacDonell that we would play the tape of Peratis and that only takes about ten or fifteen minutes, that we would hope to resolve the Savage/kestler hearing testimony in advance of hearing Kestler's trial testimony, but Kestler is going to be the next trial witness after Tracie Savage, in front of the jury, that is. This just throws, you know, a little bit of a monkey wrench into the works.

THE COURT: Well, here is the problem. Despite what Miss Lewis might think, I don't consider this to be a no brainer issue. There are very sophisticated issues, sub-issues, and it involves reviewing very carefully the record regarding materiality. This is not a decision that I'm going to make sitting here without any thought, contemplation and going over the issues.

MR. DARDEN: I'm sorry, your Honor, if I could indicate this. Miss Lewis was referring to the Gretchen Stockdale issue; not the Michelle Kestler issue.

THE COURT: That is not the way I understood her comment.

MR. NEUFELD: All I ask--

THE COURT: And she is entitled to her opinion. If she thinks it is a no brainer, like I said, she is much brighter than I am. Go ahead.

MR. NEUFELD: All I ask then, since we are proceeding internally, that premise--

THE COURT: The problem is, counsel, what I'm saying is I don't want to be pushed into making a decision on this faster than I have to.

MR. NEUFELD: I think what you are saying makes perfect sense. All I'm saying is we would like to get back sometime this afternoon. If we have some small gap, maybe we can move Kestler up to the early part of tomorrow afternoon, and if need be, or something. I'm just saying this we may have a little difficulty in filling that void with other witnesses who are prepared at this moment. That is all I'm saying. And I can report back to the Court this afternoon with that information.

THE COURT: I understand that. And if we have to have a gap here and there, that is something that we will have to deal with. I understand Miss Kestler--my clerk gave me a note that Miss Kestler apparently has a personal funeral obligation tomorrow afternoon, so that may be a problem as well. I don't know.

MR. NEUFELD: Maybe we could take her earlier then so we wouldn't interfere with that obligation, if the Court so desires.

THE COURT: If time permits we will.

MR. NEUFELD: Okay.

THE COURT: Why don't we finish Professor MacDonell first.

MR. NEUFELD: With respect to Professor MacDonell, your Honor, there is one brief point that I think that is to be resolved before we resume the direct examination. You may recall that when we--the Prosecution made a motion to exclude Professor MacDonell's glove drying experiment and at that point in time, your Honor, when we had discussion and argument about that motion, and you ruled against the Prosecution, you made some remark about, well, perhaps--perhaps the buffalo pictures might be displayed and then you said forget it. I was concerned about that remark because obviously the Court was not expressing an opinion one way or the other; it is just something that came to your mind. We then became concerned that perhaps the Prosecution might think, and I believe mistakenly, your Honor, because I don't believe there is any legal basis for it, to use those photographs that they have chosen either, because they chose not to for strategic reasons or chose not to because they believed they would be inadmissible. In any event, they didn't try and introduce those photographs as part of their direct case. They may mistakenly believe that they could not introduce these photographs to cross-examine Herbert MacDonell. Umm, I'm making this application now, your Honor, because I wanted to be very, very clear to the Court that it is our position that if the Court will allow the Prosecution in a sense to intimidate the Defense into not going forward with this compelling evidence, because of the prejudicial nature of those photographs or those videotapes, we will refrain from introducing the glove drying experiment and that is why it is essential that we know, before we complete the direct examination, what the Court's ruling on that will be. Now, the Defense's right to put on a defense, if you will--

THE COURT: Well, let me see if I understand. You want to put on this glove drying experiment, which I have indicated that I'm going to allow you to do?

MR. NEUFELD: That's correct.

THE COURT: All right. But you are afraid that if during the course of Mr. MacDonell's cross-examination the Prosecution has photographs or videotapes of Mr. Simpson wearing gloves in, say, for example, winter conditions in buffalo, you are worried that this will have some devastating affect upon your ability to present a defense?

MR. NEUFELD: Your Honor, no. It is--

THE COURT: Because when I made that offhand comment, which I should learn not to do, obviously the only reason I mention that is that in establishing the materiality of your glove drying experiment, obviously those experiments were conducted upon the new gloves, the Aris Lights, if I'm not mistaken, that the Aris corporation was kind enough to provide to the Court. The knowledge issue being that obviously for cross-examination purposes I could do this cross-examination in ten questions, one of which would be did you use new gloves, did you take into consideration shrinkage that occurs over a period of time, did you take into consideration the tanning method, the silicone impregnation of leather to prevent moisture problems, that sort of thing, and then show a picture of the Defendant wearing gloves in winter. I mean, that is pretty simple, wouldn't you say?

MR. NEUFELD: Well, yes and no, and I will tell you why it is not, your Honor.

THE COURT: Tell me why it is not.

MR. NEUFELD: You may recall when I was examining Robin Cotton and I started asking her some questions about swatches heating up in the back of the truck in Brentwood, and you wisely cut me off and said what is a New York lawyer doing asking questions to a Maryland scientist about weather conditions in June in Brentwood. Well, that was a good point on your part, but equally true, your Honor, I don't know how much people in Los Angeles know, because of the luxury of living in this climate, about wearing gloves in the cold northeast. And I can tell you, your Honor, and anybody else who wears gloves in the northeast will tell you that we wear gloves out in the snow, we wear gloves out in the rain, and they don't shrink. We do that all the time. And we bring the gloves back in our houses and they don't shrink. And we wear the same gloves for years and years and years when we are adults, and the only reason we replace them is because we lose them or misplace them, not because they shrink. The only testimony you heard in fact on the shrinkage issue came from Richard Ruben who said specifically that in his opinion, if you did dump them in a lot of liquid, okay, and then depending upon how quickly they dried and those circumstances, that could cause some shrinkage. But remember we are not talking about some shrinkage here. We are talking about, by the Prosecution's witnesses, own testimony, ten to fifteen percent shrinkage, and there has been no testimony at all from any Prosecution witness during their case that weather can account for a ten to fifteen percent shrinkage, if any at all. Freezing and thawing, freezing and thawing, doesn't do it. When I go out in the winter, when I lived in Wisconsin and it was thirty below zero--

THE COURT: All right.

MR. NEUFELD: --those gloves are freezing and you came inside they thaw out. They do not shrink. Gloves don't do that.

THE COURT: Mr. Neufeld, isn't this sort of premature given the fact that they are not obligated in cross-examination and impeachment of your witness to divulge what they have? And I have indicated to them that before they present anything similar to what we just talked about, that we will have a motion at side bar to determine whether or not that is going to be used.

MR. NEUFELD: No. I think, your Honor, it is not a question of them showing particular photographs right now. I'm not asking for that. What I'm saying is that this entire line of inquiry would be impermissible, showing any photographs or any videotapes, because there is absolutely no foundation that was laid during their case at all that the weather conditions can account for a ten to fifteen percent shrinkage. In fact, the only theory proffered by the Prosecution during their case was that gloves smeared with a large quantity of blood could account for a ten to fifteen percent shrinkage. That is the only theory they advanced. And it is because of Mr. Simpson's 6th amendment right to confront that theory, to put on a defense, that we engaged Herbert MacDonell to conduct that experiment after the Prosecution rested, just for that narrow purpose. They have a right to do their own shrinkage experiment. I don't have a problem with that. We have opened the door to that. But there is no question in my mind, your Honor, that photographs showing Mr. Simpson wearing gloves at a buffalo bills game, at a Cincinnati Bengal's game in the winter, there is nothing at all to cross-examine or impeach this witness' testimony. If they wanted to do experiments on blood, that would fine, but merely showing that he wears gloves in the outdoors in the winter doesn't do it. There is no evidence that suggests that wearing gloves in the winter will cause a ten to fifteen percent shrinkage. I know of no such person who would ever testify to something like that. And so what the Prosecution is really trying to do here is simply prejudice the jury, not with probative evidence to explain shrinkage, but rather with shots of Mr. Simpson wearing brown leather gloves.

THE COURT: Okay. Hold on. Is there a response from the People?

MS. CLARK: Well, your Honor, I don't know what kind of gloves Mr. Neufeld wears. They must be very special gloves. I think everybody in the country has written to us about what happens when you wear gloves in the winter. I lived in New York. I know what happens to gloves when they get wet and get dry. Mine shrunk. I don't know--I would like to buy the kind that Mr. Neufeld has. They are great. As far as I know, my experience and I think that of millions of Americans, that gloves, when exposed to moisture, do shrink.

THE COURT: That is not the issue. The issue is do you intend to present evidence of Mr. Simpson wearing gloves in the wintertime?

MS. CLARK: Is the Court requiring us to tell them that now?

THE COURT: No, I'm not, but you could save me a lot of trouble if you said, no, we are not going to do it.

MS. CLARK: I can't promise you that, your Honor. I really can't. I think it is--you know, all kidding aside, it is obviously germane. They undertook to do these experiments on brand new gloves under totally different conditions. That is very grist for the mill on cross-examination. We didn't tell them to conduct the experiment in this manner. They have set themselves up for a fall by doing it in the way that they do. You pay your money, you take your chances, and that is all we are saying.

THE COURT: So I take it your position is that since it is cross-examination at this point it is not something that you need to divulge in discovery?

MS. CLARK: That's correct.

THE COURT: All right. But we have seen--when this glove issue came up in the commercial news media we saw several sportscasts, replays of Mr. Simpson in wintertime--

MS. CLARK: That's true.

THE COURT: --wearing gloves.

MS. CLARK: That's true.

THE COURT: All right. Can you establish a foundation that those gloves are the same gloves?

MS. CLARK: Yes, I can.

THE COURT: Interesting.

MR. NEUFELD: Your Honor--

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

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

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Mr. Neufeld.

MR. NEUFELD: Your Honor, the only additional point I wish to make is I'm making a specific proffer so the Court will know at least the parameters of Professor MacDonell's testimony on this issue. I laid out most of what he would say in my moving papers with the accompanying photographs which the Court saw. I just wanted to be very, very clear to the Court, the professor took the other new pair of gloves that were provided by the Isotoner corporation, basically identical to the new gloves that Mr. Darden used in the second demonstration in the courtroom, and that he took them and smeared a large amount of blood on both gloves, as much as they would absorb in fact, rubbed it in, that he then tried to replicate the climatic conditions at Bundy and Rockingham for that evening by relying on U.S. weather service reports regarding temperature, dew points, humidity, the like, that he used a special humidity chamber in fact designed by the Corning glass company to do that.

And that as a result of that he simply learned two things: One, that the approximate drying time is about four hours. And that two, when he compared the gloves after they were dried to their size before they were moistened with the blood, that there was no observable shrinkage. And that would be the extent of his testimony. And so it is our position since that that is all he will testify to, that they are precluded from cross-examining him with any photographs or videotapes showing Mr. Simpson wearing brown leather gloves.

THE COURT: All right. Counsel, I think that if you bring in evidence regarding this experiment as to how these gloves did not shrink under your experiment, the Prosecution is entitled to cross-examine on factors that were not taken into consideration during the course of the Defense experiment, such as the age of the gloves, other weather exposure, particular materials that were involved in this--with this particular glove, the nature of the--how the leather was manufactured, what kind of water repellent treatments were placed on it, whether or not any of these things were taken into consideration. I think that is fair game for cross-examination.

MR. NEUFELD: The only little point I would add, your Honor, is that I don't doubt that they have the right to cross-examine him on all those points and ask him whether he took those into account. By the way, the only little remark I would make is you may recall that Richard Ruben testified that these gloves were made with naked leather, that was his word, so this is no preservatives. There are no--there is no chemicals to resist moisture or anything else. So the fact that it is naked leather is not going to change over a period of time.

THE COURT: Well, there is some chemical constituency in the tanning process, but go ahead.

MR. NEUFELD: We are not disputing, your Honor, that the gloves in question are older gloves and they are not new gloves. The jury has seen the gloves and they know they are older gloves. That entire cross-examination that you just described will certainly be permissible.

THE COURT: And would only take about ten minutes.

MR. NEUFELD: But the ends of that cross-examination is qualitatively and quantitatively different from enabling the Prosecution to show photographs of Mr. Simpson wearing brown leather gloves in the winter. We are not disputing that, you know, that gloves are worn in the winter, that Mr. Simpson has worn gloves in the winter. You know, three/fifths probably of the population have worn gloves in the winter. That is not a very probative point at this time. However, showing him wearing brown leather gloves is very prejudicial and I don't see, your Honor, quite frankly, the relevance of showing him wearing gloves on a cold winter day in buffalo has to do with the rest of the cross-examination which is perfectly permissible; did you take into consideration that the gloves were old? Did you take into consideration that they may be out in the weather?

THE COURT: Well, when I discussed this issue with counsel previously, I indicated that before any videos or photos were presented during the cross-examination that the Court would have to see them first and make a ruling at that time. So the objection at this point is premature. Given the parameters of what I have indicated, I think you understand the Court's ruling.

MR. NEUFELD: One second, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Then I would just like the record to reflect that without the ruling that I believe we are entitled to at this time, then the Defense will not introduce that glove drying experiment through this witness.

THE COURT: All right. Well, that is a tactical decision that you are making based upon not knowing the results of a ruling that has yet to be presented--an issue that has yet to be presented to the Court and that the Prosecution not being obligated to present that to you since it is impeachment, this is a tactical decision that you are making on behalf of your client, so I just want the record to be clear.

MR. NEUFELD: I understand that. I just believe under the 6th amendment we have a right to a ruling beforehand.

THE COURT: Okay. All right. Okay. Let's have the jury, please.

MS. LEWIS: Your Honor, I wanted to mention that the comment I made earlier was with regard to the Gretchen Stockdale motion.

THE COURT: Counsel, counsel, let's put that to rest.

MS. LEWIS: I'm sorry for the ambiguity.

THE COURT: I'm not even thinking about that right now, counsel. 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. The record should reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: First, I'm happy to see all of you back here today and you all seem to be fit, ready to proceed. Secondly, my apologies to you for keeping you waiting so long, but we had a number of interesting legal issues that I had to deal with before we were able to continue with Mr. MacDonell's testimony. All right. Professor, would you resume the witness stand, please.

Herbert MacDonell, having been previously sworn, resumed the stand and testified further as follows:

THE COURT: All right. The record should reflect that Professor Herbert MacDonell is again on the witness stand undergoing direct examination by Mr. Neufeld. Good morning, professor.

PROF. MACDONELL: Good morning.

THE COURT: Sir, you are reminded that you are still under oath. And Mr. Neufeld, you may continue.

MR. NEUFELD: Thank you, your Honor. Good morning, ladies and gentlemen.

THE JURY: Good morning.

DIRECT EXAMINATION (RESUMED) BY MR. NEUFELD

MR. NEUFELD: Professor MacDonell, in this case you mentioned, I believe last week, that you were retained by the Defense, did you not?

PROF. MACDONELL: Yes, I did.

MR. NEUFELD: You are of course testifying at this trial; is that right?

PROF. MACDONELL: Yes, obviously.

MR. NEUFELD: All right. Now, could you please give us an estimate, over the last two years, approximately how many cases have you been retained either by the Prosecution or the Defense?

PROF. MACDONELL: Probably somewhere between 50 and 75, more likely the 75.

MR. NEUFELD: And do you have an estimate about the approximate percentage which would be cases where you were retained by the Prosecution and an estimate to the percentage of cases where you were retained by the Defense?

PROF. MACDONELL: I would say about fifty percent for the Defense and perhaps forty percent by the Prosecution and ten percent might be private or other investigations. It could be civil rather than criminal.

MR. NEUFELD: Now, of all those cases that you just described, the 75 to a hundred cases in which you were retained to examine and analyze evidence, approximately how many of those cases did you actually come to court and testify at a trial?

PROF. MACDONELL: About ten percent. That might be high. I do not testify that often in court.

MR. NEUFELD: Sir, is one of the reasons that you testify so rarely, compared to the number of times that you are retained, because your findings did not help the side that retained you?

MS. CLARK: Objection, speculation.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Okay. Do you know the reasons why you testify so infrequently, comparatively, to the number of times where you are actually retained by one side or another to examine and analyze evidence?

MS. CLARK: Objection. Again that calls for speculation.

THE COURT: Overruled. The answer is yes?

PROF. MACDONELL: Yes.

MR. NEUFELD: Could you please tell us what the reasons are?

MS. CLARK: Speculation, hearsay.

THE COURT: Overruled.

PROF. MACDONELL: The reason is that when I'm asked to investigate a case and examine physical evidence or go to a crime scene, there are times when there is absolutely no evidence that can be useful in determining what occurred. The evidence may be too old, it may just not exist, and so if there is nothing that I can conclude that is of any value to either side, naturally I cannot write a report, I cannot give any information. On occasion when I investigate a case for the Defense and the findings would not be helpful, they do not call me to testify.

MR. NEUFELD: Now, what I would like to do is resume the discussion we were having on Thursday concerning the ankle stains on sock 13-a. I would like to show you, Professor MacDonell, Defendant's exhibit 1278, 1277 and 1276 which you had looked at last week. Do you recall that when we left off last week you were explaining your observations regarding the ankle stain on sock 13-a?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: Now, based on your observations, professor, and expertise in the area of bloodstain interpretation, what conclusions did you reach concerning the stains on the ankle of sock 13-a?

PROF. MACDONELL: Well, I concluded from exhibit 1276 that the overall stain area, which is--surrounds the cut-out portion, was the result of a transfer of blood to that area and not projected. It is a very large stain and blood does not spatter in that large an area. It might be splash, but it doesn't spatter. That would take a very large volume of blood. But this is transferred to the surface of the fiber on the outside. And looking at 1277, the photograph--photomicrograph taken by Dr. Lee and myself, shows the high spots of the weave, the upper portion, which are brushed with--which I believe has been identified as blood.

MR. NEUFELD: Professor MacDonell, by the way, while you are giving this explanation, if you would be so kind if you can hold up the photographs to the jury so that they can at least see what it is that you are describing. Actually, why don't I use the--

THE COURT: Do you want to put it on the elmo?

MR. NEUFELD: It might be easier on the elmo.

(Brief pause.)

MR. NEUFELD: Do you want me to start with that one?

PROF. MACDONELL: Up to you.

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

THE COURT: All right. This is 1276, if I'm not mistaken.

MR. NEUFELD: That's correct.

THE COURT: Okay.

MR. NEUFELD: Can you see that well, professor?

PROF. MACDONELL: Yes, I can.

MR. NEUFELD: Okay. So what were you saying you learned from your observations--what conclusions did you make, beginning with this photograph, and then we will move on from there?

PROF. MACDONELL: I concluded that the stain which surrounds the cut-out portion which is much lighter in appearance in almost a yellowish/red coloration on this screen, was the result of a transfer of a liquid to the surface more as a direct compression rather than a side or lateral movement, which we call a swipe pattern, because of the peripheral responding of blood to the top of the fibers which is shown in I think it is 1277 more accurately.

MR. NEUFELD: And now, referring you to Defendant's 1277, based on your observations and expertise in the field, what conclusions did you reach about the--that stain on the outside perimeter of the area that had been cut out?

PROF. MACDONELL: Well, as I stated, the area to the left circled in blue is a reflection of a red glistening substance which has previously been identified as blood. And on the right side in the lower right there is a dark circle showing the area which is not glistening insofar as having a red coloration. That is just the black fiber which under high-intensity illumination appears to be white in this picture, but that is the void areas and the stains are on the surface of the fibers and they are not distorted, they are very sharp and very clear. That is one of the things that I considered in the swipe type pattern or transfer pattern that occurs.

MR. NEUFELD: Now, again based on your observations of the socks and based on your expertise in this area, sir, what additional conclusions did you make regarding the stains seen in the sock area?

PROF. MACDONELL: Well, the other red substance that I saw was not on the surface of this fabric. Maybe I could demonstrate better--I'm looking at the outside of what is called the left side of the sock. Whether it is the right sock or a left sock cannot be determined, but it is the left side in the ankle area.

MR. NEUFELD: I'm sorry, one second, professor. Could you, your Honor, just inquire with the jurors as to whether or not they can all see what Professor MacDonell is doing?

THE COURT: I don't believe they can.

PROF. MACDONELL: All right. Now, I'm referring to the outside of the left side of a sock. Whether it was the left foot or the right foot again is not clear. This area has been cut out. It is stained and cut out. I continued the examination when the socks were lying flat on a table surface in the laboratory and observed additional red balls of blood on the inside of the side opposite this cut-out portion, and that is what the greater enlargement that has been introduced, probably 1278--1278, showing one of the those bonded dried liquid red materials.

MR. NEUFELD: And there are any additional conclusions you have made regarding the relation of these stains?

PROF. MACDONELL: Well, yes. That is what I saw. I hadn't gotten to the conclusion.

MR. NEUFELD: I'm sorry.

PROF. MACDONELL: The conclusion would be, obviously, that if the stain directly opposite the cut-out portion on the inside is in any way related to the stain itself, then the stain occurred when this material soaked through and stained the inside of the side opposite. I would conclude that is what happened.

MR. NEUFELD: Your Honor, with the Court's permission at this time, I would like to pass around 1278, I believe, which I did not pass around to the jurors last week.

THE COURT: Certainly. If you will hand that to juror no. 1, please.

MR. NEUFELD: May I give to it juror no. 1?

THE COURT: Juror no. 1.

(The exhibit was passed amongst the jury.)

THE COURT: All right. Mr. Neufeld, would you collect 1278 from Deputy Smith, please. The record should reflect that each of the jurors has now had the opportunity to view exhibit 1278. Mr. Neufeld.

MR. NEUFELD: Thank you, your Honor.

MR. NEUFELD: Professor MacDonell, what is it about the way that red ball is configured and bonded to the actual fiber that you find to be significant in that photomicrograph?

PROF. MACDONELL: As I am holding this so the label on the back is up to describe that, that little red area simply shows that it is a round, glistening, reddish, ball-shaped configuration which I interpret as being bonded to the fiber to its lower right and that fiber is woven into the overall thread, so that that spot of red fluid dried when it was wet, initially dried on a fiber, bonded; therefore it is part of a liquid transfer and not caused by flaking or powdering or something that may have broken off when a cutting occurred on the area above it.

MR. NEUFELD: And sir, I hate to burden you one more time, but it has been suggested that when you use your own socks it may not have been completely clear for everybody. I will take one of Mr. Cochran's socks and have it next in order, your Honor, which is--

THE COURT: 1278, I believe. 1279.

(Deft's 1279 for id = sock)

MR. NEUFELD: And could you, for demonstrative purposes, sir, simply describe to the jury where you saw stains simply, using this sock as an example? Hold it up, please.

PROF. MACDONELL: Much better sock than mine. This area right here, (Indicating), in the ankle area--

MR. NEUFELD: I'm sorry. One second also. With the Court's permission, may we have the witness step down?

THE COURT: Why don't we have him step down right to the rail here.

MR. NEUFELD: Yeah.

PROF. MACDONELL: (Witness complies.)

THE COURT: And please keep your voice up, professor.

PROF. MACDONELL: The general area of the outside on what I am calling the left side of the sock for my purposes of identification, this would be the right side, again regardless of which foot it happens to be on. On the left side, the overall inch-by-inch-and-a-half stain is seen on the surface and when it is cut out this is on the inside of the side opposite, that would be the inside here, (Indicating). If you turned it inside out, this is where there is transferred liquid that is dried. And I interpret that as being part of the staining action here, (Indicating), at the time this was wet and went through, without a foot inside, obviously.

MS. CLARK: There will be an objection to that, your Honor.

THE COURT: Overruled.

MR. NEUFELD: Do we need to--

THE COURT: Mr. Neufeld, I'm sorry. 1279. What about 1279?

MR. NEUFELD: 1279. I would ask permission actually at some point to substitute it if I could, since it is generic item.

THE COURT: Yes.

MS. CLARK: The objection is that the latter opinion stated by MacDonell called for speculation and there is no foundation.

THE COURT: Overruled.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Now, professor, let me ask you a hypothetical. Assume that a doctor examined Mr. Simpson head to foot on June 15th and there were no cuts, scratches or scrapes observed on Mr. Simpson's ankles. Would what you observed on the sock when you examined it, both with the naked eye and with the microscope, be consistent with a bloodstain passing through one side of the sock to the other when the sock is not on the foot and is instead lying flat on a surface?

PROF. MACDONELL: Yes, it would be consistent with that.

MS. CLARK: Same objection, your Honor. That is speculation; no foundation.

THE COURT: Overruled.

MR. NEUFELD: And why is that, sir?

PROF. MACDONELL: Well, as I stated, when I had the sock on this board, there is something like a foot inside the sock, if there is a tremendous hole right through the ankle, there is no way that anything can go from one side of the sock to the other simply by transferring from inside the left or outside portion through to the inside of the opposite side of the right side.

MS. CLARK: Same objection, your Honor. That is an incomplete hypothetical.

THE COURT: Overruled.

MR. NEUFELD: Now, sir, over the last forty years that you have been working with blood, have you investigated the drying time of blood on different surfaces?

PROF. MACDONELL: Yes.

MR. NEUFELD: How is it that you are familiar with the various drying times of bloodstains under different conditions?

MS. CLARK: Objection, your Honor. Ask to approach.

THE COURT: With the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the side bar. Miss Clark.

MS. CLARK: Sounds to me like counsel is going right into the area the Court ruled inadmissible.

THE COURT: What are you going into here?

MR. NEUFELD: Well, you ruled that the experiments that he did on June 6th were inadmissible because they don't meet the Bonin criteria. What I have to do is not rely on that experiment at all, but rather elicit through proper foundation that he has forty years of experience in all of the institutes that he runs doing drying times to all different types of fabrics and he, through forty years of doing these drying time tests with the students and in his institutes, he has the expertise to give an opinion about the drying time of blood on this sock. That is exactly the same thing, if you will, you recalled when Deedrick testified, when you wouldn't allow him to testify about what he learned in the report, but he was allowed to rely on whatever independent information he had prior to--

THE COURT: Keep your voice down.

MR. NEUFELD: I'm sorry. On other independent information he had as an expert in the field prior to the time of producing the report in this case. What we want to do with this witness is absolutely no different than that. He is not going to mention the experiment of June 6th. He is simply going to rely on this forty years' experience. And I think, your Honor, is--frankly, I will just ask those questions, and if she wants to object as to lack of foundation, I think you will decide that there is more than ample foundation. I'm not going to ask any of the key questions until I lay the proper foundation and you can rule at that time.

MS. CLARK: Your Honor, this is so--I don't know where counsel gets these ideas. First of all, it bears no relation to what Mr. Deedrick was testifying to. This is even worse than the sock drying experiment, what counsel proposes to do here. In the sock drying experiment there was at least some effort, albeit insufficient, wholly inadequate, to duplicate the conditions, but the fact that this witness has observed other times when other fabrics dried under other conditions that have no bearing on this case is so irrelevant and preposterous that it is not relevant to the testimony or to the evidence in this case. What counsel is now proposing to do is get in is expertise to say what he couldn't do with an experiment that at least attempted to duplicate the conditions. And it is not the same as Mr. Deedrick because in Mr. Deedrick's case his testimony was excluded with respect to the report because of a discovery violation, not because it was irrelevant, which was the problem with the sock drying experiment. His testimony then was permitted to go as far as his expertise went and stopped at a point when he did the independent investigation for which there was a discovery violation. We are talking apples and watermelons here; not even apples and oranges. The specious reasoning of counsel would permit this witness to testify to almost anything that he has ever seen in his life and somehow try and relate it to the very material involved in this case.

THE COURT: All right.

MS. CLARK: Furthermore, your Honor, if counsel is permitted to question the witness and wait for me to object, then counsel by his questioning intends to get in front of the jury what he cannot do through the sock experiment and it is entirely improper in light of the Court's obviously correct ruling concerning the experiment.

THE COURT: All right. I think your objection at this point, Miss Clark, is premature. I haven't heard what the foundation is. But Mr. Neufeld, given the Court's previous ruling regarding drying times, I'm very skeptical.

MS. CLARK: Your Honor, the problem is that if he continues to question in front of the jury, can we do it outside the presence then?

THE COURT: Hold on. No.

MR. NEUFELD: Just also bear in mind when I didn't even ask about the experiment on June 6th I said it was more in the experiment of an actual expert and it was not the actual conditions it was something that you did at that moment, and I think you correctly ruled it was inadmissible.

THE COURT: I will listen to the foundation.

MR. NEUFELD: Okay.

THE COURT: I'm skeptical.

MS. CLARK: How could he possibly lay a foundation saying he used these kind of materials when he didn't do it in the experiment?

THE COURT: The object is premature because the question hasn't been asked yet. I indicated I'm very skeptical that the foundation is going to be there.

(The following proceedings were held in open court:)

THE COURT: Thank you, counsel. Proceed.

MR. NEUFELD: Thank you.

MR. NEUFELD: Professor MacDonell, would you please tell the ladies and gentlemen of the jury how is it that you are familiar with the drying times of bloodstains under various conditions?

PROF. MACDONELL: The institutes that I began directing in 1973, of which there have now been 43, have an experiment where we do drying times of blood in fabric, on wood, glass, various surfaces. This is done in small volumes and in large volumes and also with many fabrics. This is a routine experiment that has been done for many years. The amount of time required is such that for the larger pools of blood, we can't do that in a single day, so that was deleted from the fourth publication. We still do, in experiments 12 and 13, some of the blood that is spread out to see how rapidly it will dry, put on clothing, particularly fabrics that are difficult, like arnel and nylon combinations that appear to be stained on one side, in fact they were stained on the other, so we are aware that there are very dangerous areas in looking at a sample of material and drying to identify which side was stained, without doing the actual experiment, see we do this routinely. I have done it on I don't know how many cases. I would say perhaps a hundred, 200, 300 cases where fabrics are involved we will usually test the actual fabric to determine transfer characteristics and drying time, and that is how I am familiar with it.

MR. NEUFELD: And sir, based on those demonstrations and experiments that were conducted routinely in the institutes by your students that you just described, does the volume of blood on an object affect the drying time?

PROF. MACDONELL: Oh, certainly.

MR. NEUFELD: And how is that that if affects the drying time?

PROF. MACDONELL: Well, the more blood there is, the longer it is going to take to dry, given the same surface area. A pool of blood that is contained, for example, in a bowl, is going to take much longer than the same area, but a very thin film.

MR. NEUFELD: And sir, did you estimate the approximate volume of blood that originally existed on that stain on the ankle in 13-a, sock 13-a?

PROF. MACDONELL: It is the same as 42-a?

MR. NEUFELD: Yes.

PROF. MACDONELL: Yes. I estimated the volume to be approximately one drop. It is not soaked through on the periphery. Those are the pictures we have seen, 1276 I believe or 1277, excuse me, that shows the blood on the surface, at least on the periphery. The center has been cut out and it would have been slightly heavier, so that stain could be caused on that material, I would estimate with a--just one drop, 50 microliters, perhaps slightly more or slightly less, but I would estimate one drop would be adequate.

MS. CLARK: Objection, no foundation.

THE COURT: Overruled.

MR. NEUFELD: Now, you said that the drying time is affected by the volume of blood. Is it also affected by the type of surface that the blood is drying on?

PROF. MACDONELL: Yes, definitely.

MR. NEUFELD: For instance, does it make a difference whether it is drying on fabric as opposed to a glass table?

PROF. MACDONELL: Yes. The--the fabric would act as a wick, so to speak, up to a certain point, and would allow the blood to dry more rapidly, but if it is a thick fabric, it would act as a reservoir and it would contain the blood and reduce the surface area, so it would dry slower. Blood spreads out on a surface, just a table top or anything, if it is a thin film will dry very rapidly. If it is a small spatter, a small two-millimeter to one-millimeter diameter spot, it will dry very quickly. Within a matter of a minute you can just wipe across it and it will be dry. It depends a great deal on the surface.

MR. NEUFELD: Sir, even within the--that subcategory of surfaces which we will call textiles or fabrics, will there be variation in the drying time between different types of fabrics?

PROF. MACDONELL: Yes. We conducted experiments of that type to present a paper to the American Academy of Forensic Science some years ago dealing with the effect of enzymes in detergents. Several years ago there was tide x and all of these little bugs chewing up the stains.

MS. CLARK: Objection, your Honor.

THE COURT: Sustained.

MR. NEUFELD: What I'm asking, sir, is not so much the chemicals that the item might have been treated with, but is there difference in drying times, for instance, between synthetics and natural fibers?

PROF. MACDONELL: Yes. We used those in that paper.

MR. NEUFELD: And all things being equal, given the other factors, what is the difference in drying between, let's say, a synthetic, which the sock is in this case, and cotton?

PROF. MACDONELL: If you have a synthetic fiber, it is non-porous. It does not itself soak in a fluid. Notwithstanding, the fluid will soak in by capillary action or just a wetting between the individual fibers, but a natural fiber, such as cotton, ramey, hemp, jute, some of these thing are porous. Wool, for example, is porous. Animal fibers are porous, but not to the extent of the natural fibers, so therein you have soaking, not into the weave, but also into the individual fibers, and again that--that retards the evaporation or the drying time, above and beyond synthetics where the blood is exposed, although in between some of the fibers which do not absorb blood.

MR. NEUFELD: If I was to try and distill that at least for myself, professor, would that mean that all other things being equal that blood will dry more rapidly on a synthetic fiber than on a cotton fiber?

PROF. MACDONELL: Well, of the same type of weave and thickness, yes.

MR. NEUFELD: And sir, is there a difference in drying time for blood if it is dabbed or smeared on a surface versus blood that has simply fallen onto a surface or dripped onto a surface?

PROF. MACDONELL: Well, if the dripping blood actually penetrates the fiber and goes down into the fiber, it wets it, in other words, that will dry much more slowly than if you just have it on the surface where there is--air can actually get underneath it through the fiber.

MR. NEUFELD: I believe you testified, sir, that in your opinion in this case the bloodstain found on ankle 13 is a result of a dabbing of the surface, as opposed to blood simply dripping or spattering onto the surface?

MS. CLARK: Objection, misstates the testimony.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Okay.

MR. NEUFELD: Is it your testimony, sir, in this case, based on your observations of the ankle stain, that the blood did not spatter onto the ankle area of sock 13-a?

PROF. MACDONELL: Yes, it is.

MR. NEUFELD: Is it your testimony, sir, that the blood got there by being--by being the result of some kind of compression, some object brought to bear on the sock, and that object had blood on it?

PROF. MACDONELL: Yes, it is.

MS. CLARK: Objection, that is leading.

THE COURT: Overruled.

MR. NEUFELD: Now, sir, in addition to those factors which you have already described, is there a difference between the time needed to air dry a bloodstain versus when the stain is on material that is actually in contact with a living body, such as a sock pressed up against an ankle?

PROF. MACDONELL: Yes.

MR. NEUFELD: And could you explain to the jury what the difference is in drying time?

MS. CLARK: Objection. No foundation, your Honor.

THE COURT: Sustained.

MR. NEUFELD: Could you explain to the jury what affect it has on drying time for the item of clothing which has the blood to be in contact with the living human body, as opposed to when it is air dried?

MS. CLARK: Objection, no foundation.

THE COURT: Sustained.

MR. NEUFELD: Sir, have you compared in the past, prior to your involvement in this case, the different times in which an identical bloodstain will dry if it is air dried as opposed to being in contact with a human body--with material that is in contact with a human body?

MS. CLARK: Objection. That is irrelevant as phrased.

THE COURT: Overruled.

MS. CLARK: Vague, "In contact."

THE COURT: Overruled.

PROF. MACDONELL: Yes. Over the course of many years I have conducted experiments where fabric was actually placed on a person's arm or leg and blood was impregnated into that material. The drying time and the soaking through characteristics were the object of doing that experiment. I can cite at least one case where we did that using identical twins so the blood groups would be identical.

MR. NEUFELD: And sir--

MS. CLARK: Objection, irrelevant. Motion to strike.

THE COURT: Overruled.

MR. NEUFELD: --based on your expertise, does blood dry faster or slower when it is on material that is in contact with a person's skin when the person is living, as opposed to when it is simply air drying and not in contact?

MS. CLARK: Objection, insufficient foundation.

THE COURT: Sustained. Clothing is not all uniformly worn on a body, counsel.

MR. NEUFELD: Your Honor, may we have a side bar?

THE COURT: That is as direct as I can give you, counsel.

MR. NEUFELD: All things being--based on your experiments--I'm sorry. Based on your studies and experiments, even prior to your involvement in this case, all other variables being equal, is there a difference between the drying time of blood on a fabric that is simply in the air drying as opposed to blood on a fabric which is in contact with a living body?

MS. CLARK: Objection, no foundation.

THE COURT: Sustained.

MR. NEUFELD: Have you done experiments to answer that particular question, prior to your involvement in this case?

MS. CLARK: Asked and answered.

THE COURT: Overruled.

PROF. MACDONELL: Yes, I have.

MR. NEUFELD: Could you please describe what experiments you've done of that nature where you would actually compare the drying time where all the other variables are identical except for the one variable being the fabric is against the skin of a living person, as opposed to the fabric not being against the skin of a living person?

MS. CLARK: Objection, irrelevant.

THE COURT: Overruled.

PROF. MACDONELL: Yes. We have done experiments, as I stated, to determine both the drying time on a person and drying time of that fabric in air, and because living people are warmer than the environment, with the exception of some of the weather lately, you will have blood drying on the garment much more rapidly.

MS. CLARK: Objection, no foundation.

THE COURT: Overruled. I mean sustained. The answer is stricken. The jury is to completely disregard that last answer. Proceed.

MR. NEUFELD: Professor MacDonell--well--

THE COURT: Professor, have you done any of these drying experiments on socks prior to this case in synthetic socks?

PROF. MACDONELL: Not on a garment in a sock configuration, no.

THE COURT: Thank you.

MR. NEUFELD: Have you done it on synthetics that are very shear and light like the socks?

PROF. MACDONELL: Yes.

MR. NEUFELD: And have those experiments done on shear synthetics that are light and shear like the socks been done where one part of the fabric is in contact with the body picking up the body heat and the other fabric is simply air drying?

PROF. MACDONELL: Yes.

MR. NEUFELD: And based upon those experiments, sir, what is your expert opinion as to which will dry faster?

MS. CLARK: Objection, no foundation.

THE COURT: Sustained.

MR. NEUFELD: All right. Professor MacDonell, I--

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

MR. NEUFELD: Your Honor, the Prosecution has entered into a stipulation with regard to the next exhibit which shall be--

THE COURT: 1281.

MR. NEUFELD: 1281.

(Deft's 1280 for id = document)

MR. NEUFELD: --which is the official records of the U.S. weather service, national weather service at Los Angeles airport for June 12th and June 13th.

THE COURT: Thank you.

MR. NEUFELD: Do you have a copy of these, sir?

PROF. MACDONELL: Yes, I do.

(Brief pause.)

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

THE COURT: All right. Counsel. The number should be correctly 1280.

MR. NEUFELD: 1280?

THE COURT: 1280.

MR. NEUFELD: Have you had a chance to examine the national weather service statistics for Los Angeles airport for the evening of June 12th and the morning of June 13th, 1994?

PROF. MACDONELL: Yes, I have.

MR. NEUFELD: Okay. And first of all, can you tell us, sir, what was the temperature range between approximately ten o'clock in the evening on June 12th, 1994, and 9:30 the morning of June 13th, the approximate--June 13th?

MS. CLARK: Well, objection. The report speaks for itself.

THE COURT: Overruled.

PROF. MACDONELL: The temperature range was between 63 degrees Fahrenheit and 66 degrees Fahrenheit, according to the document I have.

MR. NEUFELD: And during that same period of time, sir, when you said the temperature range was between 63 and 66 degrees, does it also state what the dew point was?

PROF. MACDONELL: Yes, it does.

MR. NEUFELD: And during that same period of time, sir, is there any indication from the official national weather service printout here that there was any dew on the ground on the night of June 12th into the early morning hours of June 13th?

PROF. MACDONELL: Well, it indicates that the temperature--the dew point range was below the temperature range all the times, so there would have been no dew formation.

MR. NEUFELD: And how much below?

MS. CLARK: Objection, objection to that. No foundation, your Honor.

THE COURT: Sustained. The answer is stricken.

MR. NEUFELD: Could you please say, sir, what was the closest the dew point ever got to the temperature during that twelve-hour period?

THE COURT: I'm sorry, counsel.

MS. CLARK: Objection, your Honor.

THE COURT: Wait, wait, wait, wait. You are having this witness testify to atmospheric conditions during the course of the--

MR. NEUFELD: No. All I'm having this witness do, your Honor--

THE COURT: This is beyond what he is qualified to testify to at this point, so the objection is sustained.

MR. NEUFELD: Your Honor, I believe that once the Court takes judicial notice--

THE COURT: The objection is sustained, counsel.

MR. NEUFELD: May we have a side bar, your Honor?

THE COURT: No, you may not. Proceed.

MR. NEUFELD: All right.

MR. NEUFELD: You said that the temperature between those hours of approximately ten o'clock on the evening of the 12th and 9:00, 9:30 the next day, were between 63 and 66 degrees; is that correct?

PROF. MACDONELL: That is correct.

MR. NEUFELD: What is body temperature, surface body temperature, sir?

PROF. MACDONELL: It is slightly--

MS. CLARK: Objection, no foundation.

THE COURT: Sustained. Surface body temperature?

MR. NEUFELD: Of a human being.

THE COURT: Sustained.

MR. NEUFELD: Are you familiar, through your studies, sir, on what the surface body temperature of a person is?

PROF. MACDONELL: Only that it is below the temperature of blood.

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

THE COURT: Overruled.

MR. NEUFELD: I'm sorry, could you please answer the question?

PROF. MACDONELL: It is below the temperature of blood which is 100 degrees. Body temperature is 98.6. I think the surface temperature is several degrees below that, depending upon the environment. If it is a very cold day, your skin will be cooler than on a hot day. I think that is common sense.

MR. NEUFELD: To your knowledge, sir, and based on your experience, will the body temperature of a living personal be greater than 63 degrees Fahrenheit?

PROF. MACDONELL: It is unless freezing.

MS. CLARK: Objection, no foundation.

THE COURT: Sustained. Excuse me, professor. If there is an objection being made, don't answer.

PROF. MACDONELL: I'm sorry.

THE COURT: Proceed.

MR. NEUFELD: By the way, while you have those certified records in front of you, sir, are you aware of the fact that when Dr. Lakshmanan of the medical examiner's office testified he said that on June 13th at about 1:46 P.M. the temperature was 64 degrees, page 32052 of the transcript, was Dr. Lakshmanan correct or incorrect when he gave that testimony?

MS. CLARK: Well, objection, your Honor. That is irrelevant and it is also not--

THE COURT: Sustained. Dr. Lakshmanan was not at the crime scene, counsel.

MR. NEUFELD: Dr. Lakshmanan, as to what the actual temperature was.

THE COURT: He wasn't there, counsel.

MR. NEUFELD: Your Honor, may we at this point recess for lunch?

THE COURT: Certainly.

MR. NEUFELD: And may we also have a side bar?

THE COURT: Yes.

MR. NEUFELD: Thank you.

THE COURT: Ladies and gentlemen, we are going to take our recess for the lunch hour. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations--don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. Stay healthy. See you at one o'clock.

(The jury was excused and the following proceedings were held at the bench:)

THE COURT: We are over at the side bar. Mr. Neufeld, here is my problem. If I find a sock drying experiment to be irrelevant because of a failure to adequately duplicate conditions, I think his expertise is two more steps removed from relevance, so that is the problem we are having here, one. And two, foundationally what I was trying to tell you is that has he done any experiment regarding socks worn by individuals? If he hasn't, then the fact that he has done experiments on clothing and blood drying is interesting, but it is not relevant to this issue because the issue was the sock presumably being worn by somebody and it is also being covered by something, I assume, at some point in time as well, not only the shoe, but being covered by whatever pant leg this person was wearing. So the hint I gave to you was, you know, clothing, different articles of clothing are worn on the bodies in different manners and you needed to establish that foundation. But I think you are far afield at this point.

MR. NEUFELD: Well, let me ask you this: I think--

THE COURT: Also, as far as the objections to this guy telling us what the dew point is, you didn't qualify him for any of this.

MR. NEUFELD: I don't think I have to qualify him for the dew point. Let me just tell you what--

THE COURT: Do you know what is a dew point is?

MR. NEUFELD: You mean what is a dew point? I can ask him if he knows what a dew point is and he will be able to explain it scientifically as a criminalist. I understand. I will explain and I will be glad to do that.

MS. CLARK: I would be interested to hear the foundation he is going to do on that one because I think somebody who is an expert in one of those atmospheric conditions, one of those guys from Griffith Observatory, would be required, because he is trying to extrapolate that there was no dew. He can't do that.

MR. NEUFELD: The fact of the matter is that the dew point was seven to eight degrees below the temperature the entire night and therefore there is no dew.

THE COURT: Counsel, don't forget we are talking the dew point at lax, so let's not fight over something that is of mild interest.

MR. NEUFELD: Lax frankly is closer to the water. The precipitation and moisture in the area is a greater factor than when you go inland.

MS. CLARK: I don't think the interpretation of low dew based on the lower due point than temperature--

THE COURT: I am just sharing with you some of my observations.

MR. NEUFELD: Let me just tell you the second thing. I think I am permitted to elicit, because I think it is obvious, that because surface body temperature is going to always be warmer than 63, 64, 65, 66 degrees--

THE COURT: We don't know that. We don't know that. How do we know that?

MR. NEUFELD: Because he can testify--he testified what a person's blood temperature is in the body, testified to what a person's body temperature is.

THE COURT: Have you ever heard of frostbite where you get frostbite? Surface temperature is not always over 63 degrees. I agree with you, it is not a preposterous.

MR. NEUFELD: No, no, no. The surface temperature on somebody who is outside in Los Angeles on June 12th, okay, is going to be--he can give an opinion.

THE COURT: Peter, Peter, here is the problem. You don't have the foundation to ask that question with this guy. You can ask that of a medical expert, Dr. Huizenga, if you wanted to, somebody like that, but this guy, unless he has got some other qualifications, is not going to be able to tell us that. I'm not saying it is not interesting. I'm not saying it is not relevant. I'm saying this guy can't tell you that.

MS. CLARK: And it doesn't get you very far if he did. That is another issue.

THE COURT: Who knows what it is coming in here for.

MR. NEUFELD: So at this point in time, without further foundation, you are not going to allow him to testify to an estimate of drying time?

THE COURT: Yes.

MR. COCHRAN: Bosco, are we going to do him at one o'clock?

THE COURT: Off the record.

(Discussion held off the record.)

(At 12:01 P.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; MONDAY, JULY 31, 1995 1:10 P.M.

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: All right. Back on the record in the Simpson matter. All parties are again present. And we need to make inquiry of Mr. Bosco. Mr. Shapiro.

MR. SHAPIRO: Yes, your Honor. I had a chance to talk to him this morning. He has chosen to have counsel. Mr. Mirell has just arrived to advise him. I have furnished Mr. Mirell with a copy of the article, and I have no objection certainly to Mr. Bosco and Mr. Mirell taking as much time as they need to prepare this matter.

THE COURT: All right. Mr. Mirell, we have a 4:00 o'clock end of the court day today. So whatever--you've very familiar with these issues I'm sure. So--

MR. MIRELL: Yes. May I?

THE COURT: Good afternoon, sir. Yes.

MR. MIRELL: Good afternoon, your Honor.

THE COURT: I feel like I'm being tag-teamed today.

MR. MIRELL: Well, I'm not here representing the ACLU, your Honor. I'm here representing Mr. Bosco, and I was called on this matter 20 minutes ago. And I apologize for not watching this morning's proceedings. I was engaged across the street in the federal court. So I really am very much at sea in terms of what has already occurred. I don't want to be duplicative. I don't want to waste the Court's time. Perhaps if we could arrange to take this matter up tomorrow morning, I would be at least more prepared at that point to address whatever the issues are.

THE COURT: All right. Why don't you converse with Mr. Shapiro, who is the person interested in calling your client, talk to Mr. Bosco and then let me know what your status is.

MR. MIRELL: At the end of the day today or--

THE COURT: Yeah.

MR. MIRELL: Okay. But--all right. And I'll contact the clerk about that?

THE COURT: Yes. All right. Thank you. All right. Mr. Cochran, good afternoon, sir.

MR. COCHRAN: Good afternoon, your Honor. I would like, if I could, to put something on the record at this point as I indicated to the Court earlier. The Court is aware that last week, the Court was kind enough to issue a subpoena for Miss Laura Hart McKinney in North Carolina, and I had the pleasure of journeying to North Carolina on Friday morning where I was able to read transcripts and listen to a very small portion of a tape. There are some 11 or 12 hours of tapes, your Honor, regarding Mark Fuhrman. The Judge allowed us to listen to a very small portion of those tapes back in chambers. The thing that I wanted to call to your Honor's attention and solicit your Honor's assistance on, the Court and Judge Wood in Winston-Salem, North Carolina failed to give full faith and credit to the subpoena that your Honor had issued on some basis that he felt this wasn't material. I argued strenuously, your Honor, that after having heard the portion of the tape that I heard--and I can represent to the Court it was Detective Fuhrman's voice and I can tell the Court that these tapes and these transcripts were from a period April of 1985 to July of 1994. We didn't hear all of those tapes, but we heard just enough to make sure it was his voice. I also called this lady, Miss Laura Hart McKinney, to the stand, and she indicated this was Detective Fuhrman's voice, these were her tapes, she had met him in Westwood in 1985, he became like a technical consultant for her. And, Judge, it is chilling, these tapes and what was said by this man in view of what he said here in court. He uses the term "Dumb Nigger," "Niggers" and "Mexicans." He uses it throughout and this is not in any story line when he does that. He's talking about in giving her background about the LAPD and that sort of thing. I would think the LAPD would be very, very concerned. The title of the screenplay of course that she comes up with your Honor is men against women, maw, this organization that we know--this clandestine organization that we know existed within the LAPD. But having gone through and taken some notes, I wanted to at least make a record and I want to solicit your Honor's assistance in something. In addition to using racial epitaphs and slurs against blacks and Mexicans and women, Detective Fuhrman talks about his philosophy, disagrees with the LAPD philosophy. He shoots to kill, not to stop. He talks about arresting people simply because they're "Niggers." He talks, your Honor, if you can imagine, about arresting a person, stopping a black person in Westwood and you ask him where he lives and he says 22nd and Westwood--and the Court knows generally where that area is--and then he takes him into custody because he didn't belong in Westwood, that when he wants to fabricate something to arrest someone, he takes the person's license, tears the license up and then says this person has no identification. It is absolutely frightening. He goes and talks about--and this is--you got to understand the time frame. This is near the letter to Kathleen Bell. There was a big concern at the time about feeding people in Ethiopia, and his response is he didn't care at all about feeding a bunch of "Dumb Niggers" in Ethiopia, on and on and on it goes about chokeholds and "Niggers" and on and on. It's absolutely frightening.

And the lawyers for this lady were likewise taken aback. Everybody was as this Court would. It is absolutely material because I don't have to remind this Court that Mr. Bailey in his examination asked Detective Fuhrman had he ever used that word in the last 10 years within the time frame and was he as sure about not having used that word as he was about finding the Rockingham glove. You will recall that. So it's very, very relevant. It's very, very material. 95 percent or more of what is on the tapes and in the transcripts have to do with Detective Fuhrman's background, not any characters or not any situation like that. He even talks, if you can imagine, about a lieutenant, a female lieutenant that we heard briefly about who comes out to investigate maw in West Los Angeles. I think the Court appreciates the possible relevance of that. We just ran out of time. This Judge listened to this and said he heard enough. Everybody in that courtroom assumed along with us that this was certainly material, this was certainly relevant, that a man's life was at stake.

In fact, near the end of the hearing, your Honor, the lawyers for this lady said things like, "We just want Mr. Cochran to make sure she's put up in a nice hotel and perhaps she can bring her husband with her." Everybody seemed to see the relevance except his honorable Court there in North Carolina. Now, this is a bombshell. This is a critical bit of evidence for a critical witness in this case. It goes even beyond this case. It talks about a culture. It talks about so many of the things we've talked about. It talks about framing people, setting up people, falsifying reports. And so we need this lady out here. Obviously efforts are going on to still get her here. We expect to file, if not by this afternoon, by tomorrow morning in Raleigh, Durham an appeal, a writ of mandamus and a writ of certiorari to the Court of Appeals there. We will go all the way to the Supreme Court. We will go to the U.S. Supreme Court if we have to on this issue. I don't want to delay the proceeding. Your Honor understood the materiality of this. And what I'm going to ask you to consider doing is to give us a declaration regarding the materiality of these tapes, of getting this lady out here to California and in these proceedings.

I will be glad to provide your Honor with hopefully some authority with regard to that. After all, it was your subpoena, and you know these facts certainly better than the Judge in North Carolina, and as an Officer of the Court, so do I. And so we--justice should not be thwarted by some bizarre decision by a Judge in North Carolina under these circumstances. So we're not just going to take it laying down. We're going to move ahead. I have this morning been in touch again with the lawyers for Miss McKinney. They're also back in California. So in the Court--my request then today is to make the record clear how strongly we feel about this and how this man, the bottom line is, he's committed perjury. He should be investigated by an office other than the District Attorney's office because of their alliance with this man, perhaps the Attorney General, perhaps the U.S. Attorney. Someone should investigate this for perjury. The police commission has to look at this because this whole aspect of everything that took place here, this is frightening and it's extremely serious. And those of us who heard this in that courtroom were chilled by what we heard and what took place.

And so what I'm asking the Court to do is assist us in getting this information, and I think perhaps a declaration, a further declaration regarding materiality might be the way to go, your Honor.

THE COURT: All right. Miss Clark, do you have a comment?

MS. CLARK: May I have a moment, your Honor?

MR. COCHRAN: May I say one other thing, your Honor? One other thing that I found--

THE COURT: Hold on. They're conferring.

MR. COCHRAN: Okay. All right. I'll do it at that point.

(Brief pause.)

MR. COCHRAN: One other thing that I wanted to say before Miss Clark started to speak. And one other very, very chilling reference that had nothing to do with any screenplay or whatever, there is a statement in his own voice of the ACLU and N double a CP should be bombed. That kind of language, that kind of thought processes, that person who spent 20 years on the LAPD--and I understand he's about to retire, your Honor, to move to this area in Idaho--is just beyond the pale and we need your assistance. We're seeking to do justice here. The primary argument of counsel in North Carolina was the same argument you've heard here today. She--as a journalist, she wanted to have some kind of right of privacy and didn't want to divulge this. But it has been divulged. You know, it's clear we've all heard it, and I think that even the lawyers expected her to be here. Only the Judge made this ruling, which we think is entirely inappropriate, and we're asking you to step in and assist us in that regard.

THE COURT: Miss Clark.

MS. CLARK: I don't--my response is only a legal one. I don't know if this Court can really make a declaration based on the representations of counsel without--not having heard the tapes yourself, your Honor. I don't know legally speaking what the proper response of this Court could possibly be without firsthand knowledge of the material in issue. My review of the transcript to date indicates to me that there was a consistent position taken by the author that this was a screenplay, that Mr. Fuhrman was requested to adopt a character for her in helping her to write this fictional account. This was not a documentary she was writing, your Honor. It's fiction. And my understanding was, Detective Fuhrman was furnishing fictional material for her as a fictional character. So I think that is important to the consideration of whether or not it's material, and I think the Court should know what the matter is before adopting any position in terms of the declaration to oppose another Court. That's the only thing I would indicate.

THE COURT: All right. Mr. Cochran, Miss Clark raises a good point. One, the Court issued the subpoenas under the interstate compact. And there is a procedure that this Court and courts in the receiving states follow. And if the receiving state court made a determination adverse to the issuance of those subpoenas, then there's an appellate remedy, a writ of appellate remedy available in North Carolina. I've made the determination of materiality here. A Judge in a different state has apparently made a different ruling however, and I can not in any way criticize that ruling from this vantage point, nor do I think it's ever appropriate for another Judge to comment or criticize the rulings of another court, especially in matters that are pending. It's unethical and it's inappropriate. And Miss Clark does raise the issue that I have not seen a transcript of those proceedings. I have--but you were there.

MR. COCHRAN: I was there and as an Officer of the Court, I also--someone was kind enough to give up a copy of the tape. Let me indicate this to you. And I will ask the lawyers themselves to come down here tomorrow if you would like to. 95 percent of what's in these transcripts was not part of the play. This was Detective Fuhrman speaking about his experiences as an LAPD officer as a technical consultant. This was not any fiction. You think men against women--that's not a fiction. Miss Clark wasn't there, your Honor. I was there.

THE COURT: Well--all right. Mr. Cochran, here's the problem though. The legal issue before the Court, is there anything that the trial court here in California has the authority to do to enforce an out-of-state subpoena. The answer at this point I believe is no. I've issued the subpoena. It's gone to a reviewing court in another state, and that state has declined to Honor that subpoena after holding a hearing. I'm not in a position I don't think to--I don't have any authority or jurisdiction to do anything more at this point, although I will confess to you this is not a situation that has come before this Court before.

MR. COCHRAN: It has not, and I'm thinking, your Honor, about something analogous to extradition situations. And, you know, you made an interesting point. And we're not here to necessarily criticize anyone in another state. Obviously we've got to go to North Carolina and appeal to another court. So we're not seeking to do that. But, Judge, you know, by this Judge taking this decision or making this decision, he somewhat criticizes your decision regarding materiality. And who, Judge, would know more about materiality in this case that you've been trying since September 26th? You or this Judge back in North Carolina? So I just put that in perspective. I think you're being too kind. Perhaps I can say that. I mean, you would not know a lot more. And I don't expect you to criticize your brethren on the bench, but I think that what we're saying--and if I can give you some authority or some assistance--all we're saying is to ask you to give us something that further buttresses what we're talking about. This is not any fiction. This is the way this man lived. This is the way this man thinks. This is when he talks about Hitler celebrations and things like that throughout. And this isn't all of it, your Honor. There's like 12 hours up until the time after he investigated these particular crimes that this thing went on. It is absolutely frightening. And what it is is, bottom line, it's perjury. It's absolutely perjury. He didn't claim any exception for anything. And that's what it boils down to. This cannot be allowed to stand. And so I'm really frankly surprised that Miss Clark would even say anything. When we talk about a search for truth, this is the truth. We got his own voice. This is not anything anybody made up. It's his voice, his words. And so I think that if you would even just reaffirm your finding of materiality in light of these facts on the tapes, I mean, I think what's what we need. And I want to give you some time to think about it. I want to get back to the jury. If you'll think about it and not rule at this point. You're never precipitous and you wouldn't be now. And think about it and let me see if I can provide you with something additional. After all, we're talking about your subpoena that they failed not to give. I didn't have a subpoena. It was yours, your Honor. And so--but from that standpoint, I think we have an interest in doing the right thing here, being honest and pursuing the truth.

THE COURT: But, Mr. Cochran, we have to put this in perspective. While I have the benefit of having sat through this trial everyday since June the 22nd, so I know something about the facts and circumstances, that court heard the tapes, saw the transcripts and talked to the parties involved, the author and her counsel. So that Judge has more information than I do about the particulars.

MR. COCHRAN: Well, let me say this.

THE COURT: And I decline your--you will not lure me into criticizing another Judge.

MR. COCHRAN: No. I'm not trying to get you to criticize anyone. I'm just saying, I have a copy of the proceedings. So you can see those very easily. And let me tell you something, Judge. We went back into chambers for about maybe a half hour, and we read transcripts of the first 48 pages that talked about framing people and that sort of thing, tearing up licenses, what you do for this. And we read this and we then listened to enough of the tape and then brought the client in to say, "Is that Mark Fuhrman's voice," and of course it was.

You got to understand, this happens from `85 up to `94. 90 percent of the information we never heard. But in talking to the lawyers who had heard this, they were very clear. This has nothing to do with any screenplay. This was background. There's perhaps one or two references about a screenplay. She then took what she wanted from him as a resource person. In fact, she talks to another police officer too somewhere on these tapes. There's far more to this than the Prosecution is aware of. This is a situation where these tapes ultimately must come to California, Judge, because it's critical to the Defense. And as I said, we're going to take this all the way to the U.S. Supreme Court if she doesn't come forward voluntarily. But it is not--they cannot hide behind an absence of materiality. And I don't want you to criticize anybody. I just want you to stand up for what you believe. You know that Fuhrman is material as I've indicated. If the jury disbelieves his testimony, your Honor, who could quarrel with the fact that's very important to this particular case where he's committed perjury. And so that's what we're talking about here. So I would like an opportunity to perhaps see if there's any cases that might assist us, anything analogous to this in the law that will help us. But I wanted to bring it to your Honor's attention at the first available time.

THE COURT: All right. Thank you, counsel.

MR. COCHRAN: Thank you very kindly, your Honor.

THE COURT: All right. Are we ready to proceed? All right. Deputy Magnera, let's have the jurors, please.

MR. NEUFELD: Your Honor, just as a reminder to save time, I'll finish my direct in probably 10 minutes. The Court had already ruled that before the Prosecution can begin its cross-examination, they have to turn over disclosure of any impeachment material they intend to use before they begin the cross. In particular, transcripts of any other proceedings they intend to use have to be given to counsel. And also, your Honor, it's my understanding that we agreed that before they go into any of the cases, that we will have a sidebar on those issues as well.

THE COURT: That's correct.

MR. NEUFELD: Thank you. So you may realize that in eight minutes, there's going to be a brief recess to deal with some of those issues. Okay.

(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. And, Professor MacDonell, would you resume the witness stand.

Herbert MacDonell, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:

THE COURT: Let the record reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: All right. Good afternoon, professor.

PROF. MACDONELL: Good afternoon.

THE COURT: You are reminded, sir, you are still under oath. And, Mr. Neufeld, you may continue.

MR. NEUFELD: Thank you, your Honor. Good afternoon, everyone.

THE JURY: Good afternoon.

DIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Professor MacDonell, you may recall this morning, I asked you a couple of different hypothetical questions. Let me begin by asking you another hypothetical. Sir, based on your observations of the sock and your expertise, are the wet transfer stains that you observed on the ankle area of sock 13-a consistent with someone dabbing the sock with blood after it has been removed from Mr. Simpson's foot?

MS. CLARK: Objection. Objection. Beyond the scope of his expertise, speculation, improper hypothetical.

THE COURT: Rephrase the question, counsel.

MR. NEUFELD: Hypothetically, sir, and based on your examination of the sock and based on your four years of expertise in interpreting bloodstain patterns, are the wet transfer stains that you observed on the ankle area of sock 13-a consistent with someone dabbing the sock with blood after it has been removed from Mr. Simpson's foot and--

MS. CLARK: Objection, your Honor.

THE COURT: Sustained. Problem is removal. Well, it's not being worn.

MR. NEUFELD: Okay. You mean, you want me to rephrase it.

THE COURT: Yes.

MR. NEUFELD: Okay. Based on your observations of the socks and based upon your 40 years of experience in this field, sir, are the wet transfer stains you observed on the ankle area of sock 13-a consistent with someone dabbing the sock with blood when it is not being worn by Mr. Simpson and instead spread out and laid flat on a flat surface?

MS. CLARK: Same objection.

THE COURT: Overruled.

PROF. MACDONELL: Yes, they are. The stain is I should say.

MR. NEUFELD: Okay. Now, I believe you testified earlier last week when we started the direct examination, professor, that the ankle stain, even that portion of the ankle stain that's remaining was visible to the naked eye when you examined it on April 2nd; is that correct?

PROF. MACDONELL: That's correct.

MR. NEUFELD: Now, you're a trained criminalist; is that correct, sir?

PROF. MACDONELL: Yes.

MR. NEUFELD: All right. In your expert opinion, sir, should other trained criminalists be expected to visualize the bloodstain on the ankle with the naked eye?

PROF. MACDONELL: Yes, they should.

MR. NEUFELD: Now, let me ask you--

MS. CLARK: Irrelevant.

THE COURT: Overruled.

MR. NEUFELD: Now, let me ask you one last hypothetical, sir. Assume that on June 29th, 1994, three criminalists from the Los Angeles Police Department laboratory, Greg Matheson, laboratory director Michelle Kestler and Collin Yamauchi removed the socks from their packaging and laid them out on a white sheet of paper to inspect them. Given what you observed on April 2nd, would you have expected the trained criminalist on June 29th to discover the bloodstain on the ankle had it been there on June 29th?

MS. CLARK: Objection. That calls for speculation, improper hypothetical, assumes facts not in evidence.

THE COURT: Sustained.

MR. NEUFELD: Are you aware of the fact, sir, that Greg Matheson and Collin Yamauchi testified that on June 29th, 1994, they took the socks out of its packaging and examined it on a white sheet of laboratory paper?

MS. CLARK: Objection, your Honor. Assumes facts not in evidence, calls for speculation, improper hypothetical.

THE COURT: Sustained. Sustained. I know what they said, counsel. The problem is "Examined," is the word "Examined." It's a vague term in the context of this question.

MR. NEUFELD: All right. Are you aware of the fact that Collin Yamauchi and Greg Matheson testified that on June 29th, they removed the socks from their packaging and placed them on a white sheet of laboratory paper?

PROF. MACDONELL: Yes. I have read that.

MR. NEUFELD: Okay. Are you--

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And are you aware of the fact, sir, that they testified that they looked at the socks at the time that they removed them from their packaging and placed them on a white sheet of paper?

MS. CLARK: Objection. Objection. That misstates the testimony.

THE COURT: Overruled.

PROF. MACDONELL: Yes, I am.

MR. NEUFELD: Sir, given those facts, would you expect that those trained criminalists would have observed--would be expected to have observed the bloodstain on the ankle that you observed on April the 2nd?

MS. CLARK: Objection. That calls for speculation, argumentative.

THE COURT: Overruled.

PROF. MACDONELL: Yes.

MR. NEUFELD: Now, right before lunch, I asked you some questions about body temperature. Do you recall that?

PROF. MACDONELL: Yes, I do.

MR. NEUFELD: And I also asked you some questions, sir, where I asked you to literally read from the official records of the U.S. weather service. Do you recall that?

PROF. MACDONELL: Yes I do.

MR. NEUFELD: Now, you're not a meteorologist, are you?

PROF. MACDONELL: No, I'm not.

MR. NEUFELD: You're not an expert on weather conditions, are you?

PROF. MACDONELL: Well, as a layperson, yes, but not as an expert.

MR. NEUFELD: Okay. But you're able to read numbers off of this sheet; are you not?

PROF. MACDONELL: Yes, I am.

MR. NEUFELD: And I'm--when I say "This sheet," I'm referring to I think--

THE COURT: 1280.

MR. NEUFELD: --1280, the official records of the U.S. weather service.

MR. NEUFELD: And, sir, when you read those numbers, it revealed that the temperature range between the evening of June 12th and the morning hours of June 13th were between 63 and 66 degrees; is that correct?

PROF. MACDONELL: That's correct.

MR. NEUFELD: When--earlier this morning, you were talking about the different factors that can affect drying time of blood. Does temperature affect drying time?

PROF. MACDONELL: Oh, certainly.

MR. NEUFELD: Will a stain dry faster at 90 degrees than at say 64 degrees?

MS. CLARK: Objection. No foundation.

THE COURT: Overruled.

PROF. MACDONELL: Yes, it certainly will.

MR. NEUFELD: No further questions, your Honor.

THE COURT: Miss Clark. Oh, I'm sorry. Let me see counsel over at the sidebar with the court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. Do we got any transcripts?

MS. CLARK: I'm sorry?

THE COURT: Got any transcripts of prior testimony?

MS. CLARK: Do we have any? We have. I don't know if we are going to use them or not. Depends on the answers I get.

MR. NEUFELD: The Court's prior ruling was that she was to provide us with all the transcripts.

THE COURT: No. If it comes up that they're going to use them.

MS. CLARK: Right. And I'll ask to approach before I use the transcript.

THE COURT: All right. What else do you have? You do have transcripts?

MS. CLARK: Yes I do. What else do I have? I think that is--well, articles, a couple of articles.

MR. COCHRAN: Can we see them?

MS. CLARK: No.

THE COURT: Hold on.

MS. CLARK: Well, depends on the answers I get.

THE COURT: What kind of articles?

MS. CLARK: That he has written.

THE COURT: He's written?

MS. CLARK: His writing, his book and a couple of newspaper articles.

THE COURT: Newspaper articles?

MS. CLARK: Magazine.

THE COURT: That he's written?

MS. CLARK: No. About him, that are written about him with quotations from him.

THE COURT: Okay.

MR. NEUFELD: I would ask to see those articles now so I can be prepared for it and make the appropriate objections. If she wants to go into those things, we are going to have to have a sidebar before she goes into them because there's already been a ruling, and we're then going to have to read them for the first time, and we're going to have 15-minute delays every time we come to the sidebar. I thought the whole purpose of your order to get the transcript as soon as we finished the direct and the other impeachment material was to expedite the proceedings.

THE COURT: Miss Clark.

MS. CLARK: We don't even get discovery from them on direct. This is amazing, what they're asking for. I'm going to ask what I think to be appropriate questions. If the answers I get are not what I deem to be truthful, then I will ask to impeach him, I will ask to approach.

THE COURT: Okay. All right. Let's go.

(The following proceedings were held in open court:)

THE COURT: Miss Clark.

MS. CLARK: Thank you, your Honor.

CROSS-EXAMINATION BY MS. CLARK

MS. CLARK: Good afternoon, Mr. MacDonell.

PROF. MACDONELL: Good afternoon, Mrs. Clark.

MS. CLARK: Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

MS. CLARK: Mr. MacDonell, you indicated that you've authored many articles, correct?

PROF. MACDONELL: Yes.

MS. CLARK: And you've written a book that has since recently been revised; is that correct?

PROF. MACDONELL: Yes. It's been revised twice actually.

MS. CLARK: And the last revision was in 1993; is that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, there was a paper that you presented, sir, as recently as earlier this year in Seattle, is that correct, entitled absence of evidence is not evidence of absence? Do you recall that?

PROF. MACDONELL: I believe Mr. Kish presented it. I coauthored it with him.

MS. CLARK: Yes. You are listed on the article as the co-author; were you not?

PROF. MACDONELL: Yes.

THE COURT: All right. Miss Clark, I'm going to direct you to give a copy of that to Mr. Neufeld.

MS. CLARK: I'm going to show you a copy as well, sir. Mr. Kish is entitled in this article as your research associate; is that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: Let me show you the article, sir, and ask you if you recognize it.

PROF. MACDONELL: Well, this is the article. It's not been published yet, but it's basically the same thing. I hope it will be published in this form.

MS. CLARK: That is the form in which you intend for it to be published; is that right, sir?

PROF. MACDONELL: That's correct.

MS. CLARK: And you have presented this paper at a number of speeches that you've given; is that correct?

PROF. MACDONELL: No. I've never presented it. Mr. Kish presented it in Miami in September last year, the same--basically the same thing.

MS. CLARK: Nevertheless, sir, I suppose you would agree that you--even though he presented it, you coauthored it and you stand by the principles that it espouses, correct?

PROF. MACDONELL: Oh, absolutely.

MS. CLARK: And in that regard, sir, with regard to this paper, I want to ask you a series of questions concerning the contents. First of all, I'm going to direct your attention to the first page, the third paragraph, sir. I'm going to explain to--

MR. NEUFELD: Objection. May we approach?

THE COURT: Yes, with the court reporter please.

(The following proceedings were held at the bench:)

THE COURT: Let me see the article.

MR. NEUFELD: This is the paragraph they're looking at. May I be heard?

THE COURT: All right.

MR. NEUFELD: We're way beyond the scope. The entire direct examination was limited to the sock. I didn't do anything but the sock. I didn't do crime scene reconstruction with this witness. I didn't do bloodstains at Rockingham and Bundy. I didn't do amount of blood at the scene, would you expect to see blood on the Defendant. I didn't do any of those other subjects. This is outside the scope of the direct examination. He's my witness, and they're not allowed to impeach on an item which I didn't go into. Remember, I even said to you before, your Honor, I said I was not going to go into Bundy, I was not going to go into those kinds of issues, it was going to be very limited direct. In fact, after this morning, it became half as long than it was intended to be originally.

So my direct examination was limited to the sock. And the fact that they want to use this witness to talk about the fact that there may not have been a lot of blood on Mr. Simpson and that's not--evidence wasn't there is not cross-examination. It's not impeachment. It's trying to use this witness on subjects outside the scope of the direct examination.

THE COURT: Miss Clark.

MS. CLARK: It goes to his expertise, your Honor. Counsel was very broad to bring out all the articles and book that has been authored by this witness. I think I am entitled to go into some of these articles. I'm not asking--I'm not going to do it for an hour, but I think I'm entitled to explore his fund of knowledge as an expert in this field. This paper that he presented, which he prepared with is collateral with one of the areas of his expertise. It's certainly right on point in terms of area of expertise to which he's testifying today.

THE COURT: Keep your voice down.

MS. CLARK: Sorry.

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

MS. CLARK: And the fact that he happens to have testified one single large stain on the sock would not have been anticipated to have much blood on it and instead, has only this one stain to which he's testified very little else is another matter that should be explored with this witness and something he can explain to this jury. But all that aside, I mean this is a publication he's referred to. He is an expert. I'm testing his area of expertise and I don't think that the Prosecution should be curtailed simply because this particular area was not gone into. This is his area of expertise.

THE COURT: Mr. Neufeld.

MR. NEUFELD: She's not testing his expertise on the area he actually testified to. He never testified that he expected more blood on the sock or less blood on the sock. He gave no opinion based on the nature of the crimes how much blood would be on the perpetrator. None at all. She's not suggesting--I mean, I think it's completely transparent on the part of the Prosecutor that not for a second is she trying to offer this paragraph and this article to show that he's an expert or to impeach that he's an expert. She's offering this because she wants to use him to go into another subject beyond the scope of direct examination.

MS. CLARK: Well, your Honor, they raised the conspiracy issue and--

THE COURT: Wait, wait, wait. All right. The paragraph reads as follows: "The complete absence of bloodstains on a Defendant or his clothing is frequently assumed by many to be definitive evidence that the Defendant did not directly participate in a violent act. This is a misconception fostered and exploited by those who have insufficient knowledge and experience in bloodstain pattern interpretation or by those who hope that such an opinion would aid in their client's defense. Explanations for the lack of bloodstaining on an individual who has actively participated in a violent act are innumerable. These include the assailant cleaning up prior to his being apprehended, removal of his clothing prior to committing the act or simply not being stained because spattered blood was intercepted by some intermediate target." The objection is one of scope. The problem is that this testimony from Mr. MacDonell comes in the context of how much blood was there on the sock, and he has opined that the amount of blood that accounts for this particular large blood spot on sock 13-a could have been created by merely one drop of blood. So the amount of blood that's on clothing as a result of this type of situation is relevant within the context of the amount of blood for this one--

MR. NEUFELD: I think there's a misunderstanding about why and what Mr. MacDonell was saying with regard to the drop of blood. The reason he said there was a drop of blood at that point was, he was about to give his opinion as to the drying time implied. He has not meant by any comment--there may be 30, 40 or 50 stains on those socks already been testified by Gary Sims. He was simply describing one stain. And the reason the size of it became important, your Honor, was because he was saying given the size, it could not have been a spatter.

THE COURT: No. But, Mr. Neufeld, Mr. Cochran is going to argue that since that stain could have been caused by merely one drop of blood, it didn't take much to create that stain. That's what the argument is going to be. So I will sustain Mr. Neufeld's objection in part. You can't go into every possible explanation as to how much blood is where and why. You can go into how much is on this particular stain.

MR. NEUFELD: Well, I would ask they be precluded from actually quoting from this portion of the article because this article is making a much broader statement which is consistent really if you just consider--also, 352 because frankly, your Honor, then I can elicit from this witness, are there other facts that you've looked at in this case, other evidence you looked at which would show this is an exception to this general impression, because remember, even though he's testified about one area, he has looked at much of the evidence in this case. And I would make a 352 objection as well.

THE COURT: I sustained this objection because this is overbroad. You can go into his expertise regarding--expertise as to how much blood is where. If you get an answer that is adverse to this, that is--

MS. CLARK: You mean I can't ask him about this article?

THE COURT: You can ask him about studies, how much blood gets where during the course of a crime. You can ask them in the context of this particular spot. If you get something different from this, then you can cross-examine.

MS. CLARK: Wait a minute. Your Honor, I don't get it. I don't get it.

(The following proceedings were held in open court:)

MS. CLARK: All right, sir. As a general proposition, would you agree that the absence of bloodstains on a Defendant or his clothing which are frequently assumed to be definitive evidence that the Defendant did not directly participate in the violent act is a common misconception that is fostered and exploited by those who have insufficient knowledge and experience in bloodstain pattern interpretation or by those who hope to help in their client's defense? Would you agree with that, sir?

PROF. MACDONELL: Yes. Yes.

MR. NEUFELD: Object to the form.

THE COURT: Overruled.

MS. CLARK: And that is the subject matter of this article; is it not?

PROF. MACDONELL: Basically. It's a law school theme. It's not original with us. We just applied it to more specific applications in bloodstain pattern interpretation. It's a general rule, yes.

MS. CLARK: And as a matter of fact, the absence of blood--even in a very bloody crime scene, the absence of blood on a Defendant or his clothing is not an unusual thing in your experience, is it, sir?

MR. NEUFELD: Objection. Beyond the scope.

THE COURT: Sustained.

MS. CLARK: With regard to the amount of blood you expect to see on a Defendant or his clothing after having committed a very bloody crime, a stabbing such as this one, if you were to fail to see a great volume of blood on that person, would that be surprising to you, sir?

MR. NEUFELD: Objection. Beyond the scope.

THE COURT: Sustained.

MS. CLARK: The view that blood--the absence of blood on a Defendant who has participated in a bloody crime is not unusual, is that one widely held in the forensic community?

MR. NEUFELD: Object. Beyond the scope and ask to approach.

THE COURT: Sustained. Sustained.

MS. CLARK: Sir, you found--you examined these two socks, correct?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And you found the one stain which you qualified as being--quantified as being one drop; is that right?

PROF. MACDONELL: Yes.

MS. CLARK: In the context of your examination, sir, and based on your experience and your expertise, is it unusual to find such a small amount of blood on the clothing of a Defendant who has just involved himself in a very violent act as you found in this case?

MR. NEUFELD: Objection again, your Honor. Assumes facts not in evidence.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: You examined both socks, correct?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And you observed blood; is that correct?

PROF. MACDONELL: I observed what was tested to be blood. I didn't actually do the testing, but I observed some of it being tested with presumptive tests.

MS. CLARK: Okay. Other than--well, with respect to the bloodstains that you found on the socks, sir, you found the one stain at the bony ankle area that protruded, correct?

PROF. MACDONELL: Again, I did not determine they were blood. If they were bloodstains, the stains I found were on more or less the body protruances (Sic), yes, the ankle bone.

MS. CLARK: All right. Now, the cut-out area, the actual stain itself was cut out of the sock when you saw it, correct?

PROF. MACDONELL: The center was cut out, yes.

MS. CLARK: And did you examine that center at any point?

PROF. MACDONELL: The cut-out wasn't with the sock. I never saw it, no.

MS. CLARK: So all you ever saw was a periphery, correct?

PROF. MACDONELL: The periphery and the cut-out area.

MS. CLARK: The periphery of the cut-out area, sir? Is that what you're saying?

PROF. MACDONELL: The periphery of the stain within which the cut-out area existed.

MS. CLARK: Okay. Then the area that was actually removed from the sock, that cut-out, you did not see?

PROF. MACDONELL: No, I did not.

MS. CLARK: So you did not see the center of the stain; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, with respect to the amount of blood on those socks, did you characterize--or what might be blood. Okay. The amount of staining that you observed, did you characterize that as heavy staining, sir?

PROF. MACDONELL: In the area as you came closer to the cut-out area, it became more concentrated. I would not say it was terribly heavy, but it certainly was saturated in some areas.

MS. CLARK: Uh-huh.

PROF. MACDONELL: But the overall size of the stain would not tell me it's a heavy staining. It's about what one drop would do. The center would be wet through, and as you go out to the edges or the periphery, it becomes less and less to the point where it's just on the surface, the outside surface of the fibers.

MS. CLARK: Now, have you seen photographs of the crime scene in this case, sir?

PROF. MACDONELL: Some of them.

MS. CLARK: Okay. It was a very bloody crime scene; was it not?

MR. NEUFELD: Objection. Beyond the scope.

THE COURT: Overruled.

PROF. MACDONELL: I've seen photographs of the crime scene, yes.

MS. CLARK: And would you agree with me, sir, that it was a very bloody crime scene?

PROF. MACDONELL: It was an extremely bloody crime scene. I've seen several that were bloodier so to speak, but there was a great abundance of blood, yes.

MS. CLARK: Okay. In your experience, sir, this is a--you know, you've seen other double homicides; is that correct?

PROF. MACDONELL: Yes, I have.

MS. CLARK: And so this is a double homicide. You've seen that before?

PROF. MACDONELL: I have.

MS. CLARK: And you've seen I'm sure cases in which there were throat slashing with maybe some arterial splurt; have you not?

PROF. MACDONELL: Yes, I have, many times.

MS. CLARK: In fact, isn't that the subject of some of your discussions in your book?

PROF. MACDONELL: Yes. That's one of the classic patterns. It's arterial gushing. There are three subdivisions, but that's a classic pattern.

MS. CLARK: So that would not be unusual as an aspect of this case, correct?

MR. NEUFELD: Objection. Beyond the scope of direct.

THE COURT: Sustained. Let's go back to this sock, please.

MS. CLARK: Yeah. I'm trying--what I'm--

THE COURT: I know what you're doing.

MS. CLARK: You know what--all right.

THE COURT: Proceed.

MS. CLARK: In other words, the amount of blood that you see in this crime scene, you have seen before, it's not unusual?

PROF. MACDONELL: That's correct.

MS. CLARK: And the aspects of this killing are not unusual in your experience, you've seen them before, correct?

MR. NEUFELD: Objection, your Honor. Asked and answered.

PROF. MACDONELL: Correct.

THE COURT: Overruled.

MS. CLARK: And you examined the socks; did you not, sir?

PROF. MACDONELL: I did.

MS. CLARK: The--and you indicated before in your--when I just asked you a couple minutes ago that the amount of staining on the socks was not terrific, although in one area, it was more concentrated, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: Is the absence of a great large volume of blood on those socks a surprise to you in your experience, sir, based on what you know about what you expect to see on a Defendant who has committed a very bloody crime?

MR. NEUFELD: Objection. Again, assumes facts not in evidence.

THE COURT: Rephrase the question, please.

MS. CLARK: Based on your expertise, sir, and your experience over the years, is the failure to find large globs of blood on those socks unusual in light of the fact that there was a great deal of blood at the crime scene?

MR. NEUFELD: Again, objection. Assumes facts not in evidence. There's no testimony--

THE COURT: Overruled. Overruled.

PROF. MACDONELL: No, it's not surprising at all because there's one basic thing that I don't know and I don't think anyone does; that if a person is wearing long pants, it would cover that area. If they're wearing shorts, it wouldn't. That would be one thing that could intercept blood if it were indeed projected toward the socks. If I stand up, my pants will cover my socks, but not while sitting down. So that's just one factor. There are many factors to consider. And the absence of a lot of blood staining doesn't surprise me, but the presence is what we examine. We speculate on what's not present.

MS. CLARK: And that is something that you have warned many others not to do; isn't that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: That you should interpret what is there and not speculate what is not there?

PROF. MACDONELL: Correct.

MS. CLARK: And so the absence of blood on a Defendant who has committed a very bloody crime is not a surprising thing to you in your experience--

THE COURT: Sustained. We're talking about socks.

MS. CLARK: The absence of a great deal of blood on those socks is not a surprising thing to you given your experience and your knowledge in this field, correct, sir?

PROF. MACDONELL: No. Not surprising.

MS. CLARK: And there can be innumerable explanations for that; wouldn't you agree, sir?

PROF. MACDONELL: Yes, there can be.

(Brief pause.)

MS. CLARK: Now, in your--did you only examine the socks in this case, sir?

PROF. MACDONELL: That is correct. There were I think shoes or boots, but the only thing that I particularly examined was the two black socks or navy blue. I should correct that. I see it as black. My wife sees it as navy blue. I don't think there's a difference.

MS. CLARK: Okay. So that was really the limit of what you examined in this case?

PROF. MACDONELL: Yes. As far as the physical evidence is concerned.

MS. CLARK: Okay. Sir, can you tell us what are medium velocity blood spots?

PROF. MACDONELL: Well, I don't know. We talk about blood spatter that results from medium velocity impact. If you're referring to that, they are projections of blood that results from an impact that may be consistent with a beating, a stabbing, any kind of action of approximately 25 feet per second, which is a very arbitrary value.

MS. CLARK: And when you say stabbing, I assume you would also include in that a throat slashing?

PROF. MACDONELL: No. That would not be the same as a stabbing. A stabbing is simply a beating with a sharp instrument, and a spatter that results is from the impact to the surface where blood has accumulated. A slitting of an artery would produce no medium velocity. It would produce arterial gushing. It might produce some castoffs. But unless you did it very rapidly, you couldn't have medium velocity spatter from a slitting of a throat, for example.

MS. CLARK: Uh-huh. From a slitting--but that assumes of course that the perpetrator is standing in front to get the gushing or the spatter onto them. If you're standing behind, that would not be the case?

PROF. MACDONELL: Well, again, that's not spatter. That would be arterial gushing. And it's--it's less likely you would get blood coming from a wound to the front of a person if you're standing behind them than if you're standing in front of them. I think that's basic logic.

MS. CLARK: Now, what kind of--what velocity of spatter would you expect to see on the perpetrator of a crime who stands behind his victim and slashes his throat?

MR. SHAPIRO: Your Honor, beyond the scope.

THE COURT: Sustained. Sustained.

MS. CLARK: Do you recall--what would you qualify--you indicated that you saw some evidence of spatter on the socks, correct?

MR. NEUFELD: Objection. That was not his testimony.

MS. CLARK: Yes, it was. I have the transcript.

THE COURT: Rephrase the question.

MS. CLARK: You testified on direct that you saw some evidence of spatter on the socks. Do you recall that testimony, sir?

PROF. MACDONELL: I don't believe I said I saw spatter. I saw what had been described as spatter. If I said I saw spatter, I did not see what I would call blood spatter.

MS. CLARK: May I have a moment, your Honor?

THE COURT: Yes.

(Brief pause.)

MS. CLARK: I want to--I'm going to show the excerpt to counsel. Then I'm going to read it to you, sir, and see if that refreshes your memory.

(Brief pause.)

MS. CLARK: Sir, I'm going to direct your attention to this area right here and ask you to read it and ask you if it does not indicate that you said that you had seen other more convincing evidence of it, referring to spatter.

PROF. MACDONELL: I can't listen and read at the same time. Yes. I've seen more convincing evidence of spatter in my career, but not the socks.

MS. CLARK: I think that you ought to continue reading, sir.

PROF. MACDONELL: Again, I'm referring to blood spatter as it appears not on the sock. I looked at--the best photographs available to me were the infrared pictures. They're small round circles of what could be blood or something else. I think that's slightly out of context, but I can see how you would interpret it to be on the socks.

MS. CLARK: Well, let me read this entire thing to you, and you tell me how you interpret it. All right, sir?

PROF. MACDONELL: Certainly.

MS. CLARK: You were asked by Mr. Neufeld: "In your opinion, Professor MacDonell, is the ankle stain that you saw a spatter stain?" Your answer: "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 ankle staining, I want you to focus on that. In your opinion, was the ankle stain a spatter stain?" Excuse me. "Oh, no. Not the ankle stain. I thought you meant the entire socking." Now--

PROF. MACDONELL: Yes. And I--

MS. CLARK: Can you explain to us, sir--well, let me ask you this. Didn't you mean to convey by that that in examining the entire stocking, you had seen evidence of spatter? Isn't that what you meant to convey?

PROF. MACDONELL: Not at all. I stated that I've seen more compelling evidence of spattering many times than anything on this stocking, particularly in the first part of his question relating to the small transfer stain. Then when he went to the other spots, I disagreed. That is not what I'm referring to. I've seen more on other objects than I have on that sock. And that is--the way you're reading it, it would sound like I'm referring to the socks. But the evidence I've seen does not show spatter on the socks.

MS. CLARK: But, sir, excuse me. But isn't it--what you said hear, you didn't say that in response to Mr. Neufeld's question. You said--

THE COURT: Wait, wait. Counsel, rephrase the question. That's argumentative.

MS. CLARK: What you said in response to Mr. Neufeld's question, sir, was: "Oh, no, not the ankle stain. I thought you meant the entire stocking." Were you referring to a stocking in another case?

PROF. MACDONELL: No. I'm referring to that stocking, and I've seen more compelling evidence of spatter than I have ever seen on that stocking. That's not spatter.

MS. CLARK: Did you see any evidence of spatter around the ankle stain to which you've testified?

PROF. MACDONELL: No.

MS. CLARK: You saw none?

PROF. MACDONELL: Nothing that I would say makes a pattern of spatter. You don't have one little spot or two making a pattern.

MS. CLARK: And yet, sir, you have testified to a few little microbes as a pattern; have you not?

PROF. MACDONELL: No.

MS. CLARK: You have testified concerning your observations of one stain; isn't that true?

PROF. MACDONELL: That's correct.

MS. CLARK: And in your book and in your writings, you have previously said that one stain does not a pattern make; isn't that correct?

PROF. MACDONELL: That's correct.

MS. CLARK: But in this case, you've testified only to one stain; isn't that right?

PROF. MACDONELL: I'm testifying about the mechanism and not a pattern. A pattern consists of more than one stain. A mechanism and how it got there is an entirely different matter.

MS. CLARK: What is the other evidence of blood that you saw around the ankle stain to which you've testified?

PROF. MACDONELL: What's the other evidence?

MS. CLARK: Yes. What other pattern did you see or what other spots did you see around the ankle stain that caused you to make the statement that you did concerning your observation of the entire stocking?

PROF. MACDONELL: That I didn't see any spatter on the entire sock as well. I've seen more compelling evidence of spatter. The person who looked at that and thought they were round spots is mistaken. They're not spatter. They look like flying saucers and donuts and trapezoids. They're not round.

MS. CLARK: What is it?

MR. NEUFELD: Your Honor, objection. Will she please allow the witness to finish?

THE COURT: Yes.

MS. CLARK: I'm sorry. Then what is it?

PROF. MACDONELL: I don't know. It looks like it was transferred in an irregular fashion. I don't know the mechanism.

MS. CLARK: You're testifying now to the finer spots around the ankle stain?

PROF. MACDONELL: No. I'm testifying to the overall socks.

MS. CLARK: Sir, I'd like you to talk about the spots that are around the ankle stain to which you've testified. Can you do that for us, please?

PROF. MACDONELL: Yeah.

MS. CLARK: Okay. Can you tell us what your observations were with respect to the areas around that ankle stain?

PROF. MACDONELL: I don't recall exactly. There might have been other spots there. But the stains immediately around it that were disassociated are on the surface of the fibers. They're the transfer stains.

MS. CLARK: You indicated, sir, that you saw the infrared videotape of those socks; did you not?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And would it refresh your memory a little bit if we showed you that infrared videotape?

PROF. MACDONELL: Yes. I think photographs would be better because there's static, but I'd be happy to look at it again.

MS. CLARK: Thank you. We'll get those. Now, you indicated in your book that medium--

MR. NEUFELD: I'm sorry. I would ask that the attorney state which book because there were several.

THE COURT: Which edition? 3rd edition? Just show Mr. Neufeld the page you're referring to.

MS. CLARK: 62.

THE COURT: And which page, counsel?

MS. CLARK: 62.

THE COURT: 62. All right. All right. Proceed.

MS. CLARK: All right. In your book, sir, you talk about the fact that stabbing or cutting will generally result in medium velocity bloodstains, correct?

PROF. MACDONELL: Yes, if there's sufficient impact.

MS. CLARK: And then you indicated in your book that medium velocity blood spatter is difficult to see. In fact, you said in your book that: "When such medium velocity blood spots as are generated in a stabbing are discovered on the clothes of the killer, they will usually be somewhat below the resolution of the average juror's eyesight." Can you look at page 62 and tell us if that is written in your book?

PROF. MACDONELL: Yes.

MS. CLARK: And then that difficulty is enhanced or made more difficult when the material is dark in color; isn't that true, sir?

PROF. MACDONELL: That's correct.

MS. CLARK: And in fact, you had difficulty in the visualization of blood spatter on dark clothing in the Briggs case in which you testified in Monterey county?

THE COURT: Wait, wait, wait, wait, wait. Let me see counsel at the sidebar with the court reporter.

(The following proceedings were held at the bench:)

MR. NEUFELD: I would ask the Court to impose sanctions on Miss Clark. She was warned three times, three times before he took the witness stand on direct, I think at the conclusion of direct, and then at sidebar, you reiterated that she was not allowed to refer to or mention any of the other cases without first approaching sidebar. And I think sanctions are in order.

THE COURT: Miss Clark, do you have a copy for Mr. Neufeld, what you're about to use?

MS. CLARK: Yes. Mr. Gordon has it, although let me indicate to the Court, this is not--I don't see a great cause for hysteria here. We are not impeaching him. We are not impeaching him.

THE COURT: Keep your voice down.

MS. CLARK: It's appropriate.

MR. COCHRAN: She used the word "Hysteria." I just wanted to remind you of that.

MS. CLARK: I was waiting for my chance to use it, your Honor.

THE COURT: Do you have a copy for Mr. Neufeld?

MS. CLARK: I have an extra copy. He has a copy.

MR. NEUFELD: No. I would like a copy.

MS. CLARK: He transcribed stuff.

MR. NEUFELD: I'm supposed to get a copy. That's the way--

MS. CLARK: I'll get you a copy. Scott has it here though. Do you have an extra copy, Scott? And I would like to--

MR. NEUFELD: Your Honor, you may recall also, your Honor, he didn't even deny that phenomena in his book before she wants to refer to this. So it would be totally inappropriate to refer to another case because he wasn't--it's not impeachment. He wasn't denying the theory that she was describing.

THE COURT: Not at this point. I didn't even get a question and answer at this point yet. All right. Mr. Gordon, do you have a copy for Mr. Neufeld?

MS. CLARK: Can we give--

MR. GORDON: We're bringing down a copy of the whole transcript right now.

THE COURT: I will take the matter of sanctions under submission until we complete the testimony of this witness. We will not proceed on this until you get a copy, Mr. Neufeld.

MS. CLARK: We can give him a copy right now, your Honor.

(The following proceedings were held in open court:)

MR. NEUFELD: May we approach?

THE COURT: Proceed. No. Not at this point.

MS. CLARK: Counsel has it, your Honor.

THE COURT: I understand he has it. I haven't heard a basis for its admissibility yet. Proceed. The issue is the ability to see blood staining, medium velocity blood spatter on dark clothing. That's the issue. Proceed.

MS. CLARK: All right. And you would agree, sir, that blood, especially of the medium velocity range would be difficult to visualize on dark fabric; isn't that correct?

PROF. MACDONELL: Generally, yes.

MS. CLARK: And what is the size of an average blood drop, sir?

PROF. MACDONELL: 50 microliters is the volume. If you want the diameter, it's 4.6 millimeters in air.

MS. CLARK: In air?

PROF. MACDONELL: Yes.

MS. CLARK: And on impact?

PROF. MACDONELL: 6.4 millimeters diameter if it's very carefully laid down. In all practical purposes, if it falls perhaps six or eight inches, it would be up to 11 or 12 millimeters.

MS. CLARK: Okay. And what was the size of the stain that you measured on the ankle bone of the sock, the ankle bone area of the sock?

PROF. MACDONELL: There was no specific drop or circle. It was smeared in a sense. That's why it was not uniform in its density. The overall size was about one by one and a half inches.

MS. CLARK: And that--and you estimated then that the amount of blood in that stain would have been how much?

PROF. MACDONELL: About one drop. Possibly a little more.

MS. CLARK: 50 microliters?

PROF. MACDONELL: 50 microliters, 60 microliters. It's very difficult to tell because the surface itself is plastic. That is it's synthetic. And so it smears more easily than say cotton or something that absorbed more readily or thicker.

MS. CLARK: Did you take the material of these socks and attempt to measure the absorption rate on these socks?

PROF. MACDONELL: No.

MS. CLARK: Did you make a cutting from the material of these socks in an attempt to evaluate how much blood would actually be absorbed in the area of the size of the stain to which you've testified you think this one was?

PROF. MACDONELL: It wouldn't have mattered if I had it. No, I didn't cut one out, but there's no way I can design such an experiment.

MS. CLARK: But your answer is no, you didn't?

PROF. MACDONELL: No.

MS. CLARK: And did you perform any experiment on the actual socks themselves by cutting out a swatch to determine how absorbent it would be of water, how quickly it would absorb water?

PROF. MACDONELL: No.

MS. CLARK: Did you cut out a piece of the--of this material from these particular socks and view them with blood to determine how readily they would absorb blood?

PROF. MACDONELL: No, I did not.

MS. CLARK: Wouldn't you agree, Mr. MacDonell, that it would be of some assistance to you in your testimony to have known how readily this particular sock would have absorbed blood or water?

PROF. MACDONELL: If it was possible to determine it, I would be able to give a more accurate estimate, but I can not think of how to design an experiment to do that if it comes from something other than a medicine drop or a pipette. In other words, from a fingertip. I don't know how to measure the volume on the fingertip before I touch something and then measure the volume that remains, the difference being what's transferred.

MS. CLARK: Well, let me ask you this, sir. You examined the sock and you saw only the periphery that had not been cut out, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And you never examined the piece of fabric that was the center of the stain, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: Wouldn't it have been of some assistance to you, sir, to look at the inside, the center of that stain in making your estimate of how much blood was actually in it?

PROF. MACDONELL: I don't believe so, no. The stain was as saturated as I believe it could be right up to the outside of the cut-out portion. If you're going to suggest the center was in some way void, then that would have been interesting. But I think they cut it out because it was the heaviest stain to do their testing on.

MS. CLARK: You think, but you don't know?

PROF. MACDONELL: Well, it would be pretty stupid if they took a void.

MS. CLARK: You didn't look at the actual stain itself, did you, sir?

PROF. MACDONELL: Of course not.

MS. CLARK: And so what you're telling us when you're telling us what your estimate is of the amount is your best guess; isn't that right?

PROF. MACDONELL: It's an educated guess based upon experience, yes.

MS. CLARK: Nonetheless--

PROF. MACDONELL: It's a guess, an approximation.

MS. CLARK: A guess?

PROF. MACDONELL: Estimate.

MS. CLARK: You did not quantify the blood in that stain, correct?

PROF. MACDONELL: Yes. I estimated it to be about one drop, possibly a little more.

MS. CLARK: What test did you do, sir, on the inside center portion which you never saw? What test did you perform on that center portion which you never saw to determine precisely how much blood there was in it?

PROF. MACDONELL: I assumed that physics works in California and capillary action--

MS. CLARK: Objection, your Honor. This is nonresponsive. The question was--

THE COURT: The question--I'm going to sustain the Court's own objection to that question. Rephrase the question or move on.

MS. CLARK: Did you conduct any experiment to quantify the exact amount of blood on the cut-out portion of the stain?

PROF. MACDONELL: No.

MS. CLARK: Did you conduct any experiment to quantify the amount of blood in the periphery of the stain that remained on the sock?

PROF. MACDONELL: No tests, no.

MS. CLARK: Now, you examined those socks for the first time on April 2nd, 1995; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: And present with you at the time of that examination were Mark Taylor and Henry Lee, both experts for the Defense, correct?

PROF. MACDONELL: Yes. And there were other people present of course.

MS. CLARK: During your examination?

PROF. MACDONELL: Yes.

MS. CLARK: And who was that?

PROF. MACDONELL: Peter Neufeld and I think it's Greg Matheson. He had custody of the evidence.

MS. CLARK: Greg Matheson had custody of the evidence. He brought it to you; is that correct?

PROF. MACDONELL: I believe he was there all the time we examined the sock. He stepped out I believe at a point when we had shoes out or something like that. He wasn't there all the time.

MS. CLARK: Isn't it true, sir, that you requested that he leave while your examinations were being conducted?

PROF. MACDONELL: No, that isn't true.

MR. NEUFELD: Objection. No foundation.

THE COURT: Overruled.

PROF. MACDONELL: No, that is not true.

MS. CLARK: You did not permit him to remain in the room the entire time you were performing your experiments and your investigation; isn't that correct?

MR. NEUFELD: Objection to a compound question.

THE COURT: Overruled.

PROF. MACDONELL: No, ma'am, that is not correct. I was not giving orders or requests to anyone. I was there to make examinations. What went on between other people, why they came in, why they left was of no concern to me. I did not direct such stains, no.

MS. CLARK: Someone in the room did ask him to leave at some point, did they not, sir, in your presence?

PROF. MACDONELL: I don't remember it. I know he left. I don't know if he was asked to leave or he had to go to the bathroom, but he wasn't there all the time.

MS. CLARK: And he left for a substantial period of time; did he not, sir?

MR. NEUFELD: Objection. Vague as to "Substantial."

THE COURT: Sustained.

MS. CLARK: All right. He was gone for over an hour; was he not?

MR. NEUFELD: Objection. No foundation.

THE COURT: Overruled.

PROF. MACDONELL: I don't believe he was gone anywhere near that long. But to be honest, I was paying no attention. I was examining things, and whether he was there every minute or not, I don't know. I do recall he left for a period. I don't know how long it was.

THE COURT: Let's move on.

MS. CLARK: Then it's your testimony that you do not recall anyone asking him to leave the room. Is that the way--is that the way you remember it, sir?

PROF. MACDONELL: That's the way I remember it.

MR. NEUFELD: Objection. Hearsay, your Honor.

THE COURT: Overruled.

MS. CLARK: All right. Now, with respect to those socks that you saw for the first time on April 2nd, 1995, sir, would you please tell us your understanding of the history of those socks from their date of collection on June the 13th, 1994.

PROF. MACDONELL: My understanding is that they were kept in custody. They were tagged in and out. I really didn't inquire as to the history.

MS. CLARK: Sir, wouldn't you agree that it would be extremely important to know as much as possible about the life history of those socks and how they were handled before you saw them?

MR. NEUFELD: Objection as to what purpose.

THE COURT: Sustained. Question is vague. Rephrase the question.

MS. CLARK: For the purpose of determining or assessing that what you saw was the condition of the socks at the time that they were collected on June the 13th or at the time the blood was first detected at some point thereafter, wouldn't it be important to you to know what those socks had been subjected to between the time of their collection on June the 13th and some 10 months later when you finally saw them on April 2nd, 1995?

MR. NEUFELD: Objection.

MS. CLARK: Wouldn't that be important to know, sir?

MR. NEUFELD: Sorry. Objection as to what the condition is. It's too vague.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Sir, with respect to whether or not those little balls, those little microbes were on the opposite inside surface of the sock that you observed--

MR. NEUFELD: Objection as to "Microbes."

THE COURT: Sustained. Sustained. Counsel, it's not microbes.

MS. CLARK: What did he say?

THE COURT: You said microbes. You've used the term three times now, microbes.

MS. CLARK: Those little balls that you testified to, sir, on the opposite inside surface of the sock. Wouldn't it be important to you to observe the condition, to observe whether or not they were present when the sock was collected on June the 13th or at the time the blood was detected thereafter to know whether or not that condition existed at that time as opposed to when you finally saw them 10 months later, April 2nd, 1995? Wouldn't it be important to you to know what had happened to them in-between those two times?

PROF. MACDONELL: It wouldn't be important to me. I examined them to see what was present. Unless there's some strange handling of the evidence or storage, that's something I would not know and would expect to be documented in some manner and be advised of. But that's more for the attorneys to establish. Then when I'm asked to examine something, that's what I do. I don't know the history of it.

MS. CLARK: Well, sir, then it's your testimony that no, it would not be important for you to know all of the handling and what had happened to those socks from their time of collection until the time you examined them for the purpose of giving more meaning to your observation of those little balls?

PROF. MACDONELL: I believe I answered that and said it could be important, but I do not know what it was.

MS. CLARK: You do not know the history?

PROF. MACDONELL: That's correct.

MS. CLARK: Then you agree that it could be important for you to know that?

PROF. MACDONELL: I just said that.

MS. CLARK: Then wouldn't you also agree, sir, that it would have been important for you to observe the condition of those socks at least as of the date when the blood was first discovered?

PROF. MACDONELL: If they were altered from the time they were discovered until I saw them, yes. If they were kept in pristine condition, no.

MS. CLARK: Sir, and that's my question. Wouldn't it be important to know whether they had been kept in pristine condition or tested, manipulated, twisted and bounced around? Wouldn't it be important to know that if that occurred in-between the date of collection or blood detection and your observation?

PROF. MACDONELL: It might explain what I saw, but it wouldn't change what I saw.

MS. CLARK: I agree, sir. But it might help to explain what you saw; would it not?

PROF. MACDONELL: I'm not explaining what I saw from the standpoint of the history. I'm explaining the appearance as I saw it.

MS. CLARK: And so you can not tell this jury that those little balls that you saw in the opposite inside surface were there when the sock was collected on June the 13th, can you?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Sir, you can not tell this jury how those little balls came--strike that. You can not tell this jury, sir, when those little balls came to be on the opposite inside surface where you observed them on April 2nd, 1995; isn't that true?

PROF. MACDONELL: No. I could tell that.

MS. CLARK: You can tell them when?

PROF. MACDONELL: Yes. It was before I examined them.

MS. CLARK: Yes. At any point before you examined them though, you can not be more specific than that; isn't that right?

PROF. MACDONELL: That's correct.

MS. CLARK: And you can not tell this jury that those little balls came to be on the opposite inside surface on June the 14th, June the 15th, August 10th, September 28th or any other date specifically before the date you examined them on April 2nd; isn't that right?

MR. NEUFELD: Objection. Assumes facts not in evidence. There's no good faith basis for the question.

THE COURT: Overruled.

MS. CLARK: You can answer.

PROF. MACDONELL: I'm sorry. I didn't hear. No. I have no idea when they occurred. They occurred prior to my examination.

MS. CLARK: Did you make any effort to inquire of Greg Matheson as to the history of the socks when he was present with you on April 2nd, 1995?

PROF. MACDONELL: No, I did not.

MS. CLARK: May I have a moment, your Honor?

THE COURT: Yes.

MS. CLARK: Excuse me, sir.

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

MS. CLARK: All right, sir. Now, let me ask you something. Are you aware that phenolphthalein tests were conducted on this sock on August the 4th, 1994?

PROF. MACDONELL: I may have read that. I don't recall that date specifically. I know phenolphthalin (Sic) tests were performed.

MS. CLARK: All right. And there are two types of phenolphthalein tests, correct? Well, maybe more, but at least two.

PROF. MACDONELL: Well, phenolphthalein is reduced to phenolphthalin. When it reacts with peroxidases, it converts back to phenolphthalein. It seems few people can spell the word correctly, but there's a test, phenolphthalein, very sensitive for peroxidases in blood.

MS. CLARK: And--

THE COURT: You asked the question.

MS. CLARK: Well, I'd like--I should have called him way back when.

MS. CLARK: Anyway, Mr. MacDonell, let me ask you, are you aware that there are some phenolphthalein tests that are wet in nature that require the use of diluted water? Excuse me.

PROF. MACDONELL: No.

MS. CLARK: Not diluted water. Distilled water.

PROF. MACDONELL: Diluted water. I've seen it written both ways, but I think most of the tests that I read about recently are orthotolidine, not phenolphthalein. Orthotolidine I believe was what was used when I was there.

MS. CLARK: Okay. Which is a dry method; is that correct?

PROF. MACDONELL: Well, the material that you're testing is dry, and you use a moistening agent, piece of damp filter paper or something to remove from the surface some of the material you're testing and then you use wet reagents. So it's dry, then wet.

MS. CLARK: Are you aware of the kind of phenolphthalein tests conducted on August 4th, 1994?

MR. NEUFELD: Excuse me, your Honor. Objection. I'd ask for a sidebar. I believe there's no evidence of this at this point.

THE COURT: All right. We'll take our break with the jury at this point. Ladies and gentlemen, we'll take our mid-afternoon break at this time. Remember all my admonitions to you. And I will ask you just to go back into the jury room, and we'll get back to you in about probably 20 minutes this time.

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

THE COURT: Let's have it quiet in the courtroom, please. All right. Mr. MacDonell, you can step down. All right. Thank you, counsel. The jury has withdrawn from the courtroom. Miss Clark, where are you going with this?

MS. CLARK: I want to show him the photograph.

THE COURT: No. Where are you going with this? What's the point of discussing phenolphthalein or phenolphthalin testing with this witness? All right. Mr. MacDonell, why don't you step out of the courtroom, please.

(The witness exits the courtroom.)

THE COURT: Where are we going with this?

MS. CLARK: The point, it all relates to the socks, your Honor. There's been a lot that's been done to these socks, one of these, and they use water on the stain and the water is observable in the photograph.

THE COURT: The water is observable in the photographs that were taken by the Defense?

MS. CLARK: No. By the People. The stain was rehydrated is what I'm saying. I'm not running up against the Court's ruling against phenolphthalein if that's counsel's concern.

THE COURT: No. I wanted to know where we're going with this is what I wanted to know. All right. Mr. Neufeld.

MS. CLARK: That's where we're going.

MR. NEUFELD: Are you saying that the inner surface of the opposite side of the sock was tested after a section was cut out with the wet phenolphthalein test--I'm just trying to seek some clarification here--or we're simply talking about that the stain on the outside of the sock where the stain was originally found, if you will, had a phenolphthalein test.

THE COURT: First time I've heard of rehydrating a bloodstain.

MS. CLARK: Want to see?

MR. NEUFELD: I'm sorry.

THE COURT: What was the purpose for rehydrating a bloodstain?

MS. CLARK: They didn't rehydrate purposely. It was in the course of the test using the distilled water. The stain was rehydrated in the process of trying to test it. This is August 4th. They're testing the outside of the sock.

THE COURT: Was this before the cut-out was made?

MS. CLARK: Yeah.

MR. NEUFELD: But it's not on the other side of the sock.

MS. CLARK: No.

THE COURT: But I think her point is going to be, if it's lying flat, that could explain how the substance is on the inside of the opposite side.

MS. CLARK: Well, this is one of many possibilities. This is one. I mean, there's been a lot done to this sock that he doesn't know about, and it's important as he had knowledge, that all the history of the sock and what was done to it is important.

THE COURT: Okay. Now you know. All right. We'll take 15.

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Deputy Magnera, let's have the jurors, please. And, counsel, we're going to go to 4:00 o'clock. Hopefully we'll conclude.

MS. CLARK: I'd love to, your Honor. I was really hoping to in fact.

THE COURT: He's got important things to do, Mr. MacDonell.

MS. CLARK: We'll finish with him by next week.

THE COURT: Or by Friday. No. I'm saying we'll finish.

(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. Mr. MacDonell, would you resume the witness stand, please. And, Miss Clark, you may continue with your cross examination.

MS. CLARK: Thank you, your Honor.

MS. CLARK: Now, when we left off, sir, we were discussing the fact that you were not aware of the history of the sock before you saw it on April 2nd, 1995.

MR. NEUFELD: Object--

MS. CLARK: Do you recall that?

MR. NEUFELD: Objection. He didn't say anything about history.

THE COURT: Overruled.

PROF. MACDONELL: No, I do not know the history prior to that, how it was stored, maintained, no.

MS. CLARK: And you made no effort to determine what the history of the sock was with respect to how it was handled before you saw it on April 2nd of 1995?

THE COURT: All right, we've established that already. Let's proceed.

MS. CLARK: I think I only asked him about Greg Matheson. I would have liked--

THE COURT: Let's proceed.

MS. CLARK: Well, can you tell us, sir, what effort you made to determine what the history of the handling and testing of that sock was before you saw it on April 2nd, 1995?

PROF. MACDONELL: I did not make any determination of the history. My purpose there was to examine it as it was in the condition received.

MS. CLARK: In that case, sir, then you can not tell us whether the condition that you observed on April 2nd was there before August 4th, 1994?

PROF. MACDONELL: No. Of course not.

(Brief pause.)

THE COURT: Miss Clark.

MS. CLARK: Yes, your Honor. I'd ask that this photograph be marked People's next in order, People's 5--

THE COURT: 553.

MS. CLARK: -53?

(Peo's 553 for id = photograph)

THE COURT: Appears to be a photograph of a sock with a q-tip.

MS. CLARK: Do you recognize what's being done in this photograph, sir?

PROF. MACDONELL: Yes, I do.

MS. CLARK: That's a phenolphthalein test, isn't it?

PROF. MACDONELL: Well, it's the sampling prior to the phenolphthalein test.

MS. CLARK: Yes. And the phenolphthalein test is a presumptive test for blood; is it not?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, do you--

MS. CLARK: If you would focus in, Jonathan, on that. Thanks.

MS. CLARK: Do you see that spot there, sir?

PROF. MACDONELL: Well, I did.

MS. CLARK: Used to. Do you see it?

PROF. MACDONELL: I see--yeah. There it comes. I see a spot, yes.

MS. CLARK: All right. Does that appear to be water, sir?

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained.

MR. NEUFELD: No foundation for that.

THE COURT: Sustained.

MS. CLARK: Does it look wet?

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained. Sustained.

MS. CLARK: Appear wet?

THE COURT: Yes.

MS. CLARK: What does it look like to you?

PROF. MACDONELL: Looks like a yellow ellipse.

MS. CLARK: And does it look like liquid?

MR. NEUFELD: Objection, your Honor.

THE COURT: Sustained.

MS. CLARK: Is there a form of phenolphthalein test that uses distilled water, sir?

PROF. MACDONELL: Yes. Certainly. You have to have a solvent, either phenolphthalein or distilled water.

MS. CLARK: And if that is the test being--does that appear to be the test being performed here, sir?

MR. NEUFELD: Objection, your Honor, what appears.

THE COURT: Overruled.

PROF. MACDONELL: As stated before, it appears to me to be the sampling phase. First you sample the material and then you analyze it by adding the reagent to it. This would be just sampling, removing a suspect stain or a portion thereof for testing.

MS. CLARK: Okay. And you remove the suspect stain or portion thereof by adding--by using a damp q-tip to sample the area; is that correct?

PROF. MACDONELL: That's correct. A damp q-tip or whatever. Filter paper you can use also.

MS. CLARK: In this case, they used what appears to be a damp q-tip; would you agree, sir?

PROF. MACDONELL: I would agree it's a q-tip and it apparently has been damped. It should be if it's going to be used.

MS. CLARK: Now, are you aware of the date on which this photograph was taken?

PROF. MACDONELL: No.

MS. CLARK: Now, sir, would it be important to you to know whether as of the date--after the date of this photograph, assumed for the hypothetical that it's August 4th, 1994--

MR. NEUFELD: Objection. There's been no evidence as to when this particular test was made.

THE COURT: Overruled. Overruled.

MS. CLARK: --that the socks were frozen and unfrozen, twisted, cut?

MR. NEUFELD: Objection as to "Twisted."

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Objection as to "Cut."

THE COURT: Overruled.

MR. NEUFELD: At this point.

THE COURT: Overruled.

MS. CLARK: Would you agree, sir, that it would be important to know that after the point of the testing shown in this photograph, the socks had been frozen and unfrozen repeatedly? Would that be good for you to know?

PROF. MACDONELL: Well, again, this is not testing in the photograph. The test followed the photograph. It would not be important for me to know because I saw what I saw at the time I examined it. If you want me to speculate as to what could have caused it, then if I knew certain factors, I might be in a position to speculate.

MS. CLARK: Then you would agree, sir, that your lack of knowledge as to whether or not the socks had been frozen and unfrozen repeatedly would have an impact on your ability to give us some opinion as to how the microbe--the little balls that you saw got to be on the inner side of the sock that you saw on April 2nd, correct?

MR. NEUFELD: Objection, your Honor.

THE COURT: What's the objection?

MR. NEUFELD: Objection as to the form of the question.

THE COURT: Overruled.

PROF. MACDONELL: Freezing and thawing I do not conceive as a mechanism that would allow the things that I observed in the cut-out portion on the opposite side to have been formed. I can't imagine a mechanism by simply freezing and thawing unless you purposely put it in a high-humidity cabinet. That could cause that. I just don't see that that's a factor.

MS. CLARK: So it's your opinion then, sir, that even though you're not aware of how many times it was frozen and unfrozen, you are willing to give the opinion to this jury that that would have no impact on whether or not those little balls would appear on the other side of the sock; is that correct?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Overruled.

PROF. MACDONELL: The statement I made did not say "Have no effect." I said that might explain an effect, but I can not imagine how simply freezing and thawing or the number of times it's done would have any significant effect upon creating what I observed when I looked at them on April 2nd.

MS. CLARK: But you don't know, do you, sir?

PROF. MACDONELL: Of course not.

MS. CLARK: And you can not tell this jury whether or not that's how those little balls came to be on the other side of the stain; isn't that right, sir?

MR. NEUFELD: Objection. Asked and answered twice.

THE COURT: Overruled.

PROF. MACDONELL: I don't know what you mean by "That." You'll have to explain. Is "That" supposed to mean a mechanism? Would you rephrase that, please?

MS. CLARK: You can not tell us, sir, whether or not--you can not state to this jury that the freezing and unfreezing process absolutely did not cause the appearance of those little balls on the inside of the sock that you saw on April 2nd, 1995; isn't that true?

MR. NEUFELD: Objection. Asked and answered twice.

THE COURT: Overruled.

PROF. MACDONELL: No scientist can state absolutes. Of course not.

MS. CLARK: And you did not inquire--you examined these socks with Dr. Lee on April 2nd; isn't that right?

PROF. MACDONELL: That is correct.

MS. CLARK: Did you discuss with him his examination of the socks on February 16th, 1994--5?

PROF. MACDONELL: No.

MS. CLARK: Were you aware of his examination of the socks that he had conducted on February 16th, 1995?

PROF. MACDONELL: To the extent that he just observed them. I do not believe he made a microscopic examination at that time. That is my best recollection.

MS. CLARK: But you do not know?

PROF. MACDONELL: I don't recall further. So I don't know.

MS. CLARK: And you do not know if he during the process of his experiment on February 16, 1995 twisted and pulled the socks in an effort to get a better look at any side of it or any aspect of it, do you?

MR. NEUFELD: Objection. Assumes facts not in evidence.

THE COURT: Sustained. Sustained.

MS. CLARK: Are you aware, sir, of the fact that LAPD set up a microscope for Dr. Lee to use in his February 16th examination?

PROF. MACDONELL: No. I was not aware of that.

MS. CLARK: And in the course of a microscopic examination, sir, in your experience, can it occur that material or fabric will be pulled or twisted in an effort to get a certain area under the field of view?

PROF. MACDONELL: Certainly.

MS. CLARK: And would it be important to know whether that that had occurred on multiple occasions with this particular sock?

PROF. MACDONELL: It could be, but I can't imagine exactly how.

MS. CLARK: But it could add important information, sir, with respect to determining how those little microbes got onto the side of the sock when you observed them in 1995?

MR. NEUFELD: Objection.

THE COURT: Sustained. Sustained. Rephrase the question.

MS. CLARK: I'm sorry. Little balls.

PROF. MACDONELL: They're not microbes. Microbes are alive. Now I forgot the question.

MS. CLARK: All right. Could it be important information whether or not the sock was repeatedly manipulated and twisted during microscopic--repeated microscopic examinations to determine how those little balls got onto the side of the sock when you observed them on April 2nd, 1995?

PROF. MACDONELL: I can't imagine how. I really don't see how manipulating the fabric could create dried balls of red fluid inside of the sock. It may be possible, but I have no idea what the mechanism would be that could cause those to form simply by manipulation. They were dried when--and they were wet and they dried.

MS. CLARK: Let me ask you something, sir. You said you observed one of those little balls to be adherent to the fiber; is that correct?

MR. NEUFELD: Objection. That is not his testimony.

THE COURT: Overruled.

PROF. MACDONELL: I observed several, I think half a dozen at least. We photographed the one that showed the bonding to the fiber the most distinctly.

MS. CLARK: Okay. Is it--sir, based on your examination, one was bonded well enough to photograph; is that correct?

MR. NEUFELD: Objection. That's not his testimony.

THE COURT: Overruled.

PROF. MACDONELL: I think they were all bonded, but this one showed the bonding to a fiber that was also part of the woven thread. That's the reason it was selected.

MS. CLARK: And that's the reason you took only one photograph although you saw six or seven of these little balls; is that right?

PROF. MACDONELL: I didn't take the photographs. Dr. Lee actually clicked them off. I observed them.

MS. CLARK: You observed them, but there was only one photograph taken; is that right, sir?

PROF. MACDONELL: It's the only one that I have seen. I think it's the best representation and I'm sure that's why he enlarged it.

MS. CLARK: Is your answer yes?

PROF. MACDONELL: What was the question? Did I observe just one?

MS. CLARK: No. No. Mr. MacDonell, please listen to the question. I asked you whether you took only--there was only one photograph taken of those little balls that you saw on the inner surface of the sock.

PROF. MACDONELL: I answered that when I said Dr. Lee took it. I did not take any.

MS. CLARK: The question is, only one photograph, correct?

PROF. MACDONELL: To the best of my knowledge.

MS. CLARK: And that one photograph was taken because in your opinion or in your collective opinion, that demonstrated most clearly the bonding of that little ball; is that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, let me ask you something. With respect to that little ball that you saw bonded, what tests did you perform to determine whether it was in fact adherent to the fabric or simply lying in the weave where you saw it?

PROF. MACDONELL: It seems to surround the fiber or the thread-like material to which it is bonded, and it didn't move. So it didn't fall off. We're dealing with something extremely small. We didn't do any testing to dry to abrade it to perhaps fracture it. But it's exceedingly small. We did no actual testing except observation.

MS. CLARK: All right. As a matter of fact, those little balls that you saw--you said six or seven of them?

PROF. MACDONELL: Yes.

MS. CLARK: Did you make any effort to quantify those little balls?

PROF. MACDONELL: As to volume?

MS. CLARK: Yes. As to volume, sir.

PROF. MACDONELL: No.

MS. CLARK: If you took those six or seven little balls and put them all in a purple top tube and stacked them on top of each other, could you see them?

PROF. MACDONELL: Not without a microscope or unless you're extremely myopic.

MS. CLARK: And yet the stain on the outside of the opposite side of the sock you said was 50 microliters, 60 maybe?

PROF. MACDONELL: Yes.

MS. CLARK: And all you had were those six little balls, six or seven little balls that you couldn't even see if stacked up together with the naked eye; is that right?

PROF. MACDONELL: Or grouped, yes.

MS. CLARK: Now, with respect to the manipulation of the sock, sir, you indicated that you--strike that. These socks, they were stretchy, elastic in nature; were they not?

PROF. MACDONELL: Yes.

MS. CLARK: Blood when it dries is not elastic, is it, sir?

PROF. MACDONELL: No.

MS. CLARK: Now, if you were to have blood dry on a sock and then you were to stretch it, blood might flake off, if even in only microscopic amounts. Would that be true, sir?

PROF. MACDONELL: Yes, it is.

MS. CLARK: And if the sock is stretched in some fashion, which causes the blood to flake and then the sock is compressed through storage in a bag, you can--there will be some microscopic or some flaking happening of the blood that has dried on the sock; isn't that correct?

PROF. MACDONELL: That's correct. There should be.

MS. CLARK: And if in fact the blood that has hit the outer surface of the sock has seeped through to the inside, if it rubs against the other side in a dried condition causing--by friction, there will be some flaking as well, would there not, even if only in microscopic in amount?

PROF. MACDONELL: Well, it's even simpler than that. It wouldn't have to flake off and go through the sock because when it dries, it's through the sock to begin with. So could flake off from the inside of the outside surface at that point. And then if it landed on the inside, you would have some flakes on the side opposite the inside. Yes, that could happen.

MS. CLARK: And you indicated that you were not present when Dr. Lee did his examination of the socks on February 16th, 1995; is that right, sir?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, on the date that you did the examination with him, did you turn the socks inside out?

PROF. MACDONELL: I think we did after the initial photographs were taken.

MS. CLARK: And when you say the initial photographs were taken, are you talking about the photographs of the little balls?

PROF. MACDONELL: Yes. We--I believe we took all the photographs before we did any what you could call stretching or manipulation of the socks. We left them quite flat as we took them out.

MS. CLARK: Do you know whether anyone turned those socks inside out or twisted them in any fashion before you made that examination on April 2nd, 1995?

PROF. MACDONELL: No, I don't.

MS. CLARK: Would that be information that you would like to have, sir, in forming your opinion as to how those little balls got onto that side of the sock?

PROF. MACDONELL: No.

MS. CLARK: You don't think that would be important to know?

PROF. MACDONELL: No. Not unless you added many factors such as if the socks were wet and you turn them inside out. That might make a difference. But you're exposing the inside where I detected these small balls of red material to the outside at that point. So you're defeating the purpose of transfer.

MS. CLARK: Uh-huh.

PROF. MACDONELL: That would no longer be in contact with the area that was stained. So you're losing ground that way if you're trying to transfer them.

MS. CLARK: No. You're--let me ask you this, sir. You don't know whether they were wet on some occasion after the blood was detected on August 4th with that q-tip, correct?

MR. NEUFELD: Objection. No foundation for that.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Well, let me--

MS. CLARK: Your Honor, I have a series of three photographs I'd like to show to the witness. I'm going to show them to counsel. Be marked People's 554--

THE COURT: 554.

MS. CLARK: --555 and 556.

(Peo's 554, 555 and 556 for id = photographs)

MS. CLARK: 554, your Honor?

THE COURT: Yes. 554 is the first one.

MS. CLARK: All right. Sir, I'm going to show you a photograph. Do you recognize--do you recognize the person in that photograph, sir?

PROF. MACDONELL: Yes, I do.

MS. CLARK: Who's that?

PROF. MACDONELL: That's Dr. Henry Chung Lee.

MS. CLARK: All right. Did you see him perform the manipulation with the sock that he used in this photograph in your presence on April 2nd?

PROF. MACDONELL: No, I did not.

MS. CLARK: Did anyone--were you ever--

MR. NEUFELD: Your Honor--I'm sorry, your Honor. Can we have a sidebar?

THE COURT: Let me see the photographs. With the court reporter, please.

(The following proceedings were held at the bench:)

MR. NEUFELD: Very simple. I have no objection to the photographs. When she said, "Did you see him do this," I'm sure it was unintentional by the Prosecution, but also, it could have happened on April 16 when he was twisting the socks and this guy didn't see it. As long as she--I will stipulate these pictures were taken on February--whatever they were.

THE COURT: Okay.

MR. NEUFELD: Just so the jury isn't left with a mistaken--

MS. CLARK: Sure. No problem.

(The following proceedings were held in open court:)

MS. CLARK: All right. These photographs we will stipulate were taken on February 16, 1995.

THE COURT: All right. Is that agreeable to the Defense?

MR. NEUFELD: Yes. On a date when Professor MacDonell wasn't there.

THE COURT: That's correct.

MS. CLARK: So you did not see this manipulation by Dr. Lee, correct?

PROF. MACDONELL: I wasn't there. No, I did not see them.

MS. CLARK: And he didn't do that kind of manipulation again in your presence on April 2nd; is that right?

PROF. MACDONELL: If he did, I didn't see him do it. I don't believe he did.

MS. CLARK: I'm showing you now People's 555. Again, you recognize Dr. Henry Lee?

PROF. MACDONELL: Yes, I do.

MS. CLARK: This is his manipulation of the sock on February 16th, 1995 again?

PROF. MACDONELL: Now, that appears more a manipulation than the first one. The first one, I'd say he was just holding it up, not manipulating it. This one, it appears he is either turning it inside out or at least manipulating it in some fashion.

MS. CLARK: And is that something that you also did on April 2nd, 1995?

PROF. MACDONELL: We turned them inside out, yes.

MS. CLARK: In the manner in which Dr. Lee is doing?

PROF. MACDONELL: Well, in any manner you can to turn socks inside out. I don't think there's much choice. This looks about the only way to do it.

MS. CLARK: All right. Now, showing you People's 556. Does that appear to be a photograph of Dr. Lee taking a picture through a microscope, sir?

PROF. MACDONELL: Yes. He's taking a picture through a stereobinocular microscope using the right ocular.

MS. CLARK: And again, we stipulate this is February 16th, 1995; is that right?

PROF. MACDONELL: I don't know.

MS. CLARK: No. I'm asking counsel.

PROF. MACDONELL: I'm sorry.

MR. NEUFELD: Oh, yes.

MS. CLARK: So it would appear that he did examine the socks under a microscope on that date, correct, sir?

PROF. MACDONELL: Yes. A low-power stereobinocular. I think the maximum magnification is about 25 diameters with most stereobinocular microscope.

MS. CLARK: Now, the microscope that you used on April the 2nd, 1995 had what power magnification?

PROF. MACDONELL: It was 7 to 70.

MS. CLARK: You do not know or do you know for a fact--have you ever seen this microscope up close, sir?

PROF. MACDONELL: Not this particular one, no. I have one, but not exactly the same model.

MS. CLARK: So are you sure when you say that this--the greatest magnification, power on this microscope would be 25 times?

PROF. MACDONELL: No. That's why I said they're usually 7 to 25.

MS. CLARK: Okay. Now, the photograph that you've shown us here--the photograph that you've shown us here of the little ball on the inside of the sock, that was taken on April 2nd when you were present, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You don't know of any such photographs that were taken on February 16th by Dr. Lee, do you?

PROF. MACDONELL: No, I--

MR. NEUFELD: Objection. No foundation for that question. He didn't even know it was there.

THE COURT: Sustained. Sustained.

MS. CLARK: Have you been shown any photographs taken by Dr. Lee on February 16th showing the little balls on the inside of the sock?

PROF. MACDONELL: No, I have not.

MS. CLARK: And the photograph that you produced here in court showing the little ball on the inside of the sock, the one that you have shown is what magnification?

PROF. MACDONELL: I would approximate the magnification of the actual print to well over 100 diameters, but I have not made that calculation. I do not know the diameter of the first picture that I saw, which is a four by six. And if I don't know how big the magnification is on this, I could ordinarily make it--make the correction. But without knowing a starting point, I can't proportion it up. I'm estimating from memory of what I saw, that that would be about a hundred or more diameters. Dr. Lee could tell you exactly.

THE COURT: All right. Miss Clark, our record is rather sloppy here. You're referring to photographs of red balls. Which exhibit are we talking about here? I think it's 1278 I think. I'm not certain.

MS. CLARK: 1278?

PROF. MACDONELL: Yes.

MS. CLARK: Because one is--

THE COURT: You're referring to it, counsel. So you tell us which one you are talking about.

MS. CLARK: 1279.

PROF. MACDONELL: It's 1278.

MS. CLARK: That one.

THE COURT: Is that large one 1278, Mr. Gordon?

MR. GORDON: Yes, your Honor.

THE COURT: 1278.

MS. CLARK: Is that 1278?

MS. CLARK: Okay. The one we're referring to, sir, is the one with the little ball in the blue circle.

PROF. MACDONELL: Yes.

MS. CLARK: That's 1278.

PROF. MACDONELL: Correct.

MS. CLARK: Okay. You were not shown any such photographs that were taken by Dr. Lee on February 16th, 1995, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: To your knowledge, do any exist?

MR. NEUFELD: Objection.

THE COURT: Sustained. He hasn't seen any.

MS. CLARK: All right, sir. Now, were you aware that on August 4th, the same day the socks were tested, given the presumptive test for blood, the first step of which you saw the sampling of which you saw in the photograph, Susan Brockbank also examined those socks for hair and trace. Were you made aware of that?

PROF. MACDONELL: I believe I read that, yes.

MS. CLARK: Okay. And that has no impact on your opinion as to how those little balls got there?

PROF. MACDONELL: No, it does not.

MS. CLARK: And you were also made aware then that Greg Matheson performed serological testing for PGM subtyping on that sock after August the 4th. Were you made aware of that, sir?

MR. NEUFELD: Objection. It's misleading. May we approach?

THE COURT: Overruled. Rephrase the question though.

MS. CLARK: Greg Matheson performed PGM subtyping on the--that stained area of the sock after August 4th. Were you made aware of that?

MR. NEUFELD: Objection, because he cuts out a portion and removes it.

THE COURT: Yes. Rephrase the question.

MS. CLARK: Were you made aware of the fact, sir, that in order--that to perform PGM subtyping testing, Greg Matheson cut a portion out of the sock in order to perform that testing?

PROF. MACDONELL: Yes.

MS. CLARK: And that he had to handle the sock in the process of doing that?

PROF. MACDONELL: Obviously.

MS. CLARK: And that has no impact on your opinion as to how those little balls got there?

PROF. MACDONELL: No. No, it doesn't.

MS. CLARK: All right. Sir, now you prepared a report in this case; did you not?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And that report is dated July 11th, 1995?

PROF. MACDONELL: I believe it is.

MS. CLARK: You've been working for the Defense since August of `94; is that right?

PROF. MACDONELL: Well, that's when they first contacted me. I actually didn't have anything to do until I'd made a trip to Albany I think in December.

MS. CLARK: And this report is the only one that you have prepared in this case, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And it details only your observation of the one area of the sock where you saw those little balls, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: You examined both socks, didn't you?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And there's nothing in your report about the other sock; is that right?

PROF. MACDONELL: No, there isn't.

MS. CLARK: Or any of the other stains on the sock that you did observe?

PROF. MACDONELL: That's correct.

MS. CLARK: So it's just--so your report is confined to the one stain that you testified to here in court; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, if I understand your testimony correctly, sir, the inside of that stain--I'm going to try and number these surfaces, make it easier. The outside portion of the stain where the blood was first received is surface 1, inside, surface 2, the inside of the opposite side, surface 3. Okay? It's your testimony, sir, that the transfer to surface 3 came from surface 2; is that right?

PROF. MACDONELL: Yes. It--if it's transferred from that surface. Again, I did not determine what that material is. The only way it could have gotten there is for a liquid that is red to have gone from surface 2 to surface 3.

MS. CLARK: And now, you've testified that you did not perform any tests on the cut-out area, on that cut-out fabric from the center of the stain to quantify how much blood was in it?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, if the--as a matter of common sense, would it be fair to state, sir, that the more blood you have on the inner aspect of that stain, the more little balls you expect to find on the opposite side?

MR. NEUFELD: Objection. Vague as to "Inner aspect."

THE COURT: Sustained. You just finished numbering the sides. Why don't you--

MS. CLARK: All right. The more blood, the more liquid or blood that you have on the area of surface 2, the inside of the sock, the more little balls you're going to expect to see on surface 3; is that right?

PROF. MACDONELL: As you've said, it would be more likely. It's common sense. Certainly.

MS. CLARK: And of course, this assumes that the little balls on surface 3 can be attributed to the stain on surface 2, correct?

PROF. MACDONELL: Absolutely.

MS. CLARK: And you have not said that you make that assumption; have you not, sir?

THE COURT: You can not say that you haven't said it; have you not?

MS. CLARK: No. See? Clear to me.

THE COURT: All right.

MS. CLARK: You indicated that--I believe in your direct testimony, you've made the statement that if the stain in surface 2 is related to the little balls on surface 3, that they would have gotten there when wet. Do you recall that?

PROF. MACDONELL: Yes.

MS. CLARK: But you can not say that the little balls on surface 3 are related to the stain on surface 2, can you, sir?

PROF. MACDONELL: No, I can't.

MS. CLARK: Now, it would be true, would it not, that the more blood you have on surface 2, the more little balls you expect to find on surface 3?

PROF. MACDONELL: Only if the little balls are blood.

MS. CLARK: If they are.

PROF. MACDONELL: Yes. Certainly.

MS. CLARK: And you found only six or seven; is that right?

PROF. MACDONELL: That's the number of what I would call balls which look like a wet material that dried adhering to fibers, yes. I saw other red spots.

MS. CLARK: Let's just talk about those little balls for a sec. You only brought in a photograph of one of them, correct?

THE COURT: I think we've asked this question now three times, counsel.

MS. CLARK: Why weren't all of them photographed, sir?

PROF. MACDONELL: I have no idea. We photographed the most representative. Dr. Lee, again, took the pictures, and that's a question you'd have to direct to him. I observed them.

MS. CLARK: Now, you made no attempt to quantify the volume of those six or seven little balls, did you?

MR. NEUFELD: Objection.

THE COURT: We've asked that question already.

MS. CLARK: Okay. You indicated that there were also other little flakes?

PROF. MACDONELL: There are many red spots that show up in the photograph that has been introduced that are clearly little red areas. And if the microscope was adjusted in its depth of field, in other words, focused, you would lose the one that we have photographed and then you would see others. So they're clearly evident. There are red areas in there, and those are the areas to which I made reference.

MS. CLARK: But they are not photographed, are they, sir?

PROF. MACDONELL: Yes, but they're out of focus.

MS. CLARK: So you can't see them in the photograph that you took?

PROF. MACDONELL: You can see them, but you can't resolve them.

MS. CLARK: So did you make any attempt to have a photograph taken that would resolve them so the jury could see them?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: Did you make any effort to take a photograph that would have those flakes that you saw in good resolution?

MR. NEUFELD: Objection. He's not talking about flakes.

THE COURT: Overruled.

PROF. MACDONELL: The photograph that's introduced shows the best representation of the drying of a red fluid. Other red spots could be flakes as you just stated. They could have been other of the red balls we saw. I can not tell because they're so far out of focus. They are not resolved.

MS. CLARK: Though these little balls are a very important aspect of your testimony; are they not, sir?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained.

MS. CLARK: All right. Sir, in your terminology, a swipe is different than a compression; is that right?

PROF. MACDONELL: To the extent that one involves lateral motion, the other involves compression. They are both transfer mechanisms.

MS. CLARK: They are both methods of transfer. Is that what you said?

PROF. MACDONELL: I said they're both transfer mechanisms.

MS. CLARK: Nevertheless, are they separate and distinct mechanisms of transfer?

PROF. MACDONELL: Yes. As opposed to other means of staining such as dripping or projection.

MS. CLARK: Well, you took great pains to explain to this jury, did you not, that this was a compression and not a swipe; is that right?

MR. NEUFELD: Objection.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: You went to some length in your testimony, sir, to describe for this jury how this was a compression and not a swipe?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained. Sustained. Rephrase the question.

MS. CLARK: Sir, were you attempting to explain to this jury the difference between a swipe and a compression with regard to your observation of the stain on this sock?

PROF. MACDONELL: Well, I thought I did. I didn't attempt. I thought I explained it clearly enough, the difference, yes.

MS. CLARK: And why did you want to explain to them the difference between a swipe and a compression?

PROF. MACDONELL: So they would know they're both surface. I think I was asked if it was a swipe initially or that came up. So I differentiated between the two. I said I looked to see if there were any trailings or featherings to see if it was a swipe. The difference between the two is really not significant. It's just a matter of my classification.

MS. CLARK: If it's not significant, sir, then why did you draw a distinction before the jury?

PROF. MACDONELL: Because there is a distinction.

MS. CLARK: Then some transfers are swipe and others are compression; is that right, sir?

PROF. MACDONELL: That is correct.

MS. CLARK: And they are distinct in your opinion?

PROF. MACDONELL: They're different. One involves lateral motion. The other does not. That's the extent of the difference.

MS. CLARK: Okay. So a swipe could occur if I move my ankle across a wet surface; is that right?

MR. NEUFELD: Objection. Vague as to the "Wet surface."

THE COURT: Sustained.

MS. CLARK: A swipe could occur if I move my ankle against a wet wound?

PROF. MACDONELL: Certainly.

MS. CLARK: Now, your report, sir, is an accurate summary of your findings with respect to the sock a; is it not?

PROF. MACDONELL: I believe so, yes.

MS. CLARK: And you took pains to make sure that it accurately reflected your findings in this case; did you not?

MR. NEUFELD: Objection as to "Pains."

THE COURT: Overruled.

PROF. MACDONELL: I prepared it as accurately as I could at the time. I have no reason to suspect there's any error.

MS. CLARK: And you signed the report; did you not?

PROF. MACDONELL: Yes.

MS. CLARK: And you reviewed the report before signing it I take it?

PROF. MACDONELL: I usually do.

MS. CLARK: And you examined that report before you testified; did you not?

PROF. MACDONELL: Not recently. I did it I think two trips ago.

MS. CLARK: You prepared that report, sir, based on your observations of April the 2nd, 1995; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: And in that report, you documented what your observations were?

PROF. MACDONELL: To some extent, yes.

MS. CLARK: But it was an accurate summary; was it not?

PROF. MACDONELL: I believe it to be.

MS. CLARK: Do you have a copy of your report here, sir?

PROF. MACDONELL: Yes, I do.

MS. CLARK: Would you mind getting it out, please?

MS. CLARK: Too much stuff.

MR. NEUFELD: One moment, please.

(Brief pause.)

THE COURT: All right. Proceed.

MS. CLARK: Thank you.

MS. CLARK: Sir, let me direct your attention to paragraph 4. Did you not write in this report, sir, when the sock is laid flat, the stain described in .2 is directly below the stained area described in .1, the only reasonable conclusion therefore is that the fluid that caused these stains was swiped against the outside of the left side of the sock? That is what you wrote in your report; is it not?

PROF. MACDONELL: That is correct.

MS. CLARK: And you considered that to be an accurate depiction of what you observed on April the 2nd, 1995; is that correct?

PROF. MACDONELL: That's what I wrote, yes.

MS. CLARK: That's what you wrote. And yet, you testified to the fact that you now believe that to be a compression and not a swipe. Wasn't that your testimony, sir?

PROF. MACDONELL: That was my testimony.

MS. CLARK: Now, sir, wouldn't you agree that with respect to the differentiation that you have made, the distinctions that you have indicated you made between swiped and compression, that was an important distinction; was it not?

PROF. MACDONELL: That's not important at all. As I said, swiping shows there is a lateral component to a compression. They're both transfer mechanisms. Compression occurs in swiping. And I wrote "Swiping" here. It does not matter whether it said compression or swiping. This pushing of blood or any flood into a fabric is a compression.

MS. CLARK: And yet--

PROF. MACDONELL: Swiping merely means there's lateral movement accompanying it. When I looked at it here, it appeared to be swiping. I have since seen enlarged photographs that we took that show that the swiping appearance which is on the surface of the fibers seems to be fairly uniform on both sides. So now I would say it's more likely a compression only. Both are compression. One has lateral movement. I described lateral movement as well.

MS. CLARK: All right. Did you take any notes at the time that you made your observations of this sock to document what you saw?

PROF. MACDONELL: Yes. Very--very few. Dr. Lee was describe.

MS. CLARK: You personally took notes, sir?

PROF. MACDONELL: Yes. Very--

MS. CLARK: Did you turn them over to the Defense?

PROF. MACDONELL: Yes.

MR. NEUFELD: They have been turned over to the Prosecution, your Honor.

MS. CLARK: No, they have not.

THE COURT: All right. We'll take this up later. Proceed.

MS. CLARK: May I see those notes, sir?

PROF. MACDONELL: (The witness complies.)

MS. CLARK: Thank you.

PROF. MACDONELL: You're welcome.

MS. CLARK: Tell me where in those notes, sir, you indicate that there was no lateral movement in the stain that you characterized in your report as a swipe?

PROF. MACDONELL: I don't characterize it either way.

MS. CLARK: And tell me where in your report you demonstrate or you document your observation that there was no lateral movement.

PROF. MACDONELL: I don't believe I did.

MS. CLARK: And tell us where in your report you document the observation of voids that you've testified to here in court.

PROF. MACDONELL: I don't believe I did that either.

MS. CLARK: Now, the lack of lateral movement and the appearance of voids were the indicia that you testified to as evidence that this was a compression and not a swipe. Isn't that your testimony?

PROF. MACDONELL: That's correct. And when I indicate voids for descriptive purposes, that's one thing. But I don't have to indicate them to know what I'm seeing. So I know what the meaning of the term is. And that's why I wouldn't bother to put there are voids here, there are voids there. That is part of seeing a compression transfer or a lateral transfer.

MS. CLARK: But you did not put down "Compression transfer" in your report, did you, sir?

PROF. MACDONELL: No. It was written for attorneys. Not scientists.

MS. CLARK: Sir, you are aware of the fact that counsel has retained you as an expert; isn't that right?

PROF. MACDONELL: I hope so.

MS. CLARK: And you are aware of the fact that the report that you give to them is turned over to the People as well before you testify?

PROF. MACDONELL: Certainly it is.

MS. CLARK: You filed no addendum to your report to reflect the change from swipe to compression, did you?

PROF. MACDONELL: There's no change. They're both transfers.

MS. CLARK: They are both transfers, but you made a distinction, you made a point of telling us it was a compression and not a swipe; isn't that right?

PROF. MACDONELL: That is the way it appeared at the examination. The photographs I examined later showed it to be more uniform, and, therefore, I concluded it was more likely simply a compression. It could still be a swipe.

MS. CLARK: And you filed no addendum to indicate to the People that you were going to change from a swipe that you indicated in your report to a compression that you testified to here in court; isn't that right?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: What effort did you make, sir, to inform the People of the fact that you weren't sure if it was a swipe or a compression, but you were leaning towards compression?

MR. NEUFELD: Objection. Irrelevant as to what is assumed by the People.

THE COURT: Sustained.

MS. CLARK: Sir, knowing that your report said a swipe and said nothing about a compression, wouldn't you agree it was very misleading not to make an effort to inform--

THE COURT: Sustained. Argumentative, counsel.

MS. CLARK: You did not write any new report to indicate that you were uncertain as to whether it was a swipe or that you had changed your mind to say now that it was a compression?

PROF. MACDONELL: From July 11th, I haven't had time to read my initial report. I've been traveling. I have not made any addendum, no. There's no correction to be made.

MS. CLARK: No correction to be made because it still could be a swipe. Is that your testimony?

PROF. MACDONELL: It's a matter of interpretation. If you agree that the fine blood on the surface of the fibers is uniform on each side of that elliptical stain, then it's more likely compression. It's a compression mechanism. If it's a swipe, it could be that the leading edge and the trailing edge are basically the same geometry. It's a distinction that is really in my mind totally irrelevant.

MS. CLARK: So to you, it makes no difference whether you call it a swipe or compression. Is that your testimony, sir?

PROF. MACDONELL: A swipe is a compression with lateral motion.

MS. CLARK: Do you recall how many times in your testimony on direct examination you said that this was a compression and not a swipe?

PROF. MACDONELL: I may have said it several times. I have no idea how many.

MS. CLARK: And if that is the case, sir, that you said it several times, what would be the point of that if it were unimportant to distinguish between the two?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained.

MS. CLARK: If it makes no difference, sir, then why testify before this jury repeatedly that it was a compression and not a swipe if it doesn't matter?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Overruled.

PROF. MACDONELL: So they would be reminded and understand it.

MS. CLARK: But you didn't make any effort to tell this jury that it didn't matter whether you call it a swipe or a compression until just now; isn't that right, sir?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained.

MS. CLARK: You did not tell the jury before cross-examination that it didn't matter whether it was a swipe or a compression, did you, sir?

PROF. MACDONELL: No, I did not.

MR. NEUFELD: Objection.

THE COURT: Overruled.

MS. CLARK: Now, is it--now, the notes that you have before you that were taken--made contemporaneously with the observations on April the 2nd, contain no description of little balls, do they?

PROF. MACDONELL: No. Again, I was not describe. I made a couple of very simple sketches and Dr. Lee made all the tests and made all the detailed notes.

MS. CLARK: And can you tell us, sir, if you have his notes with you?

PROF. MACDONELL: I believe I do have his notes.

MS. CLARK: Please look at his notes and tell us whether Dr. Lee makes any--has any description in his notes of little balls, lateral swipe or voids.

PROF. MACDONELL: (The witness complies.) No. He only mentioned that he takes photographs of them.

MS. CLARK: He mentions that there are photographs taken of the holes; isn't that right, sir?

PROF. MACDONELL: Photographs taken, and he indicates little tiny dots within the cut-out area. He states blood-like materials were observed on the inner surface of the other side of this cut, and he's got many little tiny dots, and it says photographs taken, photo micrographs.

MS. CLARK: And where is the description in his notes of lateral transfer--of lateral swipe? Excuse me.

PROF. MACDONELL: He doesn't use those words. He says a reddish brown color around--he shows it around the cut-out area.

MS. CLARK: Uh-huh. There is no note there concerning lateral swipe; isn't that right?

PROF. MACDONELL: Not on this page, no.

MS. CLARK: Nor on any page of his notes?

PROF. MACDONELL: No, not that I recall.

MS. CLARK: Right. And there's no mention in there of voids either, is there?

PROF. MACDONELL: There was mention of voids and lateral transfer or transfer, but not in his report. We discussed it.

MS. CLARK: There was verbal discussion on April the 2nd. Is that what you're saying, sir?

PROF. MACDONELL: There was.

MS. CLARK: But there is no written record to document that; isn't that right?

PROF. MACDONELL: Not that I'm aware of.

MS. CLARK: And the only written record that you made concerning your observations of the socks with respect to the nature of the stain and the little balls is the report dated July 11th; isn't that right?

PROF. MACDONELL: That's correct.

MS. CLARK: So between April the 2nd and July 11th, you made the observations on April the 2nd, but you wrote nothing down concerning your observation of the little balls, the voids, the lateral swipe until July 11th; is that right?

PROF. MACDONELL: That's correct. I wasn't in the country.

MS. CLARK: So you wrote that report from memory; is that right?

PROF. MACDONELL: Yes. And a very, very few lines that I wrote in my description which are in your possession.

MS. CLARK: I'm sorry?

PROF. MACDONELL: The few notes that I made are in your possession. I referred to them.

MS. CLARK: No. I gave them back to you, didn't I?

PROF. MACDONELL: Oh, I'm sorry. Yes, you did. Thank you.

MS. CLARK: But these notes do not contain--excuse me, sir--a description of evidence, do they?

PROF. MACDONELL: No. Just sketch.

MS. CLARK: Matter of fact, those notes just document your receipt of the evidence and the date and time and what you got; isn't that right?

PROF. MACDONELL: Well, it lists the time that was spent examining the two items, 42a and b, according to my notes, and the length of time.

MS. CLARK: Now, your examination on April the 2nd was done with a very high intensity light; is that right?

PROF. MACDONELL: Yes. High intensity.

MS. CLARK: And microscope; is that right?

PROF. MACDONELL: Correct.

MS. CLARK: And you will agree, will you not, that the observation of blood on those socks was a difficult one in view of the dark color of the fabric, sir?

PROF. MACDONELL: Not when you've got good high intensity illumination. It would be difficult in this room, yes. But under the conditions that you would use for an examination, it was not difficult. It was straightforward.

MS. CLARK: And, again, though, when you're talking about high intensity light, can you explain to the jury what you mean by that?

PROF. MACDONELL: High intensity is more lumens per square centimeter. A pocket light like this can give extremely high intensity right at the end, much more than a thousand watt bulb would give here on the ceiling if the bulb was on the ceiling. So high intensity is the concentration of light in a given area, and it's expressed physically as lumens per square centimeter.

MS. CLARK: So it would be--if we were to light up this courtroom with that kind of high intensity light, would we all be wearing sunglasses?

PROF. MACDONELL: We ought to be. I would be if I could or I'd close my eyes.

MS. CLARK: Now, with respect to the distinction between swipe and compression, sir--

(Brief pause.)

MS. CLARK: You did indicate that you observed crime scene photographs, correct?

PROF. MACDONELL: Yes, I did.

MS. CLARK: Can I approach?

THE COURT: I think you'd better.

(The following proceedings were held at the bench:)

THE COURT: We are over at the sidebar. Where are you going?

MS. CLARK: I want to talk to him about--

THE COURT: You're about to wind it up, aren't you?

MS. CLARK: I am. I want to finish with him today so badly. So that's why. I wanted to show him like one picture of the crime scene and ask him all the opportunities for swiping or compression transfer demonstrated by the conditions there. And I think another--a fair area of inquiry, given the fact he's gone into some lengths--he testified to the manner in which the stain could have been applied. You know, counsel would like to confine all this to conspiracy and all kinds of sinister things, but this witness has not allowed him to be so limited, and I think it's only fair that we allow for the possibility--

THE COURT: You're going to ask him to look at the crime scene photos and say, is there anything here that looks like it could have caused this transfer? Is that what you are going to say?

MS. CLARK: No. Really what I'm asking is, look, if the Defendant is there, he pulls back her neck, he steps back over the bloody neck or he steps or he brushes the ankle up against the blood step, isn't that a likely source of the blood that you see on there or likely manner in which it can be applied.

THE COURT: Sounds like argument to me.

MS. CLARK: Well, but--okay.

THE COURT: Off the record.

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

THE COURT: Hold on, hold on, hold on. This is another issue.

MR. NEUFELD: She said in front of the jury she never received those notes from the witness.

MS. CLARK: You know, what they call a statement is two pages of notes. He got three. He's got three.

THE COURT: Wait, wait, wait. We're not doing this now. We're not doing this now.

MR. NEUFELD: Right there, three pages. You crossed it out because there were three pages.

MS. CLARK: I didn't see that.

THE COURT: All right. I just want to resolve this issue first. This issue with the crime scene photos, I don't think so.

MS. CLARK: Okay. Let me ask--if I ask him and he says he has seen them, can I ask him a hypothetical about how the compression or swipe could have occurred? Your Honor, if you don't allow me to ask questions that lay the foundation, how can I argue?

THE COURT: No. He said blood--you know, a rubbing motion across the fiber. That's enough to say any number of things.

MS. CLARK: You know--wait, wait, wait. How can I be cut off from asking questions of how a compression or swipe could have occurred?

THE COURT: You can ask that question; how can these things occur, in your experience, how do these things occur?

MS. CLARK: Okay.

MR. COCHRAN: Enough help for them; don't you think?

MS. CLARK: That was help?

(The following proceedings were held in open court:)

THE COURT: All right. Proceed. All right. Miss Clark, you may conclude.

MS. CLARK: All right, sir. Now, in characterizing the stain on the outside as a swipe and then changing your testimony in court here to a compression, were you--

MR. NEUFELD: Objection, your Honor, to the characterization.

THE COURT: Sustained. Rephrase the question.

MS. CLARK: You initially characterized the stain as a swipe, is that correct, in your report?

PROF. MACDONELL: In the report, yes.

MS. CLARK: And then you came in and you testified to say that it was a compression and not a swipe; is that correct?

PROF. MACDONELL: No. It could be a swipe if the leading trailing edges are uniform as they appear to be in the enlarged photographs that I found that Dr. Lee had taken.

MS. CLARK: So you're saying it could be either one at this point?

PROF. MACDONELL: Yes. They're the same thing. They're both compression transfers. One has a little more lateral motion than the other.

MS. CLARK: One has a little more pressure than the other, doesn't it, sir?

PROF. MACDONELL: Not necessarily, no. You have to have pressure or you won't get any transfer at all.

MS. CLARK: All right. So compression then could be from touching?

PROF. MACDONELL: Yes. That's compression.

MS. CLARK: Could be from pressing?

PROF. MACDONELL: Touching is pressing.

MS. CLARK: Okay. So you don't--what you're saying, sir, is that there's no particular amount of pressure applied. Any pressure will indicate compression; is that right?

PROF. MACDONELL: There has to be sufficient pressure to transfer a liquid to the surface, and that's very minimal when you have a liquid.

MS. CLARK: In characterizing it as a compression instead of a swipe in your direct examination testimony, were you attempting to be more helpful to the Defendant?

MR. NEUFELD: Objection.

THE COURT: Sustained. Argumentative.

MS. CLARK: Well, in attempting to charac--excuse me. Not attempting. In characterizing the stain as a compression as opposed to a swipe, were you attempting to make it sound more sinister, Mr. MacDonell?

MR. NEUFELD: Objection, your Honor.

THE COURT: Overruled.

PROF. MACDONELL: I am a scientist, not an advocate, and I am not changing, modifying or correcting anything for anyone's benefit except to clarify the matter to the jury. That's my purpose here.

MS. CLARK: Nevertheless, you have--would you answer the question, sir? Do you think in your mind that saying it is a compression makes it sound more sinister than a swipe?

MR. NEUFELD: Objection. Argumentative.

THE COURT: Sustained. Sustained.

MS. CLARK: You saw photographs of the crime scene; have you not?

PROF. MACDONELL: Yes, I have.

MS. CLARK: And let me ask you this, sir. If someone wearing the socks that you saw were to step near to the body of the victim Nicole Brown Simpson, near enough for the ankle bone to come in contact with her bloody hand, could that cause a compression transfer?

PROF. MACDONELL: Certainly.

MS. CLARK: Could it also cause a swipe?

PROF. MACDONELL: Yes.

MS. CLARK: If she were to reach a bloody hand out and touch her thumb or finger or hand to the ankle of Mr. Simpson wearing those socks, could that cause a compression or a swipe?

MR. NEUFELD: Objection. No foundation.

THE COURT: Sustained. Rephrase the question. Rephrase the question.

MS. CLARK: Oh. If Nicole Brown Simpson reached out a bloody hand to touch the ankle of the murderer wearing those socks, could that cause a compression or a swipe transfer?

MR. NEUFELD: Objection. No foundation.

THE COURT: Overruled.

PROF. MACDONELL: Certainly it could. Anything that has blood on it can either be projected and touch the area that's stained or this area that's stained could have come in contact with it. It's simple transfer.

MS. CLARK: Well, for example, I see the way you're sitting, sir. I can't demonstrate this obviously. But if you were to--the jury--

MS. CLARK: Can the jury see?

MS. CLARK: If you were to move your knee back, sir--

PROF. MACDONELL: My knee?

MS. CLARK: Yeah--to where your ankle bone, the bony protrusion of your ankle was on top of your knee, would that--could that produce a compression or a swipe?

PROF. MACDONELL: If one surface was wet, yes.

MS. CLARK: Now, you noted, sir, that the stain appeared to be in the area of the ankle where there would be the bony protrusion of the ankle, correct?

PROF. MACDONELL: It appeared to be in that general area. I don't know the socks were put on, if it would be at the outer-most portion or the apex of that circular area. But in that general area, yes. It very well could be at the extreme of the ankle bone.

MS. CLARK: And by the "Extreme," you mean the highest point, the point that protrudes the most?

PROF. MACDONELL: Correct. On either side of the leg. There's one on each side.

MS. CLARK: Right. And by the way, sir, by looking at the sock, could you tell whether it was the right or left sock, sock a that we're talking about here?

PROF. MACDONELL: No.

MS. CLARK: Okay. By the way--and did you happen to have a look at a photograph of the socks in the condition in which they were found on the bedroom floor?

PROF. MACDONELL: I've seen some pictures of it, yes.

MS. CLARK: Let me--this has been marked so many times, I hate to mark it again, but--it's People's 127 already marked. I have one handy.

THE COURT: All right. 127.

MS. CLARK: Let me ask you, sir, if you've seen this photograph before.

PROF. MACDONELL: Yes, I have, or one just like it.

MS. CLARK: Now, you've seen the socks in person, correct?

PROF. MACDONELL: Yes, I have.

MS. CLARK: And do they appear to be inside out in this photograph, sir?

THE COURT: Would you like a magnifying glass?

PROF. MACDONELL: I've got one, but I don't need it. I honestly can't tell. If I had the socks to compare to this, I might be able to. But I--I don't think so. It's just heavier fabric in the heal and the toe. But they certainly--the upper portion seems to be inside out, but the--to tell whether the whole sock is inside out or not that's lying down, I honestly can't tell you.

MS. CLARK: Nevertheless, they are lying flat on the--somewhat crumpled, but lying on the floor, correct?

PROF. MACDONELL: One is. One is more or less folded over. I don't know which side is up or down. It would appear that it is the left side of the one that is spread out the most that is down, but the other one is kind of wadded up.

MS. CLARK: And so the jury knows what we're referring to, I'm going to put it on the monitor. I wanted you to see it, sir, because I don't know if your monitor is going to give you as much resolution as you get looking at it up close. Now, when you said that one appeared to be more crumpled up, you were referring to the one up on top; were you not, sir?

PROF. MACDONELL: Yes, I was.

MS. CLARK: All right. And--now, let me ask you a question. If you have--may be just a matter of common sense, but if you have a bony protruding area on an item of clothing like around the ankle bone, you're wearing a sock, that area is sticking out, that area would be more likely to get blood assuming blood is in the area of the feet. Would that be a fair statement?

PROF. MACDONELL: Yes, if it was transferred.

MS. CLARK: Uh-huh.

PROF. MACDONELL: But spattering or something would be not dependent upon that, but brushing against something, yes, the bone sticks out further.

MS. CLARK: Right. So the bone area where you found that bloodstain would be the place that would be most likely to receive blood from a transfer if you're in the area of blood or a bloody body, correct?

PROF. MACDONELL: Yes. If that transfer again is in--right on the ankle bone. I think it would make a difference whether you had it on the right or left foot though. I think there's a slight difference. But I don't know. It's in that area. I don't know that it's at the peak of the bone as I say. Of course, the sock is elastic. So you could adjust it so it was or was not.

MS. CLARK: But it was in that general area, you would agree, sir?

PROF. MACDONELL: Yes, I would.

MS. CLARK: So if that sock was worn to--in the commission of a murder and the feet were in the area of a bloody victim, an area that would swipe the bloody victim, then the area where you found the stain is the area most likely to receive that swipe or compression, correct?

MR. NEUFELD: Objection. Compound.

THE COURT: Overruled.

PROF. MACDONELL: I would say yes.

MS. CLARK: Now, let me ask you a couple other questions, sir. As a matter of practicality, if someone is sweating and they are wearing socks of this kind of nylon nature, as a practical matter, is it not more difficult to take socks off of a sweaty foot?

MR. NEUFELD: Objection, your Honor. No foundation.

THE COURT: Sustained.

MS. CLARK: Have you ever taken off--have you ever had--

MR. NEUFELD: Objection.

MS. CLARK: Well, I don't know.

MS. CLARK: Mr. MacDonell, have you ever had the experience of wearing nylon socks and exerting yourself to the point where you were sweating?

PROF. MACDONELL: I used to wear work socks in the oil fields where I grew up and did a lot of manual labor, but I do not honestly remember ever sweating to the point where my socks got wet, and I didn't wear dress socks in the oil fields. I don't sweat when I wear dress socks. And if I can avoid it, I never wear them.

MS. CLARK: Okay. So you've never had the experience yourself, sir, of ever sweating in dress socks?

PROF. MACDONELL: Not that I can remember, no.

MS. CLARK: Well, can I ask you, sir, if in your experience you have ever had occasion to note whether wet socks or sweaty feet made thin socks like this more difficult to remove? Do you have any experience in that?

MR. NEUFELD: Objection. No foundation.

THE COURT: She is asking for the foundation at this point. Do you wear these kind of socks?

PROF. MACDONELL: No.

THE COURT: Men have very particular preferences about their socks. Next question.

MS. CLARK: I'm sorry. All right. If someone has bloody hands, sir, and they attempt to take a sock off by maybe inserting the thumb, the thumbs inside and the fingers on the outside, if one or more of the fingers are bloody and pressing into the sock, will that cause a compression?

MR. NEUFELD: Objection. Speculation at this point.

THE COURT: Overruled.

PROF. MACDONELL: Well, certainly. If you have bloody hands and touch any fabric, you can transfer blood to it.

MS. CLARK: Okay. And if you were to touch--if there were wet blood on a piece of fabric that you pressed, that would cause a compression as well, correct?

PROF. MACDONELL: If the blood was already on the fabric?

MS. CLARK: Right, and it was wet.

PROF. MACDONELL: You would squash the blood out of the fabric a little laterally, yes. It wouldn't cause a transfer unless it was in contact with something else. If you're transferring it to the thumb, yeah, you could transfer it from the fabric to the thumb, if that's what you mean.

MS. CLARK: What I'm saying though, sir, is that if there's wet blood on a surface and you press it, will you cause a compression?

PROF. MACDONELL: If you press it, you cause a compression, yes.

MS. CLARK: And if wet blood is on a surface and you brush it, will that cause it to appear as a swipe?

PROF. MACDONELL: Yes, it will. At that point, we would call a swipe pattern produced by a wiping action.

MS. CLARK: And can you tell the difference, sir, between whether or not a blood drop has been dripped and swiped later? You know what I mean? Let me make that more clear. Can you tell the difference between whether or not a drop of blood is dripped onto a surface and while still wet, swiped between blood that is initially swiped on?

PROF. MACDONELL: If there's enough blood to remain on the surface, it doesn't quickly soak right into the fiber of the fabric, you could laterally transfer it and cause a swipe pattern, yes.

MS. CLARK: In which case, what you would detect would be a swipe pattern as opposed to a drip and a swipe?

PROF. MACDONELL: I thought I was just answering the drip and swipe. You dripped it--first of all, you're talking about just a drop of blood on a fabric?

MS. CLARK: Uh-huh.

PROF. MACDONELL: If it falls on the fabric and you very quickly create a lateral motion, you should get a swiping of that blood which will leave blood on the top of the fibers, yes.

MS. CLARK: And then when you come to analyze it, you would see a swipe and not a drip and a swipe? That was my question.

PROF. MACDONELL: Yes. That's correct. You couldn't tell the difference if it was done quickly. That's correct.

MS. CLARK: And the same would be true I take it for a compression; is that right?

PROF. MACDONELL: Yes. If the blood is still fluid enough, you can get a lateral motion and it would look like a swipe.

MS. CLARK: And likewise, sir, if it was with respect to a stain that you call a compression, if the blood was still fluid and then compressed with the hand or a finger, you would--then it would look like a compression to you; would it not?

PROF. MACDONELL: Well, you just said if it was a compression. So it would look like a compression, yes.

MS. CLARK: As opposed to a drip and then a subsequent compression?

PROF. MACDONELL: I think that would be a very difficult thing to differentiate with any degree of accuracy.

MS. CLARK: Okay. Now, you--all right. The--those little balls on surface 3, you do not know--those were not typed to determine whether they were blood, correct?

PROF. MACDONELL: As far as I know, they never have been.

MS. CLARK: And you don't know obviously then--

MR. NEUFELD: Objection, your Honor. Ask for a sidebar.

MS. CLARK: Assuming they are blood, sir, you don't know whose blood they are; is that correct?

PROF. MACDONELL: That is correct.

MS. CLARK: Now, you indicated that you saw--you determined--without ever having seen the actual piece of fabric cut out of the center of the stain, you gave us an estimate that the entire stain would have been 50 to 60 microliters of blood, assuming it was blood.

PROF. MACDONELL: That's correct.

MS. CLARK: Okay. And that what you saw on the opposite side in terms of the little flakes and the little balls, you never attempted to quantify; is that right?

PROF. MACDONELL: Other than to say there was an extremely small volume, no.

MR. NEUFELD: Objection. Asked three times.

THE COURT: Actually this is the fourth time. You're right.

MS. CLARK: All right. So let me ask you a few questions about your background.

MS. CLARK: Do we have to quit exactly at 4:00?

THE COURT: Yes, we do. We have a doctor's appointment that we have to keep.

MS. CLARK: Oh, that's right. That's right. That's right. All right. Would you like to break now, your Honor? I have one very short area I intend to complete tomorrow. I won't be able to complete it before 4:00 o'clock.

THE COURT: Why don't you finish what you can.

MS. CLARK: Okay.

MS. CLARK: All right, sir. You stated that you were a professor of chemistry at Milton College in Wisconsin for a period of time?

PROF. MACDONELL: Yes, I was.

MS. CLARK: Yeah. Is that college now closed, sir?

PROF. MACDONELL: Yes, it is.

MS. CLARK: When it was opened, it was a small liberal arts college; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: About what? 350, 500 students?

PROF. MACDONELL: Well, I don't think they ever had 500 while I was there. More like 250 to 300 I would think.

MS. CLARK: Now, let me ask you, at the time that you became a professor, you had an undergraduate degree, correct?

PROF. MACDONELL: That's correct.

MS. CLARK: And you became the head of the department of chemistry at Milton College; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: Now, when you were head of the department, sir, the entire chemistry department consisted of who?

PROF. MACDONELL: Me. I was it. I replaced two people and offered 12 courses.

MS. CLARK: Okay. Did you give yourself assignments?

PROF. MACDONELL: I gave a lot of assignments.

MS. CLARK: I mean as head of the department. That was a joke. All right. You taught criminalistics at El Myra College in New York?

PROF. MACDONELL: Yes, I did.

MS. CLARK: And you left there in 1983; is that right?

PROF. MACDONELL: That's correct.

MS. CLARK: Okay. You were you said adjunct. But that's a part-time professor; is that right?

PROF. MACDONELL: Part-time, rank of full professor. I believe they had adjunct, associate adjunct, assistant. It varies from one school to another.

MS. CLARK: Okay. So what--were you teaching at night, sir?

PROF. MACDONELL: Yes, I was.

MS. CLARK: Was that a continuing education course you were teaching?

PROF. MACDONELL: Continuing education courses. I taught quite a few.

MS. CLARK: Okay. Was that two to three days a week?

PROF. MACDONELL: It depended. It was usually two nights a week and--yeah. It was two nights a week every semester in the summer.

MS. CLARK: You taught one time at Corning College; is that right?

PROF. MACDONELL: For quite some time. Corning Community College.

MS. CLARK: Okay. Yeah. That's a two-year college; is that right, sir?

PROF. MACDONELL: Yes.

MS. CLARK: Though they don't give any degrees other than AA?

PROF. MACDONELL: I'm not sure about that. I think they have, since I left, negotiated some form of getting a four-year degree or a masters program through John J. College in New York. I'm not sure about that. But basically it's a two-year school, part of the State University of New York.

MS. CLARK: Okay. And, again, there you were teaching part-time?

PROF. MACDONELL: Yes.

MS. CLARK: And was it night school again, continuing education program?

PROF. MACDONELL: It was days in the beginning in 1960 and then it went through different transitions and ultimately ended up in the evening program, yes.

MS. CLARK: Okay. And was that, again, two to three nights a week?

PROF. MACDONELL: It varied depending on the semester. But two nights a week was the most I could do.

MS. CLARK: Now, with respect to either El Myra College or Corning, sir, would you say that either one of them had a formal forensic science program?

PROF. MACDONELL: They did at the time. They had a criminal justice program at both places. Department of criminal justice I think is what they called it. They also had a forensic science certificate.

MS. CLARK: Okay. But when I say a formal forensic science program, sir, I'm talking about something akin to formal program for the giving of a degree in criminalistics or forensic science.

PROF. MACDONELL: They gave a degree with a major in criminal justice. I don't remember the exact title of it. That's what it was.

MS. CLARK: But the criminal justice program is like the administration of justice, isn't it?

PROF. MACDONELL: Well, that's part of it I guess, yes.

MS. CLARK: It is not primarily a science program, is it?

PROF. MACDONELL: No, but it satisfies certain science requirements or at least it did.

MS. CLARK: It's primarily a course work--a study of course work that deals with the criminal justice system; isn't that right?

PROF. MACDONELL: In general. But my work was primarily in the forensic area of physical evidence and crime scene investigation and microscopy and so on.

MS. CLARK: Here, sir?

THE COURT: Yep. Ladies and gentlemen, we are going to take our recess for the afternoon session. Please remember all of my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. Take care of yourselves. Stay well. If there's anything we can do in that respect to help you out, let us know. All right. Get plenty of exercise, fresh air, see the doctor when you need to see the doctor. All right. As far as the jury is concerned, we'll stand in recess until 9:00 o'clock. After we clear the courtroom, we'll get Mr. Bosco's status report. And, professor, we'll see you tomorrow morning, 9:00 o'clock.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. We needed to take up the Bosco matter.

MR. NEUFELD: I was just wondering whether or not there's two housekeeping matters with regard to the last witness that I could take up before you enter the Bosco matter.

THE COURT: Sure.

MR. NEUFELD: Thank you.

MR. DARDEN: Before we do that, your Honor, Miss Clark has already left the courtroom.

THE COURT: Okay. Well, summon her back.

MR. NEUFELD: Thank you. I'll wait until she comes back.

THE COURT: All right. I understand we have counsel for Mr. Bosco, Miss Esinski and Mr. Sullivan, correct?

MR. SULLIVAN: That's correct, your Honor.

MS. ESINSKI: Good afternoon, your Honor.

THE COURT: All right. Good afternoon, counsel. Would you state and spell your names for the record, please.

MR. SULLIVAN: Yes, your Honor. Last name is Sullivan, S-U-L-L-I-V-A-N.

MS. ESINSKI: Your Honor, Halina Esinski, first name is spelled Halina, H-A-L-I-N-A, last name E-S-I-N-S-K-I.

THE COURT: All right. Good afternoon, counsel. Thank you for making yourselves available on such short notice.

MS. ESINSKI: Good afternoon, your Honor. At this time, we've just been retained and we have not even had a chance to speak with our client, your Honor, because he has been in the courtroom. We would like a little bit of time--

THE COURT: Well, take him out of the courtroom.

MS. ESINSKI: We would like a little bit of time. Because the shield law is involved in this matter, we would like a little bit of time to be able to brief him and then to have a hearing on the matter. It's at the Court's disposition as to when you would like to hear that matter, but can we put it over to another date as opposed to this afternoon?

THE COURT: Sure. How much time do you think you need?

MS. ESINSKI: Well, we'd like to submit something in writing by tomorrow, maybe be heard after the court session on Wednesday afternoon. Would that fit in with your schedule?

THE COURT: I think we have the continuation--would you be available tomorrow at 4:00 or 4:15?

MS. ESINSKI: We could, your Honor, your Honor.

MR. SULLIVAN: That would be fine.

THE COURT: Okay.

MR. SHAPIRO: That's acceptable.

THE COURT: And, Miss Esinski, Mr. Sullivan, have you had the opportunity to confer with Mr. Shapiro regarding the issues that they seek to raise with your client?

MS. ESINSKI: Just very briefly, your Honor. We've just--

THE COURT: All right. Then I'm going to direct counsel as soon as we break on this issue then to confer--to meet and confer to see if there's any narrowing down we can do on the issues involved.

MS. ESINSKI: Thank you, your Honor.

THE COURT: All right. Is there anything else that we can take up as to the Bosco issue? All right. I've been provided with--counsel, do you have a copy of the article that's referred to?

MS. ESINSKI: Your Honor, we don't have a copy of the article or a copy of the subpoena. We have nothing.

THE COURT: Okay:

MR. SHAPIRO: I gave a copy to Mr. Mirell. So I'll arrange to give her a copy.

THE COURT: All right. I think my staff has a copy of the article in question.

MS. ESINSKI: Thank you, your Honor.

THE COURT: All right.

MR. NEUFELD: Your Honor, while we're waiting for Miss Clark, I think I have to--we have to resolve this scheduling problem now with tomorrow. I'm assuming that Professor MacDonell will certainly be finished within an hour tomorrow morning. It was our intention to call if not Tracie Savage as our next witness, certainly Michelle Kestler. However, Michelle Kestler, at least tomorrow. We'd like to resolve the 402 issue as it applies to Tracie Savage. As was pointed out to you by my colleague, Dean Uelmen, we wish to add to the hopper if you will for your thinking about the various factors, Michelle Kestler's outside the presence of the jury testimony on that limited issue.

THE COURT: Okay.

MR. NEUFELD: There was some mention that she has an appointment or she has I think a funeral or something in the afternoon. So perhaps we could do at least the outside the presence of the jury portion of her testimony earlier tomorrow, but we do not have another--and we can play the Peratis tape. But, you know, that doesn't take up that much time. But after that, our next witness is Dr. Gerdes, and we're not ready yet with Dr. Gerdes. We'll be ready with him by Wednesday, by Wednesday morning. But we are not ready. We were planning on having these other witnesses Monday and Tuesday.

THE COURT: I'm just thinking, I can't believe, although I've been wrong before, that Mr. MacDonell will take up the full morning session.

MR. NEUFELD: No. I think you're right. He won't. Miss Clark represented that she only has a few minutes I believe.

THE COURT: All right.

MR. GOLDBERG: Your Honor, is the Court aware that Michelle Kestler is not going to be available until probably late tomorrow afternoon, she's attending a funeral?

THE COURT: No. I'm aware she has a funeral obligation in the afternoon. What's her status in the morning?

MR. GOLDBERG: Well, I think she's leaving for the funeral and will not be available after 11:00 and then will probably be available again after 4:00 was her best estimate.

MR. NEUFELD: Since her testimony at least to make out this offer should not take more than 20 minutes--

THE COURT: How about if we start with her at 9:00, do that out of the presence and bring the jury down? That sounds like the best way to do it.

MR. NEUFELD: Right.

MR. GOLDBERG: Well, your Honor, the other possibility would be to require counsel to make an offer of proof as to what she's going to say or they think she's going to say outside the presence of the jury that would be relevant to the issue as to--

THE COURT: I think we've already gone over that though. If you recollect, Mr. Goldberg, this morning, we were just sort of thinking out loud that Miss Kestler could testify to the--any inquiry that was made of her, any knowledge that she has or any action that she took regarding leaks. I mean, there are things that as the then acting head of the laboratory and now the head of the laboratory, that she can speak to with regards to this issue. So I'm convinced there's enough to at least ask her some foundational questions with regards to these issues.

MR. GOLDBERG: What your Honor might not be aware of is that counsel did speak to Miss Kestler at length. So they know specifically what she would say and the extent of her knowledge on many of these issues.

THE COURT: Well, that's not the point though, counsel. The point is, for me to go further on the Tracie Savage issue, they want to offer more evidence with regards to the materiality of the issues concerned. And maybe I misunderstood the comments of other counsel, but I consider this to be a very serious and very sophisticated issue. So there.

MR. NEUFELD: So we'll do that at 9:00 then?

THE COURT: So why don't we take that up at 9:00. I assume, Mr. Uelmen, we're talking about a relatively brief direct examination, 20 minutes or so.

MR. UELMEN: Yes. Actually, Mr. Neufeld will conduct it. It should take no more than 20 minutes, half hour.

MR. NEUFELD: I have to do that because if it's any longer, I have to deal with Professor MacDonell who's already been out here three times, and I assure the Court that that's what we're talking about.

THE COURT: Okay. All right. So tomorrow, we'll take up Michelle Kestler first, we'll finish with Mr. MacDonell, we'll play the Thano Peratis tape, and then if we haven't resolved the Tracie Savage issue yet, we may run out of witnesses. But even if we have the Tracie Savage issue--well, I don't know how long that could take.

MR. UELMEN: There is one other issue that your Honor may be able to resolve today. In addition to the tape, we would like to present the Thano Peratis grand jury testimony. I don't know that that has been resolved yet.

THE COURT: No. That hasn't been offered formally to me. It's been mentioned, but nobody has cited--nobody has argued the admissibility or non-admissibility of the grand jury.

MR. UELMEN: We can do that now.

THE COURT: All right.

MS. CLARK: Then may I be excused, your Honor?

THE COURT: No. We need to discuss one other matter. All right. Let finish Mr. Neufeld's--do you need to go?

MS. CLARK: Yes, I do.

MR. NEUFELD: Okay. Then let's take care of this now then.

THE COURT: All right.

MR. NEUFELD: Your Honor, two items. One is, in front of the jury, Miss Clark erroneously represented to this jury that Prosecution did not receive the notes of Professor MacDonell from the April 2nd visit and inspection of the socks. That was just flat out wrong. I'm not going to attribute a motive. I have no idea what was in her mind, but it's flat out incorrect. I have given the Court a signed copy of an acknowledgment of receipt of discovery signed by Mr. Darden on July 17th, 1995, in which, if you see, item no. 3 on that sheet are the laboratory work sheets of Herbert MacDonell dated 4-2-95. In fact, when the report was typed by a member of Mr. Cochran's office, she mistakenly said there were two pages of notes. When Mr. Darden looked at the notes, he observed that there were three. And so he crossed out the 2 and he wrote in the 3. The three pages of notes were inspected again by Miss Clark this afternoon. She has really--I mean, I think it's just completely inappropriately--tried to prejudice Mr. Simpson by suggesting to this jury that the Defense did something tricky in not turning over those notes.

The notes were turned over. There's no question they were turned over. If by chance Mr. Darden didn't get them to Miss Clark or Miss Clark may have misplaced them, I have no idea where this inadvertent mishap occurred. But the bottom line is, those notes, the very same notes that he just showed to Miss Clark during the cross-examination were turned over to Mr. Darden on July 17th, 1995, and he signed for them. And I believe, your Honor, that at this point in time, what has to be done is, this jury has to be told specifically that that was erroneous, that in fact, those notes had been turned over on July 17th.

MR. COCHRAN: 12th.

MR. NEUFELD: No. It's July 17th. Those notes had been turned over on July 17th to Mr. Darden and that he signed for them, and there is a receipt to prove it. I would ask for that. I would also ask in addition, your Honor, that--because I think to make that kind of remark in front of the jury is incredibly reckless and is a reckless disregard for the truth when she should know better--that it warrants a monetary sanction as well from the Court.

THE COURT: How much do you suggest?

MR. NEUFELD: I suggest $250, your Honor, which was the last sanction she received. I also suggest a sanction, your Honor, against Miss Clark for having blurted out or attempted to blurt out that she was impeaching Professor MacDonell with a case after on--before direct examination, we set ground rules, your Honor set ground rules that she was not allowed to mention any cases at all without first approaching for a sidebar. That warning was reiterated this afternoon just before I began my--I'm sorry--just before I completed by direct examination and Miss Clark began her cross-examination, and your Honor affirmed that to her. She knew it darn well and she ignored it, having been warned twice. And I think that also warrants a sanction, your Honor, the amount of which I can leave up to the Court. But I think--

THE COURT: Well, let me ask you this, Mr. Neufeld. If you recollect, when you brought that matter up at the sidebar--and if you recollect, I'm the one who I think invited us over there in the first place--I indicated that I would take that matter under submission, the request for sanctions once I saw the testimony, see--saw what it was and determined the--how bad a violation it was.

MR. NEUFELD: Right.

THE COURT: And do you want to expound upon how bad a violation you felt that was or what the damage was to your client as a result of that?

MR. NEUFELD: Your Honor, the only point I would make is, there was a suggestion based by bringing up a case in her remark about, "Well, didn't you testify in this case that," and then she mentioned the name of a case, there was an inference that she was in fact asserting at that point that he was somehow testifying differently here in Court than he had been in some other case. No. 1, that's not true. No. 2, you looked at the transcript in fact that she was referring to and saw that one had absolutely nothing to do with the other.

THE COURT: No. He said the same thing. He said it's tough to see blood on dark fabric is what he said.

MR. NEUFELD: Well, that's--what I'm suggesting is, by her then trying to say to him, "Isn't it a fact that you said something in this case"--she didn't get a chance to actually get out what it was because that's when you cut her off and asked for a sidebar. But the jury is left with the impression that either it's a more extreme statement or it's a different statement. It's something other than what the witness articulated from the witness stand. That's the whole point of trying then to refer to someone's testimony in another case. Otherwise, it wouldn't be brought up because it wouldn't be impeachment. That's how lawyers get to refer to other cases. The jury by this time is already primed because it's been a technique utilized by lawyers on both sides for impeaching witnesses; that when they hear the person start referring to some other case in your testimony, they believe they're about to hear impeaching contradictory testimony, which they didn't hear here. Granted it is not the most substantial act of misconduct on the part of the Prosecutor in this case, and I'm not asking that the Court treat it as such. But I do believe that in terms of--in terms of your own desires to be even-handed and to maintain order here, that if the Prosecution were warned twice not to do it and did it anyway, that some type of sanction is appropriate. I think frankly, what she did, vis-à-vis the notes, is a far more serious matter because it did--there's no question in my mind that it does immediately and directly prejudice Mr. Simpson and certainly Mr. Simpson's lawyers by suggesting that we by trickery didn't turn over certain notes that we were required by law to turn over when in fact they had been turned over.

THE COURT: All right. Miss Clark.

MS. CLARK: I have never seen law practiced this way with lawyers asking for monetary sanctions against the other side. Never. Never. I am dismayed and I am embarrassed and I am ashamed of my profession when I see it practiced like this. I would never ask for a monetary sanction to be imposed against any member of Defense counsel, not one. That's for the Court to do if the Court deems it appropriate. But I would never ask for such a thing, and I think Mr. Neufeld should be ashamed of himself. Now, with respect to the discovery violation, your Honor, I was deceived. The witness referred to notes. I've never seen any notes. I didn't know what he meant. When he said "Notes," what he actually meant was simply a document that introduced the fact that he had received the evidence at a certain point on a certain date, described what that evidence was and then two pages of diagrams. He called those notes. I didn't know that. When I say "Notes," I think of written documentation like Dr. Lee made detailing observations of what he saw. There was no such thing. Now, when he said notes, I was surprised because I did not characterize what he had as notes. When he showed me what he had, I realized that the first page on which he had writing I had never seen. Never seen. So as far as sanctions go, which goes to good faith or not, I had extremely good faith. I had never seen that before. Nevertheless, I didn't make a big deal about it. Quite the contrary. What I did was to minimize it in front of the jury and point out the fact that those quote, unquote notes are nothing more than two diagrams and a description of the evidence and the date he received them, and he agreed that that was so. And we further pointed out that those quote, unquote notes made no characterizations of what he saw, did not detail his observations or his conclusions or any observations that he made of the socks or anything that went on. So it is appropriately before the jury accurately exactly what that is. Talk about diminimus? That is very diminimus. Had the witness not characterized something as notes, which I would never have characterized in that manner, that exchange would never have occurred. I was taken by surprise. I had not seen that first page. I don't consider it a big deal now that I see what that first page is, and that is why I didn't ask to approach and ask for sanctions against counsel at that very moment. I could have. I could play the same game they're playing and every nitpicky little violation, I demand sanctions and I demand they be put in jail and I demand they be held in contempt. I don't do that. I don't need to do that. I can just practice law. I can just try my case without playing these little games here about nanny, nanny, nanny and neiner, neiner and who's got the last sanction, who's going to pay money this time. This is--this is sickening, you know, what we've descended to in this case. And Mr. Neufeld stands before you because the witness characterized something as notes that no one else would so characterize, and because I'm taken by surprise by that, that in questioning him about it because I see something I've never seen before, and stand before you and say that deserves monetary sanction, first of all, those words should never leave his mouth. Second of all, to make the mountain out of the molehill that this is ridiculous. But I was taken by surprise by the witness' characterization. The page I saw I had never seen before. It has now been accurately assessed in front of the jury. And I don't know what kind of impact the Defense would like to have, but I can guarantee this Court that I will bring out with questioning from the witness that the two diagrams that he referred to I had seen before. And if the Court wants me to further inquire of the witness whether or stipulate that that was turned over, that one page of document, receipt--I've never seen it, but if the Court wants me to indicate to the jury in some manner or stipulate that it was turned over on July 17th, I will do so. I don't have any problem with that. But a sanction? I mean, I think that we have really gotten into the outer limits here. With respect to the case that was cited, your Honor, that case simply cited in support of what the witness was saying. And it was very clear I wasn't impeaching him, because what my statement was, as I recall it, is that he said yes, it's difficult to observe blood on dark clothing, and I said, "Yes. And didn't you so testify in the case of People versus Briggs," totally consistent with what he said here. It was corroborative. And I wanted to discuss with him the circumstances of that case as--by way of analogy. The Court's precluded me from doing it so far, but I think it's relevant because he went to some lengths to try to visualize the blood for the jury because of the difficulty they would have in seeing it, and I think that's an important point to make.

He didn't do that in this particular case, but it could have been done. In any case, that's all it was. It's corroborative of him, not impeaching of him at all. So what is the damage done there? There is none. I inadvertently forgot to approach. And had I intended to impeach the witness or do something damaging to his credibility with it, I think it would have occurred to me sooner to approach. However, in light of the fact that it was simply corroborative of what he was testifying to, I didn't see this as a harmful thing. And counsel concedes--

THE COURT: But do you recollect being directed on at least two occasions that if you were going to refer to a transcript, that before you did so, you were to ask to approach so that I could rule upon whether or not it could be used for that purpose? Do you recollect that?

MS. CLARK: Yes, I do, your Honor. I do. And I should have done that. And I simply forgot. And as the Court recalls, I did do so on a subsequent occasion with respect to another case. But I forgot. I forgot. This has been--this has been a very contentious bit of testimony. There's been a lot to be concerned with and a lot of argument back and forth about what the witness can testify to and what kind of questioning is going to be permitted, and so I forgot. I'm human.

THE COURT: All right. Thank you, counsel.

MR. NEUFELD: Your Honor?

THE COURT: I'm sorry. Hold on a second. Mr. Darden, do you acknowledge that you received a copy of the three pages of Professor MacDonell's work sheets that were dated April 2nd?

MR. DARDEN: All that I can do is this, your Honor. Whenever I've given or provided discovery by the Defense, I look at the documents. I count the pages. I don't know that--I don't recall what the notation is on this document.

MR. NEUFELD: The Judge has the original. Here you go.

THE COURT: It's the third item.

MR. DARDEN: What I see is laboratory work sheets of Herbert MacDonell dated 4-2-95 and three pages. When I heard the witness say notes, I didn't recall having seen any notes. I didn't equate his use of the word "Notes" with lab work sheets. But I count the pages and I look at the documents when I receive them from the Defense. And so I certainly received a three-page document relating to the witness' lab work as they related to the sock. And I would indicate this as well.

Once I receive these documents, I hand those documents to a law clerk. I don't keep them here in court. I turn them over to a law clerk immediately so that they can be documented as having been received upstairs. They're supposed to be circulated to Miss Clark and myself. That does not always happen.

THE COURT: I don't know, Mr. Darden. If I were a trial lawyer who had the job of cross-examining an expert witness from the other side, I would certainly want to see every note that was ever produced or anything that had been produced by way of discovery.

MR. DARDEN: That's absolutely correct, and I agree with you 100 percent in that regard.

THE COURT: So doesn't that sound--doesn't this sound to you mildly implausible?

MR. DARDEN: Well, Judge, if you look at that 3, the "3" written on that paper--I believe I'm the one that wrote that 3. I corrected the two pages. So obviously I'm paying close attention to that. But there's 40,000 pages of documents and transcripts and other things in this case. We assume that we get everything. I am often surprised to find additional things like some stuff I found on Christian Riechardt just Friday. I was amazed to find that. But it's been upstairs for weeks. It happens. I just don't think that every violation is--you know, warrants this type of reaction from the Defense or reaction from the Court. This is litigation and these things happen. I mean, I've seen Mr. Neufeld approach witnesses on direct with documents he's never shown us. I mean, it happens. It just happens.

THE COURT: All right.

MR. NEUFELD: Your Honor, just two very brief remarks if I may, please.

THE COURT: Two.

MR. NEUFELD: Okay. One is, she chose to make it an issue in front of the jury. She could have at that moment asked to approach the sidebar and didn't do that. And I think that exacerbates the whole problem.

THE COURT: Well, I have the transcript of the entire discussion, which goes on for all of three lines. It's not a huge discussion.

MR. NEUFELD: I understand that. But there was still--the suggestion was made in front of the jury that didn't have to happen that way.

THE COURT: That's correct. I agree with you that the assertion that the notes had not been turned over is clear in the record and is incorrect. I agree with you 100 percent.

MR. NEUFELD: And the second thing, your Honor, is, I agree that perhaps lawyers shouldn't be asking for monetary sanctions. But one--but Miss Clark's memory is somewhat failing her on this point because she on more than one occasion at sidebars for the volume of my voice was suggesting that the Court impose sanctions against me. And, your Honor, all I'm--I just feel that perhaps I reacted to her and what she did here because of the suggestions and her request for sanctions against me on earlier occasions. And she's right, that it is sad that that has to be the situation. But it is in that context that I made that remark, your Honor. The only other thing I had to say, your Honor, about the other aspect, which was the referring to the case, I think that the fact that it didn't impeach and she knew it wouldn't impeach makes the blurting out of the case all the more inappropriate. Thank you.

THE COURT: All right.

MS. CLARK: Your Honor, may I?

THE COURT: If you must.

MS. CLARK: Very briefly. This goes to the expert's opinion and the fund of knowledge that he draws on for his expertise. And so prior case work that tends to corroborate or support his opinion is fair--is fair grist for the mill in cross-examination of an expert.

THE COURT: But the problem is--I don't care so much about that. I agree there are many things that you can cross-examine an expert about, his or her qualifications being a very broad area. I agree with that. I think you could have more obliquely approached that particular area regarding the difficulty of seeing blood spots on dark materials. That's not the issue. The issue is the Court's direction to counsel that before any transcript was to be used, that you were to approach sidebar and ask for direction from the Court. That's the problem. What I can't do at this point is--I've apparently used the wrong word search inquiry here and I keep coming up with the wrong cites to the transcript. I want to review exactly what was said, the context in which it was done. At the very least, tomorrow, I'm going to instruct the jurors that the inference that the notes had not been turned over was in fact incorrect, that they had in fact been turned over in a timely manner to the Prosecution and that the jury should disregard any negative inference to Mr. Simpson and his Defense counsel. Secondly, I'll take the matter of monetary sanctions or other sanctions under advisement until I've had the opportunity to check the transcript. All right. Anything else? Yes. Anything else?

MS. CLARK: Nothing, your Honor.

MR. UELMEN: The grand jury, you want to do that now?

THE COURT: Yes.

MS. CLARK: Your Honor, for the record, I never asked for Mr. Neufeld to be sanctioned because of the volume of his voice. The Court will recall when that occurred.

THE COURT: I think that was my idea.

MS. CLARK: That's right.

MR. NEUFELD: Your Honor--

THE COURT: But in any event, let's not--no. This issue is over unless both of you want to get sanctioned without any recourse to the transcript. All right. Grand jury testimony. Mr. Uelmen.

MR. UELMEN: I think we can handle this quite briefly, your Honor. The Defense trial brief dated July 20th with respect to the admissibility of the former testimony of Thano Peratis addressed the question of both the testimony before the preliminary hearing, of which we have a video of his testimony, and the testimony before the grand jury. The authority to use the grand jury testimony comes directly from section 1291(A)1 of the evidence code. The former testimony exception really creates two exceptions. One, the former testimony is offered against the person who offered it in his own behalf at the prior proceeding or, subsection 2, the party against whom the testimony is offered had the opportunity to cross-examine at the former proceeding. The first exception does not require that you even have an opportunity to cross-examine because it is based on the theory that your presentation of the testimony as direct testimony is a substitute for your opportunity to cross-examine. And we cited the Salas case, which is really the leading case interpreting section 1291. It's an opinion by Justice Bernard Jefferson who was the offer of the bench book on evidence.

And in Salas, he was presented with a rather unique situation where the Prosecution was offering preliminary hearing testimony that had been offered by the Defense at the preliminary hearing. And he noted in the Salas opinion that under subdivision (A)1, a party's previous direct and redirect examination called by him on the prior occasion is justifiably considered to constitute an adequate substitute for such party's present right to cross-examine the declarant. So we didn't call the witness at the grand jury. The Prosecution did. So their presentation of his testimony before the grand jury is direct testimony, then justifies use of the 1291(A)1 exception to now offer that testimony against it.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Well, in the Salas case, your Honor, as I recall, I think the Defense called the witness as their own at the preliminary hearing and the Prosecutor then wanted to use the transcript at trial, and they held that it could. So it's slightly distinguishable, although I don't necessarily disagree with counsel's interpretation of the overall importance of the case or the evidence code per se, although we haven't found any cases that specifically say that grand jury hearings are admissible. Usually we've seen depositions introduced in cases where the declarant is unavailable or preliminary hearings. So while I'm not conceding the issue only because we don't have any dispositive case law, it doesn't appear that counsel's interpretation of the law that we do have is fundamentally unreasonable. What I would like to draw the Court's attention to, however, on the issue of the admissibility of the transcript testimony is that previously, the People filed a brief discussing if Thano Peratis were to be called at the time that we thought he might be called as a witness, the extent to which his statements concerning the amount of blood in the blood vial would be admissible. As the Court will recall, when Greg Matheson was testifying on the same subject, to try and estimate the amount of blood on the blood vial or that would have been consumed during various transactions, the Court required the People to lay an extremely thorough foundation as to how those figures were arrived at. And in fact, he never really was allowed to testify as to approximately what quantities would have been used during certain transactions. The People could only get that testimony in by having him repeat those transactions during the evening and then the morning following--repeating those transactions, testifying to the actual amount of blood that was used as opposed to an estimation of the amount. So the Court has in essence heard that even an expert witness cannot offer estimations as to small quantities of blood that were involved in particular transactions with the blood vial in question in this case. We feel that the same rulings are equally applicable with expect to Mr. Peratis, only even more so because in fact, there is no foundation--there is no foundation for how Mr. Peratis arrived at his estimation and there is no foundation for how he calculated the amount of blood. In fact, we've talked to him since then and he said that this was purely an estimate. So applying the same rules that the Court applied to Mr. Matheson, that testimony should not be permitted.

THE COURT: Did he testify it was approximately between--approximately eight milliliters? Is that what he testified to?

MR. GOLDBERG: Well, at first, he said approximately eight milliliters. Then he was asked to clarify the question, what does he mean, approximately eight, and he said between 7.9 and 8.1. now, of course, as your Honor knows, just by looking at the blood vial itself, it would be humanly impossible to, with that degree of precision, determine the difference between 7.9 and 8.1. so how he came up with those numbers seems to defy common sense when one looks at the fact that this is not a calibrated blood vial.

THE COURT: No. My recollection is, it's marked on the side of the tube 10 ml. That's the purple top.

MR. GOLDBERG: The purple top tube is not calibrated.

THE COURT: No. I know it's not calibrated. I'm just saying that the label itself is--there are 5 ml purple tops and there are 10 ml.

MR. GOLDBERG: This is what's been--I don't know if it actually says 10 ml's on it, but everyone has been under the assumption this is a 10-milliliter tube, and I believe Mr. Matheson testified to that. He said that that was his long-time assumption. In fact, I think the tube actually has a capacity of 12 milliliters. I don't know if that's really all that significant in terms of the Court's ruling here. But the point is that there is no adequate foundation and can be no adequate foundation for this kind of testimony.

Now, as I'm sure as Mr. Uelmen will also agree, because I know that he's researched this part of the law as we have, even if a party did not make those substantive objections at the time of the preliminary hearing or grand jury, we do not waive them and can remake those objections at the time that the testimony is introduced in the form of a transcript. The only objections that are waived are objections that go to the form of the testimony, but not any substantive ones such as lack of foundation. An objection that something is leading or suggestive would be waived if not raised previously. But all of these substantive objections would remain. So if what we had--if we could imagine Mr. Peratis testifying in court and being asked, "How much did you draw," we would object, no foundation. That objection would be sustained in light of the Court's rulings with regard to Greg Matheson. Now, I don't think it's an objection that the Defense could ever overcome. So that portion of his testimony, if the Defense wants to introduce the transcript testimony, should be stricken and then the remainder read to the jury.

MR. NEUFELD: Could I save the Court time on this? I think I can. This is completely misrepresenting and misleading as to what Thano Peratis has already testified to. He's not relying on the test tube, all right? He says: "I drew 8 cc's. "How did you know how much it was?" He says: "I just looked at the syringe, and it looked to be about 8 cc's." I saw the syringe in his office. The syringe is calibrated by cc's. Okay. That's how one does it. He didn't rely on looking at the test tube after all. He looked at the syringe. That's the sworn testimony at the preliminary hearing. That's the sworn testimony in the grand jury. He's not just an expert. He's a percipient witness. He's simply saying: "I drew blood, I looked at the syringe, and it was 8 cc's. "Was it exactly 8 cc's? "No. It could have been as little as 7.9 or as much as 8.1." It comes in for that. And I would add one other point at this time, your Honor.

MR. GOLDBERG: Your Honor, don't we have a one-attorney rule here?

MR. NEUFELD: Well, Mr. Uelmen was actually addressing the admissibility of the grand jury testimony. He then brought up a second issue which is that none of it should come in, not because it's not grand jury testimony as opposed to preliminary hearing testimony, but because we can't lay a foundation. Since I was the person who was going to put on Mr. Peratis as you may recall and the person who had made the motion to strike their testimony--

THE COURT: Right. But I consider this to be a waiver of any other argument on the other issue. All right. Proceed.

MR. NEUFELD: Okay. They are suggesting that he has said something to them subsequently in time about his testimony in the preliminary hearing and the grand jury. No. 1, when Mr. Goldberg had the argument last week on this issue, he actually suggested they were prior inconsistent statements. We know of no prior inconsistent statements made by Mr. Peratis which would contradict his sworn testimony at the preliminary hearing and the grand jury.

More importantly, your Honor, at this point in time, we have not received a single statement in discovery from the Prosecution, a written statement of this witness, an interview with this witness, an audiotape of this witness, a videotape of this witness. We have received absolutely no discovery at all that contradicts what Thano Peratis said in sworn testimony both in the grand jury and at the preliminary hearing.

THE COURT: But here's the problem. They have--Mr. Peratis is on your witness list, and they have prepared apparently to impeach that testimony. Under the rules of discovery, since it's direct impeachment, they may not have to turn that over to you. All right. But--

MR. NEUFELD: No. He was on their witness list, your Honor--that's what I'm informed of--initially. They just chose not to call him.

THE COURT: He's on yours now.

MR. NEUFELD: Well, I understand. But if they had some statement from him before they rested their case when he was still on their witness list, we should have received that witness or it's a discovery violation.

THE COURT: All right. Counsel, thank you for another entertaining afternoon.

MR. GOLDBERG: Your Honor, may I--

THE COURT: No. No. I've heard enough, guys. Thank you. All right. I have previously, and if I haven't formally on the record, made a finding of unavailability of Mr. Peratis, we will allow his prior testimony from the preliminary hearing. Likewise, I believe that 1291 does also allow for the presentation of the grand jury testimony. As to the foundational objection that Mr. Peratis is not competent to testify to the amount of blood that was actually drawn, the Court will overrule that objection. Peratis' testimony at the preliminary hearing was that he's been a jail nurse or registered nurse for 20 odd years, that drawing of blood is a routine thing that he does and that the--I assume that there will be some other foundation later in the record, and I'll allow this testimony subject to that later foundation that calibrated syringes are used for the purpose of drawing the blood, that the purple top tubes are the type that are marked--my recollection of the photograph that I saw, it's marked 10 ml at the bottom of the tube, is the type that was used in this particular case. So the objections are overruled. All right. We'll be in recess until 9:00 o'clock.

(At 4:50 P.M., an adjournment was taken until, Tuesday, August 1, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

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

The People of the State of California,)

Plaintiff,)

Vs.) No. Ba097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Monday, July 31, 1995 volume 196

Pages 39175 through 39481, inclusive

(Pages 39238 through 39241, inclusive, sealed)

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APPEARANCES:

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

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

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

ALSO PRESENT: Kelli Sager, Esquire Anne Egerton, Esquire Patricia Duncan, Esquire

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I N D E X

Index for volume 196 pages 39175 - 39481

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Day date session page vol.

Monday July 31, 1995 A.M. 39175 196 P.M. 39298 196

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PROCEEDINGS

Motion to quash subpoena on 39175 196 Tracie Savage

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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 (402) witnesses direct cross redirect recross vol.

Savage, Tracie 39224u 196 (402)

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DEFENSE witnesses direct cross redirect recross vol.

MacDonell, 196 Herbert (Resumed) 39261n (Resumed) 39318n 39328mc

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

MacDonell, 196 Herbert (Resumed) 39261n (Resumed) 39318n 39328mc

Savage, Tracie 39224u 196 (402)

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

553 - photograph 39379 196 of a sock with a white q-tip

554 - photograph 39394 196 of Dr. Henry Lee with a sock held over his head

555 - photograph 39394 196 of Dr. Henry Lee with a sock in hand

556 - photograph 39394 196 of Dr. Henry Lee taking a photograph through a microscope with Messers. Blasier and Scheck looking on

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

1279 - brown sock 39270 196

1280 - document 39288 196 from the national weather service