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.

TH