Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Bailey, Mr. Douglas. The People are represented by Mr. Kelberg and Mr. Lynch. The jury is not present. Counsel, anything we need to discuss before we invite the jurors to join us? All right. Deputy Magnera, let's have the jurors.
(Brief pause.)
THE COURT: Also, Miss Clark, Mr. Darden, did you see Judge Bascue's memo?
MS. CLARK: No, your Honor.
THE COURT: Regarding screening on the 9th floor, all attorneys are to be subject to that.
MS. CLARK: Yes, your Honor.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury. Good morning, ladies and gentlemen.
THE JURY: Good morning.
Lakshmanan Sathyavagiswaran, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Dr. Lakshmanan is again on the witness stand undergoing cross-examination by Mr. Shapiro. Mr. Shapiro.
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: Good morning, your Honor.
THE COURT: Good morning, Mr. Shapiro.
MR. SHAPIRO: Good morning, ladies and gentlemen.
CROSS-EXAMINATION (RESUMED) BY MR. SHAPIRO
MR. SHAPIRO: Good morning once again, Dr. Lakshmanan.
DR. LAKSHMANAN: Good morning.
MR. SHAPIRO: Dr. Lakshmanan, it is clear from your testimony that you were not present when these murders took place?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: There were no eyewitnesses to these murders?
DR. LAKSHMANAN: That is my understanding.
MR. SHAPIRO: There has been no weapon that has been associated with these murders that has been recovered?
DR. LAKSHMANAN: That is my understanding.
MR. SHAPIRO: So clearly what you are here to give us, when you tell us that in response to hypotheticals from Mr. Kelberg as to how you are trying to reconstruct what might have happened, when you say it could have been or could be, you are speculating?
DR. LAKSHMANAN: I won't say it is speculation based on the hypothetical. I saw with the medical findings, which I have had an opportunity to review, fits the hypothetical, but sometimes the hypotheticals which are given may not fit the medical findings I have and then I will say it is not consistent. So the hypotheticals which you have presented during the direct examination fitted some of the medical findings and that is why I said it is consistent, so it depends on what the hypothetical is.
THE COURT: When you use the term "Could be," is that a term of medical certainty?
DR. LAKSHMANAN: "Could be" is not medical certainty, but it is based on education and the findings that it is a good possibility that is what could have happened.
MR. SHAPIRO: Could be is a possibility?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: And when you say something could be, a fair additional response would also be it could have been something else?
DR. LAKSHMANAN: No, because as I mentioned earlier, there are some wounds on both the bodies which are clearly a single-edged knife and I have opined that. There are other wounds on the bodies which could have been a single-edge or a double-edge knife, so there is a little difference. So when the question is posed can all the wounds be by a single-edge knife, I say could have been because there are some wounds on the bodies which could have been single-edge or a double-edge, but there are wounds which could be caused by a single-edge knife from my review of the report.
MR. SHAPIRO: When you talk about the relative positions of the parties--let's get away for a minute from single versus double-edge. I think we have covered that in a great amount of detail. When you give an answer as to the positions of the assailant or assailants and victim and you answered "Could be," you were not giving us any medical certainty, were you?
DR. LAKSHMANAN: No, but the answer was pertaining to that hypothetical. The injuries on the body match the hypothetical.
MR. SHAPIRO: How many different scenarios do you think one could reasonably come up with as to the positions of the bodies at the time of death between Nicole Simpson and her assailant or assailants?
DR. LAKSHMANAN: You mean the--could you repeat the question? I didn't catch the earlier part, I'm sorry.
MR. SHAPIRO: How many different reasonable hypotheticals could you come up with regarding the relative positions of Nicole Brown Simpson and her assailant or assailants?
DR. LAKSHMANAN: For the final wound there is only one possible position. I already opined that. But for the other wounds there could be several other scenarios, but I would rather you give me a scenario and I can opine whether that scenario will fit the injuries I have reviewed.
MR. SHAPIRO: It is your testimony that you are medically certain the position of Nicole Brown Simpson and the position of the assailant at the time of death or assailants?
DR. LAKSHMANAN: Not on all the wounds.
MR. SHAPIRO: On the fatal wound are you medically certain as to the position of Nicole Brown Simpson at the time she received the fatal wounds?
MR. KELBERG: Objection, your Honor. That misstates the testimony as to the number of fatal wounds.
THE COURT: Sustained. You are referring to one specific wound.
MR. SHAPIRO: Yes.
MR. SHAPIRO: As to the last fatal wound are you medically certain as to the position Nicole Brown Simpson was in at the time she received that?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: There are no other reasonable interpretations that other experts could give?
DR. LAKSHMANAN: I have given you my opinion.
MR. SHAPIRO: Are there other reasonable interpretations other experts that you would hold in high regard could give?
DR. LAKSHMANAN: I would like to listen to them before I offer any opinion whether I agree or disagree, but I have clearly enunciated, I think during the direct examination, what are the reasons why I felt that that particular wound took place in that particular position, and based on the crime scene photographs and the medical findings. So I do not know what other opinions are being offered, and when I hear them I can then make a decision.
MR. SHAPIRO: Are you certain as to whether the assailant--as to whether there was one or more assailants regarding Nicole Brown Simpson?
DR. LAKSHMANAN: I'm not certain.
MR. SHAPIRO: Are you certain as to whether the assailant or assailants were right or left-handed?
DR. LAKSHMANAN: I've already opined on that, I think.
MR. SHAPIRO: I'm asking you are you certain?
DR. LAKSHMANAN: I'm not certain.
MR. SHAPIRO: And again, that is because you weren't there and there are no eyewitnesses to this; isn't that correct?
DR. LAKSHMANAN: That is correct, but what I gave was what are the possibilities and based on the wounds. For example, the last wound on Nicole Brown Simpson had to be right-hand person because the wound travels, in my opinion, from left to right and it has to be done from the back based on the blood flow pattern.
MR. SHAPIRO: Isn't that equally consistent with--how many different ways can a right-handed person hold a knife?
DR. LAKSHMANAN: They could hold it in different ways.
MR. SHAPIRO: How many different ways, in your opinion as an expert, can a right-handed person hold a knife?
DR. LAKSHMANAN: I already showed one way they could hold it. They could be--but for that wound it had to be held in that way.
MR. SHAPIRO: Well, that is not my question, doctor. How many ways, as an expert, can you tell us that a right-handed person can hold the knife?
DR. LAKSHMANAN: Only--only one way he can hold the knife; hold it on the handle part. I mean, how else can you hold it?
MR. SHAPIRO: Your testimony as an expert witness is a right-handed person can only hold the knife in one position?
DR. LAKSHMANAN: Well, I mean, for the wound which was caused.
MR. SHAPIRO: I'm asking you how many--this is a broad question.
DR. LAKSHMANAN: Okay.
MR. SHAPIRO: The question is--and I think it is pretty simple.
MR. KELBERG: Objection, your Honor, to counsel's statement.
THE COURT: Sustained. Rephrase the question.
MR. SHAPIRO: How many ways can a right-handed person hold a knife?
DR. LAKSHMANAN: There is only one way I can see a person could hold the knife if you are going to hold it in the handle part.
MR. SHAPIRO: Only one way?
MR. KELBERG: Excuse me. For the record, the doctor, with his right hand he reached out and appeared to twist his wrist as if holding an object.
THE COURT: Yes.
DR. LAKSHMANAN: If you give me a knife I can show you one of the ways you can do it because this way we can demonstrate it better, because instead of going over a hypothetical in an abstract sense, if you give me a knife, let's go over it and I will tell you how many other ways you can hold it and we can look at it and make a decision on it.
MR. SHAPIRO: Your Honor, I would object to the witness asking questions.
THE COURT: That was an answer. Ask your next question.
MR. SHAPIRO: Can you tell us how many ways a right-handed person can hold a knife as an expert?
DR. LAKSHMANAN: I think the best way is to demonstrate it.
MR. SHAPIRO: So the answer--would you give us an answer or you cannot tell us?
DR. LAKSHMANAN: I can tell you if you have the knife, if you can give it to me, a weapon, and I can show you one of the ways I think it can be held, but to make it useful as an object, you can hold it in certain ways, but in certain other positions it won't be useful as to the function of that weapon.
MR. SHAPIRO: So I understand you, and I don't want to belabor this point, you can't articulate how many ways a right-handed person can hold a knife?
DR. LAKSHMANAN: I think for somebody to understand it will be difficult. Unless you give a demonstration in certain types of situations, that is the best way to do it.
MR. SHAPIRO: Well, let's assume we have reasonably intelligent people listening. Can you verbalize how many ways a right-handed person can hold a knife? If you can't, just say you can't.
DR. LAKSHMANAN: I said I could, but I said it will be better demonstrated.
MR. SHAPIRO: Okay. You can. What is the answer? How many ways can a right-handed person hold a knife?
DR. LAKSHMANAN: You can hold it with the blunt edge facing you, the sharp edge facing you, depending on where you hold the handle. There are only two parts of the knife, the blade and the handle. You are going to hold it in the handle portion, and if it is a single-edge knife, the one sharp edge is going to face you when you hold it in one manner. If you will rotate the knife, the blunt edge is going to face you and hopefully you won't hold it in the blade portion so then it won't serve the function. And if it is a double edge knife, it doesn't matter how you hold it, because both edges are available for causing the function you want it to perform.
MR. SHAPIRO: So your answer is for a single-edge knife you can hold it in two positions?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And for a double-edged knife you can hold it in one position?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: For a right-handed person?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Would your answer be the same for left-handed person?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Can people hold knives in different angles?
DR. LAKSHMANAN: They could.
MR. SHAPIRO: Would there be an infinite number of angles that somebody could hold a knife?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: For example, a right-handed person could hold the knife backhanded and make a thrust with the blunt edge out; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And a right-handed person could hold a knife with the blunt edge out and make a thrusting motion from the right side; is that correct?
DR. LAKSHMANAN: Using the--you are using an example of a single-edged knife, I presume?
MR. SHAPIRO: Yes. Is that correct?
DR. LAKSHMANAN: Where is the blade portion in your hand right now? You made a fist and I want to--
MR. SHAPIRO: I don't want to--let's--
THE COURT: Mrs. Robertson.
MR. SHAPIRO: Mrs. Robertson, do we have a knife here?
THE COURT: Excuse me.
(Discussion held off the record between the court and the clerk.)
THE COURT: I will give you something from my evidence collection.
MR. SHAPIRO: Thank you, Judge. I knew you would always have some demonstrative evidence.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Kelberg, did you mark those knives that we had?
MR. KELBERG: I believe that we did, your Honor, and we only needed them that first day, so they were kept downstairs, as I understand it.
THE COURT: All right.
MR. KELBERG: If I could have a moment, I think I can give you an exhibit number.
(Brief pause.)
Mr. Douglas: 332, your Honor.
MR. KELBERG: Correct, and 333 and 334.
THE COURT: All right.
(Brief pause.)
THE COURT: Mr. Shapiro.
MR. SHAPIRO: Thank you very much, your Honor.
(Brief pause.)
MR. SHAPIRO: All right. Doctor, this is a single-edged knife?
DR. LAKSHMANAN: I would have to look at it up close. Yes, it looks like a single-edged knife.
MR. SHAPIRO: So one way a person could hold the knife would be with the forearm back and the blunt edge to the outside, (indicating); is that correct?
DR. LAKSHMANAN: If the thrust is being made in the fashion you are demonstrating and a wound is inflicted, it is a possibility, yes.
MR. SHAPIRO: Then the knife could be turned just the opposite way and a thrust could be made, (indicating)?
DR. LAKSHMANAN: That is also a possibility.
MR. SHAPIRO: That would cause a blunt edge to the inside and a straight edge to the outside?
DR. LAKSHMANAN: Depending on which part of the body it is striking.
THE COURT: Mr. Shapiro, would you just turn because the jurors in the back end were looking to see how you were holding the knife.
MR. SHAPIRO: This was the first time and this was the second time, (indicating).
MR. SHAPIRO: Now, on the wound that you saw on Mr. Goldman's neck, you saw one wound with a blunt end in one direction and one with a blunt end in an opposite direction?
DR. LAKSHMANAN: In Goldman's wound both were incise thrust/stab wounds which I described, so it could have been either way.
MR. SHAPIRO: And the same would be true if somebody held the knife coming from the outside of the right hand, they would thrust it with the blunt edge out, (indicating), or they could thrust it with the blunt edge in?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: Could also somebody take a knife and thrust it underhand, (indicating)?
DR. LAKSHMANAN: They could do that also.
MR. SHAPIRO: And there would also be four possibilities of doing it that way, wouldn't there?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Turning the knife the other way and also coming backhand straightened, (indicating)?
MR. KELBERG: Excuse me, Mr. Shapiro, you are getting a little too close, if you don't mind.
MR. SHAPIRO: And also somebody could come from the bottom, (indicating); is that correct?
DR. LAKSHMANAN: That is also a possibility.
MR. SHAPIRO: And that could be four additional ways?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And then a right-handed person could also, from behind, come backhand the same way we have described, (indicating); isn't that correct?
DR. LAKSHMANAN: That is also a possibility.
MR. SHAPIRO: And from behind could come forehand, (indicating)?
DR. LAKSHMANAN: That is what I demonstrated in my demonstration, yes.
MR. SHAPIRO: And the same thing for a left-handed person, a left-handed person could come behind, (indicating)?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: On either side?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: So you couldn't tell whether it is right or left-handed because there are so many different ways a knife can be held; isn't that correct, sir?
DR. LAKSHMANAN: I thought I opined that, that--
MR. SHAPIRO: And you really can't tell positions of the body because there are so many different--there are an infinite number of ways a knife can be wielded; isn't that correct?
DR. LAKSHMANAN: We have discussed that, yes.
MR. SHAPIRO: You told us yesterday that there was a technician by the name of Mr. Taylor who was present at the autopsy of Mr. Goldman and Miss Brown Simpson?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And that Dr. Golden was present?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Was anyone else present at the autopsy?
DR. LAKSHMANAN: Yes. He was also I think assisted by Miss Maria Diaz.
MR. SHAPIRO: Maria Diaz?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: What was her role?
DR. LAKSHMANAN: I mean technicians assist in the autopsy as I told you, help in removal of the organs and assist the doctor in any way they need to assist the doctor, so--and I already told you yesterday I was not there when the autopsy was being performed in its entirety, so I don't know what exact assistance was provided to Dr. Golden by these two technicians. But I do know that Mr. Taylor took the photographs because some of the photographs that were on display on the posterboard was the photographs taken during autopsy, especially the photographs of the scalp wound on the victim.
MR. SHAPIRO: Is Mr. Taylor a competent technician?
DR. LAKSHMANAN: Yes, he is.
MR. SHAPIRO: Is he somebody whose opinion you rely on?
DR. LAKSHMANAN: On Mr. Taylor?
MR. SHAPIRO: Yes.
DR. LAKSHMANAN: I worked with him for many years. He has been there in the department many years, so I know his competence. I don't have to get an opinion from others on that.
MR. SHAPIRO: In your opinion is he honest?
DR. LAKSHMANAN: In my opinion he has always been honest to me and he has done his job when I asked him to do something.
MR. SHAPIRO: Anyone else present, that you are aware of, during the autopsy of both of the decedents or either of the decedents, I should say?
DR. LAKSHMANAN: The autopsy supervisor and the other autopsy technicians will also be present. As I told you, there are six other--there are total six stations in that room, so there could be other doctors and other technicians there in that room at that time, so I can't really tell you who all were there. I already said that yesterday.
MR. SHAPIRO: Are there any notes or logs to reflect who was there?
DR. LAKSHMANAN: I could try and obtain some information for you on that, because who were working that day, but I can't really specifically tell you who was in the autopsy room at that time because, as you know, we do certain number of cases a day and doctors--different doctors could be doing different cases at that time and during the span these cases were done, and technicians could be taking breaks, other technicians could be coming in, so really all I can give you is who was working that day and what cases were done, but I really can't tell you with certainly who was there in the room when these cases were being done, other than what I've already told.
MR. SHAPIRO: Are you saying that you do not keep log records of who is present during an autopsy?
DR. LAKSHMANAN: We do. We usually keep log of the--the--the--the witnesses who attend the autopsy, and there is a log of which technician helped with a particular case, but I thought your question was who all were present in that room, so that is what I was trying to answer. I already told you who helped Dr. Golden on these cases.
MR. SHAPIRO: Let me be more specific. Regarding Nicole Brown Simpson, do you have log records of every person who was present during the time her body was autopsied?
DR. LAKSHMANAN: I have to check the autopsy technician sheet, which they do maintain, who helped whom, because that was one of the procedures which should be in place.
MR. SHAPIRO: My question wasn't who was present. My question was do you have records as to who was present?
DR. LAKSHMANAN: I said I have to go and check into that. I don't know whether they have the records or not on that particular issue.
MR. SHAPIRO: Are you supposed to have records of who was present at an autopsy?
DR. LAKSHMANAN: It is kept that we have the record of the technicians present because the same technician may help in other cases, so we do have records on that.
MR. SHAPIRO: Are you supposed to keep records of everyone who was present at an autopsy?
DR. LAKSHMANAN: (no audible response.)
MR. SHAPIRO: Yes or no?
DR. LAKSHMANAN: We only record the witnesses present during the autopsy; not the technicians.
MR. SHAPIRO: So you will also have records of the doctor who was present and the witnesses, but other parties you will not have records?
DR. LAKSHMANAN: I didn't say that. I said there are technicians who help in the autopsy. We keep records of the technicians' roster there. And I already told you who the technicians helped in these cases, but I am not sure whether we have information that these are the only technicians who worked only on these cases or did they do other cases. That is what I'm saying.
MR. SHAPIRO: By policy would you kindly tell the ladies and gentlemen of the jury what records should be kept of who viewed the autopsy of Nicole Brown Simpson?
DR. LAKSHMANAN: The persons who view the autopsies would be the doctor, the technicians who assist the case and the witnesses would be the police officers who attend the autopsy, and of course other doctors and technicians who are in the autopsy room will be seeing portions of the autopsy.
MR. SHAPIRO: Those are the records you should have?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Do you know if you have such records?
DR. LAKSHMANAN: I said that I have to go and check in my department to see whether we got the log sheet for that and I will be happy to provide that and I'm sure we do.
MR. SHAPIRO: So the question is you expect that you do, but you don't know?
DR. LAKSHMANAN: At this time I don't have it, so I have to say I don't know, but I'm sure it will be there to get you that information.
MR. SHAPIRO: Do you have any information as to whether or not any police officers were present during the autopsy?
DR. LAKSHMANAN: Yes. I already showed that on the form 15. Dr. Golden has clearly recorded Detective Vannatter and Lange to be present during the autopsy on the form 15. It says "Witnesses to the autopsy." We saw that yesterday.
MR. SHAPIRO: Was Detective Fuhrman present during the autopsy?
DR. LAKSHMANAN: As I told you, that is not recorded, so I would have to presume that he was not there.
MR. SHAPIRO: Do you know that for a fact?
DR. LAKSHMANAN: I told you I reviewed the record and I gave you the information from the record. I was not present during the whole autopsy.
MR. SHAPIRO: Is it important to maintain the security of the area where an autopsy is taking place?
DR. LAKSHMANAN: Yes, and the security is provided for the department to have only people who are responsible to be there.
MR. SHAPIRO: Well, isn't it true that construction workers were in the proximity of Mr. Goldman's body?
MR. KELBERG: Your Honor, I will object as vague on the term "Proximity."
THE COURT: Sustained. Rephrase the question.
MR. SHAPIRO: Do you know what "Close to" is?
DR. LAKSHMANAN: Close to means, I believe, to observe a process.
MR. SHAPIRO: Do you know whether or not construction workers were close to Mr. Goldman while he was in the Coroner's office?
DR. LAKSHMANAN: I am not aware of that.
MR. SHAPIRO: You hadn't heard that from anyone?
DR. LAKSHMANAN: No.
MR. SHAPIRO: That wasn't brought up in any of your meetings?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Would you be surprised if that happened?
DR. LAKSHMANAN: Well, it will be new information which I have learned from you.
MR. SHAPIRO: Would you be surprised if that happened?
DR. LAKSHMANAN: Well, I won't be surprised because there are people who visit the department and who--also there may be repairs going on, but I am not aware of it, that a construction worker was there watching the autopsy.
MR. SHAPIRO: Would there be anything wrong with that?
DR. LAKSHMANAN: Well, I don't know whether it is wrong or right, but if he observed it, he observed it because he was doing some construction work, so I can't say it is right or wrong, but I would prefer that was not watched because it is a medical process and only the doctors and the technicians and the detectives who are supposed to be present should be present.
MR. SHAPIRO: Was Mr. Goldman's body, from the time it was brought in, ever left unattended, to your knowledge?
DR. LAKSHMANAN: As I told you, when they are left in the crypt area they are left unattended because the doors are closed and they are unattended at that point, so I do not know what you mean by "Unattended."
MR. SHAPIRO: Left out in view of people other than medical professionals necessary to do the work of the Coroner's office?
DR. LAKSHMANAN: As I told you, I have given you the whole process on last Tuesday, how the bodies went through our office and where they are stored, so it is my understanding that only the people who work in the department and who should have been watching the process, because that is my understanding.
MR. SHAPIRO: What about in the--is there any hallway areas where bodies are left prior to autopsy or after autopsy?
DR. LAKSHMANAN: If at all they are left it is for a short time because you have to move a body to place another body in the autopsy room, so for a short period they will be in the hallways because you have to go through the hallway from the cold crypt area to go to the autopsy room. And I didn't have any photographs of the hallway, but there is a transit period, and also--so to answer your question, there is--the bodies will be in the hallway at some time between the crypt and the autopsy area.
MR. SHAPIRO: Was Mr. Goldman's body ever left in the hallway unattended?
DR. LAKSHMANAN: Not to my knowledge.
MR. SHAPIRO: Would that be a violation of your policy if it was?
DR. LAKSHMANAN: I wouldn't say it is a violation because they would usually try and place the bodies, as soon as the autopsy is done, back in the cold crypt area, but as I told you, I am not aware that was done, so we like to remove the remains from the autopsy area and put them in the cold crypt area as soon as possible, because it is good to preserve the bodies in the cold area as much as possible, depending on the situation that day.
MR. SHAPIRO: Would it be proper for construction workers to be close to Mr. Goldman's body while it was in the hallway?
DR. LAKSHMANAN: I said I am not aware of that, so--
MR. SHAPIRO: I am asking you if it happened, would that be appropriate?
DR. LAKSHMANAN: Well, if he is--if the person was there in the hallway doing some kind of construction work or he had to do some repairs, that is something which we can't avoid, as long as he doesn't touch the body, because the bodies are kept on gurneys.
MR. SHAPIRO: How would you know if he touched the body or not if nobody was watching?
DR. LAKSHMANAN: Well, as I told you, it is beyond my expertise to tell you what exactly happened, but I am telling you that it should not happen and it is my understanding nothing of such nature happened.
MR. SHAPIRO: Now, you have told us that all of your information regarding your testimony comes from photographs; is that correct?
MR. KELBERG: Objection, that does misstate the testimony.
THE COURT: Sustained.
MR. SHAPIRO: Regarding the coloration of the wounds, do you have any firsthand knowledge of the color of the wounds other than from photographs on the two decedents?
DR. LAKSHMANAN: I had--as I told you, I did examine the bodies briefly on the 13th and I saw some of the major wounds, but more--almost most of the other wounds which were in the covered areas of the body was from photographs, yes.
MR. SHAPIRO: On the 13th did you dictate any memoranda as to what you observed?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Did you write any notes as to what you observed?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Did you file any notes as to what you observed?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Did you make any measurements as to what you observed?
DR. LAKSHMANAN: No.
MR. SHAPIRO: You have nothing other than your memory to rely upon to refresh your recollection as to what you observed on the 13th?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And you have told us that as a supervisor you literally review thousands of bodies?
DR. LAKSHMANAN: Over the year, yes.
MR. SHAPIRO: And this has been over a year?
DR. LAKSHMANAN: Over a year means over a stretch of a year we do hundreds and thousands of cases so that is what I meant by an answer, but it is a year since I reviewed this body; that is correct.
MR. SHAPIRO: So you have seen thousands of cases since then?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: And with no notes to refresh your memory it would be very hard to describe with a medical degree of certainty, the wounds, the coloration that you observed on the 13th; isn't that correct?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: So you are relying entirely on photographs when you form those conclusions?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And on photographs you can't measure depth, can you?
DR. LAKSHMANAN: No, you cannot.
MR. SHAPIRO: Now, is there a term in forensic pathology that takes a wound and puts it together called "Reassessment"? Have you ever heard that term?
DR. LAKSHMANAN: I have not heard the word "Reassessment." I have heard the word "Approximation" when you put the wound together, edges together.
MR. SHAPIRO: Reapproximation?
DR. LAKSHMANAN: That would be a better term I used than what you used.
MR. SHAPIRO: We will go with your term. And when you reapproximate a wound, that is to try to put it back to the position it was in at the time the injury took place; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And what efforts did you make, in coming to your conclusions, to reapproximate any of the wounds on Nicole Brown Simpson?
DR. LAKSHMANAN: I clearly stated that I had limitations in the photographic process when I gave my testimony on the direct exam. Do you want me to repeat it?
MR. SHAPIRO: Let me just repeat the question.
DR. LAKSHMANAN: Okay.
MR. SHAPIRO: Maybe you didn't understand it. What efforts did you take to reapproximate the wounds on Nicole Brown Simpson before you gave this jury your opinion?
DR. LAKSHMANAN: I already said I reviewed from photographs and I did not reapproximate the wounds. The measurements of Dr. Golden are those taken when the wounds were approximated.
MR. SHAPIRO: Well, when he says they were approximated--
DR. LAKSHMANAN: Yes, he did, and he dictated that he approximated the wound.
MR. SHAPIRO: Did you see him do it?
DR. LAKSHMANAN: I didn't see him do it.
MR. SHAPIRO: You have already told us he has made lots of mistakes?
DR. LAKSHMANAN: I also said that they were not significant mistakes. I told you that they don't have significance to the matter which concerns the case. There were no mistakes on the wounds which caused the major fatal injuries on both the victims.
MR. SHAPIRO: Are you medically certain that there are no other errors that Dr. Golden made in this autopsy?
DR. LAKSHMANAN: I have truthfully discussed all the errors which I believe are there, but as I also opined that the significant injuries which I could evaluate, I could give an opinion on, and I believe that the errors which were addressed had no significance to my final opinion.
MR. SHAPIRO: My question was--
DR. LAKSHMANAN: I am--
MR. SHAPIRO: I'm sorry. Finish.
DR. LAKSHMANAN: I'm finished.
MR. SHAPIRO: Are you medically certain that Dr. Golden made no other errors?
DR. LAKSHMANAN: To my knowledge on the review of the case.
MR. SHAPIRO: All right. I didn't understand that answer. Can you answer yes or no? Are you medically certain that Dr. Golden made no other errors?
MR. KELBERG: Excuse me, your Honor. I will object. It is asked and answered and argumentative.
THE COURT: Overruled.
DR. LAKSHMANAN: Could you repeat the question.
MR. SHAPIRO: Are you medically certain Dr. Golden made no other errors?
DR. LAKSHMANAN: To the extent I reviewed the case, yes. I mean, to the extent I reviewed the case, no, I don't think he made any other errors to the extent I reviewed.
MR. SHAPIRO: You don't know whether he overlooked something that may be important?
DR. LAKSHMANAN: Well, from my review of the photographs there was nothing else which was overlooked on the case from what I already opined.
MR. SHAPIRO: So you are saying that a photograph is a substitute for an in-person autopsy by a medical examiner?
DR. LAKSHMANAN: I didn't say that. I never said that.
MR. SHAPIRO: Is that your opinion?
DR. LAKSHMANAN: No, it is not my opinion. I never said that.
MR. SHAPIRO: That is what you are going on, isn't it?
DR. LAKSHMANAN: Well, under the circumstances, yes.
MR. SHAPIRO: Now, you were shown a picture in a standard text of a wound that was reapproximated; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And did I understand your testimony that the purpose of that was only to demonstrate for photography, but that wasn't a method that was actually used?
DR. LAKSHMANAN: No. My understanding is that I thought I said that on approximation you will find that the length of the wound will be greater than the wound--wound measurement when it is gaping, and true reflection would be when you approximate the wound and take the measurement, and that is what I restating.
MR. SHAPIRO: Isn't it true that you cannot, as a medical examiner, correctly measure a wound from a photograph unless it has been reapproximated, sir?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And that wasn't done in this case, was it?
DR. LAKSHMANAN: Not in my review; that's correct.
MR. SHAPIRO: What about--you put a lot of emphasis in your testimony on the color of the wounds; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Are there different degrees of color in photographs?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And do they vary based on lighting?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Do they vary based on the type of equipment that is used?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And is there something that forensic pathologists use to measure color called a color slide or a color standard? Is there something like that?
DR. LAKSHMANAN: I am not a photographer and I do not know about this color standards, but the photographs which are developed clearly demonstrate the wounds and I have already given my opinion on it.
MR. SHAPIRO: So you are not aware of anything called a color chart that is taken simultaneously with a photograph to compare colors?
DR. LAKSHMANAN: As I told you, I am not a photographic expert and that is not my area of expertise.
MR. SHAPIRO: But you are testifying from photographs?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And would you agree that colors in photographs may vary due to the printing process of those photographs?
DR. LAKSHMANAN: I have already said that I am not a photographic expert and do not want to go into that.
MR. SHAPIRO: Are you familiar with a process known as microscopic slides?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Are microscopic slides something that is commonly used in forensic pathology?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And would you agree that you can better age abrasions and contusions from microscopic slides than you can from photographs?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: What microscopic slides were taken of the skin areas of Nicole Brown Simpson?
DR. LAKSHMANAN: None were taken.
MR. SHAPIRO: What microscopic slides were taken of the skin area of Ronald Goldman?
DR. LAKSHMANAN: None were taken.
MR. SHAPIRO: When was the first time you decided--well, let me ask you this: Did you decide on your own to independently review the findings of Dr. Golden?
DR. LAKSHMANAN: That was when the addendum was prepared I--I looked at the case and I brought his attention about the missed contusion and he brought to my attention some of the injuries which were not described in the original report, and that is the time I discussed that with him, yes.
MR. SHAPIRO: My question was did you decide on your own to reevaluate the work of Dr. Golden?
DR. LAKSHMANAN: No, I did not.
MR. SHAPIRO: Did someone ask you to reevaluate the work of Dr. Golden?
DR. LAKSHMANAN: I did that reevaluation when the District Attorney wanted me to testify, yes.
MR. SHAPIRO: And who asked you to do the reevaluation of Dr. Golden?
DR. LAKSHMANAN: When--actually initially I was considered as a possible witness during the latter part of last year, but this year, when Mr. Kelberg and Mr. Lynch came to see me, I was told that I would be testifying and that is the time I really started an intensive review process of the case.
MR. SHAPIRO: Could you give us a date?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Do you have your logs with you today?
DR. LAKSHMANAN: Yes. I think I gave you a copy yesterday.
MR. SHAPIRO: Yes, you do. Do we have that copy? Do you have that?
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: Did you provide it? I don't know whether we left it here or not, but go ahead.
MR. SHAPIRO: Would that refresh your memory, sir?
DR. LAKSHMANAN: Yes. I have to look at the log sheet. Sometime the beginning of February 8;th I had my first conversation with Mr. Kelberg.
MR. SHAPIRO: So let's see if we can answer the question specifically. When was the first time your notes reflect that you were requested to reevaluate the work done by Dr. Golden?
DR. LAKSHMANAN: This entry is February 8th of this year.
MR. SHAPIRO: That was by Mr. Coleberg--Kelberg, I'm sorry?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: When--was that the first time that you began to focus on reevaluating the work of Dr. Golden?
DR. LAKSHMANAN: No. I already said that we addressed some of the errors in the addendum report in July.
MR. SHAPIRO: All right. Let me--may I just stop you there?
MR. KELBERG: Excuse me, your Honor. I would ask that the witness have an opportunity to fully complete his answer.
THE COURT: Overruled at this point because we are getting two different answers.
MR. SHAPIRO: Thank you.
THE COURT: Proceed.
MR. SHAPIRO: And in July who initiated the reevaluation work?
DR. LAKSHMANAN: Actually it was June 30th when I evaluated the report for the addendum preparation.
MR. SHAPIRO: Who initiated the work on June 30th?
DR. LAKSHMANAN: That was me and Dr. Golden.
MR. SHAPIRO: You did this on your own?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And why did you decide to reevaluate the work on June 30th?
DR. LAKSHMANAN: As I told you, there were some errors found. One was the contusion which was there in the storage tissues which was not addressed. And the other issue was Dr. Golden had some injuries which were not addressed which were in the photographs, and he had finished his recent review of the case, and I instructed him that you need to address these issues and that is how the addendum report was prepared.
MR. SHAPIRO: So prior to that you yourself, as the Chief Medical Examiner, did not undertake any reexamination of Dr. Golden's work; is that correct?
DR. LAKSHMANAN: On these cases, yes.
MR. SHAPIRO: And it was only when Dr. Baden and Dr. Wolf, who is not here today, through myself, made an appointment to come review your findings that attention was first focused on errors; isn't that true, sir?
DR. LAKSHMANAN: At least the brain contusion part because the errors which Dr. Golden had in his mind would have been also addressed, because that was not addressed in the meeting with Dr. Baden and Dr. Wolf. The only reason which I felt I should definitely review was the contusion part of that. The rest of the addendum report was Dr. Golden's own initiative which resulted in the addendum report being repaired.
MR. SHAPIRO: Regarding the brain contusion, is it correct, sir, that on June 22nd, at the direction of myself to bring in Dr. Baden and Dr. Wolf to reevaluate the autopsy, for the first time the brain tissue was brought out for reexamination based on their request?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And at that time Dr. Baden was dictating notes to Dr. Wolf, was he not?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And you were also taking notes of what Dr. Baden was dictating, were you not?
DR. LAKSHMANAN: I was taking notes of what Dr. Baden was going and also what I was observing.
MR. SHAPIRO: And you took notes when Dr. Baden observed the injury to the brain, did you not?
DR. LAKSHMANAN: Well, I also observed the injury at the same time, because I was working with him at the same time.
MR. SHAPIRO: Did you take notes of Dr. Baden's findings regarding the brain? Yes or no?
DR. LAKSHMANAN: I took notes of what I observed, but Dr. Baden also observed the same thing and he took his notes. I was taking notes of the meeting to record it for posterity.
MR. SHAPIRO: Did you turn those notes over to the Defense as required by discovery?
DR. LAKSHMANAN: I turned over the typed report which was present which is a final report, yes, and I also turned over the notes to you I think a few days ago.
MR. SHAPIRO: And did those notes indicate they were your findings or Dr. Baden's findings?
DR. LAKSHMANAN: They were my findings and his findings, yes.
MR. SHAPIRO: Actually it was really obvious what the injury was, wasn't it?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: But it was at Dr. Baden's request that that sample jar be brought out?
MR. KELBERG: Asked and answered, your Honor.
THE COURT: Overruled.
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Did Dr. Baden and Dr. Wolf ask to be able to take photographs of their findings?
DR. LAKSHMANAN: I don't recall that because we did take photographs of the evidence during the histopathological process. I don't recall them requesting it.
MR. SHAPIRO: Do you recall denying them the right to take photographs saying that they couldn't?
DR. LAKSHMANAN: That I said that as a general rule in our department we don't allow outside people to take photographs. We take the photographs and provide them copies, but I don't recall that they wanted to take photographs during the tissue examination process, but we did take photographs during the other evidence examination process.
MR. SHAPIRO: You know Dr. Baden for a long time, don't you?
DR. LAKSHMANAN: Yes, I do. He takes a lot of photographs. I know that.
MR. SHAPIRO: And you trained under him, didn't you?
DR. LAKSHMANAN: Yes. I trained under him for two years on a part-time basis.
MR. SHAPIRO: Is there any reason why you would not allow him to take photographs in your laboratory?
DR. LAKSHMANAN: We have procedures in our department, and we can't break rules just because I know somebody and I am friendly with them. I have to follow the rules of the department because I establish these rules so that we have control on the photographs being taken in the department.
MR. SHAPIRO: Did Dr. Baden try to talk to you, as a medical examiner, about the findings while you were there?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Didn't you tell him that you were instructed by the District Attorney that you couldn't talk to him?
DR. LAKSHMANAN: I think I told you that also, because I didn't tell you about the District Attorney not asking me to talk to you. I told you that I won't be able to talk to you on the case because the case was in grand jury at the time and Dr. Golden was not present because he was testifying at the grand jury. So that is my understanding of our conversation, if I remember it right.
MR. SHAPIRO: So you were--you did instruct Dr. Golden--I'm sorry--Dr. Baden, that you could not speak with him?
DR. LAKSHMANAN: About the case, yes.
MR. SHAPIRO: Even about medical findings that would commonly be shared by forensic pathologists?
DR. LAKSHMANAN: At that time, yes, because the case was in grand jury.
MR. SHAPIRO: Isn't it true that the only slide that your office made at your own direction was after Dr. Baden asked for the brain tissue to be examined?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And isn't it true that the only other microscopic slides that have been done in this case were done recently at the request and expense of Dr. Baden, Dr. Wolf and myself?
DR. LAKSHMANAN: That is also correct.
MR. SHAPIRO: By the way, how much did you charge us for those slides?
DR. LAKSHMANAN: If I remember right, the department charged you, not me, the County of Los Angeles charged you $1393.60, if I remember right, but I can pull out the invoice and I can verify that number, but that is my recollection of the number, $1395.60, but I can check it.
MR. SHAPIRO: And we were charged for your time?
DR. LAKSHMANAN: No. Basically what has happened is that the county has some fixed rates when tissues and slides--slides are made from tissue processing, and you were charged for 16 slides at the rate of eighty plus dollars per slide and that is what the county charges, yes, and that includes my time also or any doctor's time.
MR. SHAPIRO: How much an hour were you billed for my time?
DR. LAKSHMANAN: You were not billed for my time. You were only billed for the slide cost.
MR. SHAPIRO: Are you sure of that?
DR. LAKSHMANAN: Positive.
MR. SHAPIRO: So if I have a bill for your time, we will get a refund?
DR. LAKSHMANAN: Yes, because the--the amount of money you were charged as the doctor's time is built into it. The county has some procedures.
MR. SHAPIRO: And the $80.00 a slide?
DR. LAKSHMANAN: Eighty plus I said.
MR. SHAPIRO: Eighty plus. All right. Let's say eighty for the sake of this discussion. Would you say that the going rate in forensic laboratories around the country for such a slide is $5.00?
MR. KELBERG: Objection, your Honor, calls for hearsay, lack of foundation.
THE COURT: Overruled.
DR. LAKSHMANAN: I think you are confusing the picture here. Maybe I should explain this a little bit in detail. The cost when you are paying for slide includes the initial phone calls you made. The county takes a lot of things into consideration. My clerical person answering the phone call, our conversations, our being present. And remember, during the process we took extra photographs which we didn't charge you for. We gave you the photographs free. Whatever I think is necessary which needs to be done on the case is given to both parties without any cost. It is something when I don't feel it is necessary and is requested by another party, then the county charges for that request, no. 1. No. 2, if it is just a duplicate of a slide which is being made, it is done at a much lower cost. And with reference to the only slide we made was the brain contusion slide, that we gave the duplicate free, we didn't charge Dr. Baden for it. We didn't charge Dr. Baden or yourself for the initial set of photographs. We didn't charge you for anything. Whatever we gave the Prosecution, we gave you, but what a we did charge was for the extra effort the department made for the additional sections which in my opinion were not adding anything further to the cause and manner of death in this case was charged to you, and I think the charge is what the county sets up based on the clerical--if--the clerical call to the histopathology technician, going and retrieving the jars, his time, because he has to stop what he is doing, bring these jars from storage and then we are to give it to the processor and the processor process slides that come back. All these charges are built in, and then since we generated slides on a case, even though it is requested by another person, we still have to look at the slides, because it is our case, we have to generate a report. I mean, all these costs are built in and then--and that is how those charges come. So it looks--this is similar to what the hospital charges you when get Tylenol from the hospital. They have the built-in cost of running the whole show. It is just not the slide cost. It is not like buying retail. It is the whole process. That is what the auditor does. I just tried to explain my understanding of the process of why the cost should be so much.
THE COURT: Next question.
MR. SHAPIRO: Do you remember the question I asked?
DR. LAKSHMANAN: Yes, I do.
MR. SHAPIRO: What was the question?
MR. KELBERG: Objection, object as argumentative.
THE COURT: Sustained.
MR. SHAPIRO: Didn't I just ask you isn't it the standard cost around the country that the cost is $5.00. Can you answer that yes or no?
DR. LAKSHMANAN: Well, it won't really explain the question the way you phrased it, because it looks--
THE COURT: All right. Thank you. Let's move on.
MR. SHAPIRO: Isn't it true, doctor, the best way to determine the aspiration of blood into the lungs is to examine microscopic slides?
DR. LAKSHMANAN: You can tell from grossly also, but microscopically you will see the aspirated blood, but in gross position you can see aspirated blood very clearly but you will have to see blood in the trachea and the larynx first. It is the initial pathway from where the blood reaches the lungs.
MR. SHAPIRO: Is it your medical opinion that a better way to determine the issue of bleeding into the lungs, or aspiration of blood into the lungs, is by microscopic slide or relying on somebody else's visual observation?
MR. KELBERG: Your Honor, I object as vague. Are we asking aspiration of blood or bleeding.
THE COURT: Sustained.
MR. SHAPIRO: Aspiration of blood.
THE COURT: Do you understand the question?
DR. LAKSHMANAN: Because you sustained it, so I don't know what the exact--
THE COURT: No, he just restated it. Why don't you restate the complete question.
MR. SHAPIRO: Regarding aspiration of blood, would you, as an expert medical examiner, say it would be a better way to make the determination by a microscopic slide or relying on a medical examiner who has made numerous mistakes in an autopsy?
DR. LAKSHMANAN: It depends on the issue you are trying to study. If you think by gross examination the bleeding was acute, which was from a fracture of the skull or whatever the reason for the aspiration was, you don't need to do a microscopic study, but if you feel the aspiration occurred and you need to date the aspiration, then a microscopic study will be useful, but as far as looking at an aspirated blood, it is pretty obvious, if you have done many forensic autopsies, to see aspirated blood in the lungs.
MR. SHAPIRO: Wouldn't it have helped you in this case, in reaching your conclusions regarding the injuries to the neck that caused bleeding in the area of the windpipe, to have microscopic slides?
DR. LAKSHMANAN: Not necessary, because you have the cause of death clearly established and injury is an acute injury.
MR. SHAPIRO: It wouldn't be a better way, in your opinion?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Would you say that a reasonable conclusion in a case involving stabbing is that the more stab wounds you find, the more likely there is that a struggle was put up?
DR. LAKSHMANAN: I wouldn't make that conclusion by the number of stab wounds, because there are other factors involved.
MR. SHAPIRO: You have indicated that not all the blunt wounds on the decedents are in the same direction; is that correct?
DR. LAKSHMANAN: I don't know what you mean by blunt wounds. What direction? Which wound are you referring to? If you could specify your question, maybe I will be able to give an answer better.
MR. SHAPIRO: Are all the wounds that you observed on both of these decedents that have blunt ends to them in the same direction?
DR. LAKSHMANAN: No, they are in different--slightly different directions, depending on which wound you are referring to. The wounds on Goldman, they were in different directions. The--Nicole's wounds, two of them were in the same direction. One of them was in a different direction on the left side of the neck.
MR. SHAPIRO: And that clearly indicates that there was movement between the decedent and the perpetrators, doesn't it?
DR. LAKSHMANAN: Yes. I think I opined that the stabbing process is a dynamic process; it is not a static process. I already explained that.
MR. SHAPIRO: And because it is a dynamic process involving movement, you, nor any other medical examiner, has any ability to accurately reconstruct what took place; isn't that correct?
DR. LAKSHMANAN: Accurately reconstruct it, no.
MR. SHAPIRO: Now, you talked about the reaction of an individual, who in this case was Mr. Goldman, and how he, in your opinion, would react to being attacked, did you not?
DR. LAKSHMANAN: Could you read that part of my testimony and then I can refresh my memory what I exactly said? Because I have been testifying for eight days, so I don't know which part of the testimony you are referring to.
MR. SHAPIRO: Your testimony was so long you have already forgotten it?
MR. KELBERG: Objection, your Honor, as argumentative.
THE COURT: Sustained.
MR. SHAPIRO: Was your testimony so long that you already forgot it?
DR. LAKSHMANAN: Well, there were different scenarios posed, different questions asked, so if you can refresh my memory, I will be happy to look at the statements I made and explain it again, if you wish me to.
MR. SHAPIRO: One of the areas you talked about were injuries to the fist?
MR. KELBERG: I think, your Honor--
MR. SHAPIRO: Do you recall that?
MR. KELBERG: Excuse me. That misstates the testimony of the anatomy.
THE COURT: Sustained. Rephrase the question; hands.
MR. SHAPIRO: Did you testify about injuries to the hands?
DR. LAKSHMANAN: Yes, I did.
MR. SHAPIRO: Did you testify that you had read some literature in that regard?
DR. LAKSHMANAN: Yes, I did.
MR. SHAPIRO: Where was that article published that you read?
DR. LAKSHMANAN: I just read a chapter in a sports injury textbook. It was by Foo and Stone is the textbook, by Foo and Stone on sports injuries. It was a chapter on boxing injuries by timothy ward.
MR. SHAPIRO: And when did you read that?
DR. LAKSHMANAN: The last few months, and--
MR. SHAPIRO: Did anybody call that article to your attention?
DR. LAKSHMANAN: No.
MR. SHAPIRO: You just did research yourself?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And that article dealt with injuries to the hand that take place in a fistfight?
DR. LAKSHMANAN: Well, boxing injuries.
MR. SHAPIRO: Boxing with or without gloves?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: It dealt with both injuries that occur with gloves and without gloves?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And there is something in there that you have relied upon as to what you would expect if one individual struck another individual with a closed fist?
DR. LAKSHMANAN: There was information there as to the injuries they have observed in their research material, but when I opined, my opinion was based on my experience and information I gathered from there, so my experience on seeing blunt force injuries also is this when I gave my opinion.
MR. SHAPIRO: What information did you rely on in that article in coming to your opinion?
DR. LAKSHMANAN: Well, I was just saying what type of fractures one would get in the boxing and those other kind of information I was looking at.
MR. SHAPIRO: What information did you rely on in giving your purpose from reading that?
DR. LAKSHMANAN: The information that was just part of the chapter plus my experience.
MR. SHAPIRO: And what information was that that you relied on as to whether or not the victim or victims in this case struck the assailant or assailants?
DR. LAKSHMANAN: I looked at where the injury patterns would happen with reference to if it is a closed fist, if it is a properly laid blow or a glancing--improperly laid blow on the person, what type of injuries you would get, what type of fractures you would get, just improved my understanding of the injury patterns observed by sports injury orthopedic physicians.
MR. SHAPIRO: Would you relate to the jury that section that you relied upon for that opinion?
MR. KELBERG: Objection as asked and answered.
THE COURT: Overruled.
DR. LAKSHMANAN: Basically the area which I looked at was to see what type of fractures you can get. You can get fractures of the first metacarpal bone in a boxer who wears the gloves but the thumb was not in the glove, and you can get a fracture of the base of the metacarpal bone. You can get fractures of the fifth and fourth metacarpal bone, which is the outer little finger bones, if the blow is not improperly placed. You could get injuries to the ligaments on the back of the metacarpal phalangeal joints depending how the blow was applied, et cetera.
MR. SHAPIRO: So what you are saying is if one person hits another person they could hurt their hand?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And you needed to do research to find that out?
MR. KELBERG: Objection, your Honor, as argumentative.
THE COURT: Sustained.
MR. SHAPIRO: How much research did you do to find that out?
DR. LAKSHMANAN: Well, the chapter which just improves my knowledge based on it, but as I already told you, my opinion was based on also our own experience on different blunt force trauma you see in the hand of different individuals.
MR. SHAPIRO: How many bare hand fights have you actually witnessed?
DR. LAKSHMANAN: I have not witnessed bare hand fights, but I have seen people who have died from altercations who have had fights and who have injuries to the face and hand. I have seen many cases.
MR. SHAPIRO: Is there a proper way to throw a punch?
DR. LAKSHMANAN: Well, it is--there is an ideal punch when the whole force delivers its effect on the target and there are blows which may not deliver the entire force on the target.
MR. SHAPIRO: What is the position of the fist in a proper punch?
DR. LAKSHMANAN: Do you want me to demonstrate, your Honor? This would be one way of holding your hand to deliver a punch, (indicating).
MR. KELBERG: For the record, your Honor, with his right hand Dr. Lakshmanan has closed his hand into a fist. His arm is at perhaps a 45-degree upward angle.
THE COURT: Yes.
MR. SHAPIRO: Could you hit somebody with your hand in that position and cause injury to them?
DR. LAKSHMANAN: Well, I have not hit anybody closing my fist, but you could cause definite blunt force injury by hitting somebody hard with this kind of closed fist.
MR. SHAPIRO: Could you cause injury to somebody by hitting them with a closed fist and not cause injury to yourself?
DR. LAKSHMANAN: It is a possibility that you may not get injured, but you could also get bruising of your hand. That is why you do--you can get bruising of the hand, too.
MR. SHAPIRO: So you could get hurt; you could not get hurt?
DR. LAKSHMANAN: That's correct, and I also I think stated that if there were gloves present, there is less chance striking somebody would get hurt and the person who gets hit would get hurt more.
MR. SHAPIRO: Is there something known as a glancing blow?
DR. LAKSHMANAN: Yes, and that would be the one which the blow did not have its full effect on the target, either due to movement of the target being the victim and the--or the reach was not as it was planned to be delivered.
MR. SHAPIRO: So it is possible if someone hits someone improperly that they could only hit with one knuckle or one portion of the hand and not cause injury to other parts of the hand?
DR. LAKSHMANAN: Generally that could happen, theoretically, but if you hit the knuckles you will expect other bruising of the other knuckles in that situation.
MR. SHAPIRO: What if you only hit one knuckle on the chin?
DR. LAKSHMANAN: Well, that is always a possibility, I suppose, but generally, if you look at it in context, you will get injuries to other knuckles, too.
MR. SHAPIRO: Even if only one knuckle came in contact with someone's chin?
DR. LAKSHMANAN: I said it is a possibility.
MR. SHAPIRO: You would expect injuries on other knuckles?
DR. LAKSHMANAN: I said in your theoretical possibility--I mean, your possibility that if only a glancing blow with only one knuckle hitting, then this is a possibility, I suppose, but if you look at it logically, it doesn't make sense that you would only hit one knuckle on somebody, especially in the case of Mr. Goldman, when you have a clear-cut bruise on the middle finger knuckle, it is--it is--it seems unlikely that--that you would not see bruising of the other knuckles, especially when the knuckle which was injured is in the middle of the closed fist.
MR. SHAPIRO: Doesn't the middle knuckle protrude in most people's hands from other knuckles?
DR. LAKSHMANAN: The other knuckles protrude, too. In my hand you can see that both the knuckles protrude.
MR. SHAPIRO: Did Mr. Goldman's index knuckle protrude?
DR. LAKSHMANAN: I didn't close his fist to see that, but just in my experience this is the average appearance of a closed fist, and I think if you take the closed fist of most people, this is the appearance it will have.
MR. SHAPIRO: Have you done any studies on that?
DR. LAKSHMANAN: I have not done studies on that, but I'm just giving you from my experience.
MR. SHAPIRO: What experience is that?
DR. LAKSHMANAN: Experience means my knowledge on this.
MR. SHAPIRO: Where did you obtain this knowledge?
DR. LAKSHMANAN: Practical knowledge. If you close anybody's fist you can see the appearance.
MR. SHAPIRO: So general knowledge that all of us have?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: If someone was attacked from behind, would you expect that the victim would try to kick the assailant?
DR. LAKSHMANAN: That would depend what kind of attack was from the behind, so could you expand on it a little better?
MR. SHAPIRO: Well, you did that demonstration. Maybe you can--with Mr. Kelberg you grabbed him with one hand around his chest and you held a ruler to his throat. Remember when you did that?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Now, if Mr. Kelberg was fighting for his life, would you expect that he might try to kick you to get away?
DR. LAKSHMANAN: That is a possibility, and I did mention it in my opinion, that the victim could have wrestled himself away from the assailant. And a normal human being is not going to just allow somebody to cut your throat. You are going to try and escape from that life-threatening situation.
MR. SHAPIRO: So the reasonable thing to expect is that there would be a struggle?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And that the victim would try to kick?
DR. LAKSHMANAN: That is a possibility.
MR. SHAPIRO: Would try to hit?
DR. LAKSHMANAN: If the victim is being held, yes.
MR. SHAPIRO: Try to hit with closed fist?
DR. LAKSHMANAN: It is a possibility.
MR. SHAPIRO: With an open hand?
DR. LAKSHMANAN: It is a possibility.
MR. SHAPIRO: With elbows?
DR. LAKSHMANAN: It is a possibility.
MR. SHAPIRO: With anything else in the natural instinct to survive the attack; isn't that true?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: Have you--now, part of this you say is you go through all these scientific things that you have studies and then one of the criteria is witnesses, to ask people what really happened or to ask about reactions of people. Is that part of your job?
DR. LAKSHMANAN: Well, I don't talk to witnesses, because we just do our autopsies and review the injuries.
MR. SHAPIRO: In forming your opinion, wouldn't you like to know if the victim was physically fit?
DR. LAKSHMANAN: Well, from the appearance of the body, he appeared to be an athletic young man who was not obese. He was a very athletic, handsome young man.
MR. SHAPIRO: Wouldn't you like to know if that is the person who is likely to perhaps just kowtow to an attacker and melt away and not do anything or whether he is the type of person who would in fact try to defend himself and put up a struggle?
DR. LAKSHMANAN: That is a difficult question to answer, because you are going into areas because sometimes you can have a very big person who can be intimidated by fear, and so I don't know what exactly happened, but theoretically physically athletic person could definitely offer resistance. But if there is fear element involved, they could be just intimidated and just freeze and that is also known to occur, so I really don't know what happened, but I do not what injuries happened, and I have given you my opinion on the injuries as to what could have happened.
MR. SHAPIRO: Would it have helped to talk to somebody and ask what the make-up of the victim was and what the victim would likely do?
DR. LAKSHMANAN: I didn't do that.
MR. KELBERG: That is a compound question.
THE COURT: Overruled.
MR. SHAPIRO: What about Nicole Brown Simpson? Was she physically fit?
DR. LAKSHMANAN: She looked like a young physically fit woman, yes.
MR. SHAPIRO: Is there a difference between the way women react to an attack and men?
DR. LAKSHMANAN: Well, I can't say that because nowadays--not nowadays, any human being can react in the same way in a situation of stress. Either they can fight the attacker or they can be in fear and freeze. So I don't think a difference of sex matters. It is a situation in which the person is put into place.
MR. SHAPIRO: Would it be unreasonable to expect that a woman would fight off an attacker?
DR. LAKSHMANAN: Well, I would expect any human being to fight off the attacker if they are not frozen by fear. You are fighting for your life.
MR. SHAPIRO: And in such a fight for your life you would expect the attacker or attackers to have some injuries or evidence of being in some type of struggle, wouldn't you?
DR. LAKSHMANAN: If the victim was able to deliver some blows, but if the attacker quickly incapacitated them, you may not see injuries on the attacker, so it depends on the situation. It is--I am just giving you my understanding of what could happen, but I have already discussed what injuries each one had. And I already discussed what my opinion on both the victims are. It is in evidence and we could go over the transcript if you want.
MR. SHAPIRO: You told us the minimum amount of time the struggle between Ron Goldman and his attacker or attackers was and you said it could be less than a minute?
DR. LAKSHMANAN: Yes, I did say that.
MR. SHAPIRO: What is the maximum amount of time the struggle could have taken place between Ron Goldman and his attacker or attackers?
DR. LAKSHMANAN: I would say within a few minutes. Because of the nature of the injuries and the acute bleeding, I wouldn't expect the attack to be more than a few minutes because you can't really tell how long, but I would favor it within a few minutes the attack took place, but it could have been done very well within a minute.
MR. SHAPIRO: What if the fatal wound were the last wounds struck?
DR. LAKSHMANAN: There were quite a few fatal wounds. He had two wounds to the chest, one wound to the neck which caused bleeding from the jugular vein. He had an aortic wound. The thigh wound was hot fatal, but it was still causing significant bleeding. The only other wounds you are left with is three, four cuts in the--two cuts on the top of the head--I mean of the back of the head and you have blunt force injuries to the hand, so I think the injuries which were inflicted to him were significant injuries, and I think they could have been done very well within a minute, and I would not expect the struggle to have been more than a few minutes based on the injuries he received. So unless there is any other possibility you want to offer, we could discuss it.
MR. SHAPIRO: All right. Well, let's assume Mr. Goldman was a physical--in very good physical shape, that he is 25 years old, that he is six feet tall, that he works out regularly and that he is not taken by surprise, but he sees attackers and he puts up a really valiant struggle. Is that something that could take place?
DR. LAKSHMANAN: Could you explain what you mean by "Valiant struggle." What exactly happened?
MR. SHAPIRO: He fought his attackers real hard?
DR. LAKSHMANAN: In what way?
MR. SHAPIRO: With his legs, with his hands, with his fists, with his body.
DR. LAKSHMANAN: As I already told you, I don't think he fought the attacker in the manner you are portraying because he was trying to avoid the wounds, as I see it. I think Mr. Goldman was mainly ducking, turning, twisting and backing when these injuries took place, as I already mentioned that he was in a closed environment, and in my own feeling he was rapidly incapacitated. He didn't have a chance. The injuries are in the front of the hands, there is no cuts on the back, so my feeling is he was turning, twisting at some point because of the nature of the clothing injuries we have. He was ducking because he has got injuries to the front of the hands as if he was facing the assailant and most likely backing into the bushes with his flailing hands when the attack took place, and that is my opinion from what I can see of the injuries we have discussed it.
MR. SHAPIRO: Your opinion is that a person or persons with a knife came at Mr. Goldman, and rather than trying to cover his head and face or trying to bend over to protect himself, (indicating), or trying to get into some type of defensive stance, he just put his arms out and started hitting a tree and a fence? Is that your testimony, sir?
DR. LAKSHMANAN: Well, the point is he doesn't have any injuries on the back of the hand. In your demonstration you just said, if he did this, (indicating), the man has got wielding cuts in the left side of the neck from--I mean he has got cuts on the left side of the neck in the face from the wielding knife, so from your demonstration he should have a lot of cuts on the back of the hand which he doesn't have--which he doesn't have pathologically. You saw the photographs. I saw the photographs. There are no back--and there is no injuries to the back of the hand.
MR. SHAPIRO: Is it your testimony that he did not try to defend himself but rather threw his arms out and hit a tree and hit the fence? Is that your testimony?
DR. LAKSHMANAN: No. My testimony is that the injuries I see do not support that hypothetical situation. It supports, rather, a situation which I already opined. He backed, he ducked, he turned, he twisted and he didn't have a chance.
MR. SHAPIRO: And you base that solely on viewing photographs?
DR. LAKSHMANAN: Photographs show the injuries and the description of the report is available for my review, and it is an independent review.
MR. SHAPIRO: And are there other experts whose opinion you trust who could give different scenarios?
MR. KELBERG: Objection, your Honor. That calls for speculation.
THE COURT: Sustained.
MR. SHAPIRO: Based on your expertise are there others who would disagree with that opinion?
MR. KELBERG: Objection, your Honor, as calling for hearsay, speculation and irrelevant.
THE COURT: Sustained.
MR. SHAPIRO: You talked about the tip of the knife and that there was no evidence that any tip of a knife was broken off; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Was a correct examination done to look for a tip of a knife?
DR. LAKSHMANAN: We didn't do x-rays before the autopsy, so--but we did do x-rays after the autopsy, and on the only bony structure which was injured, so that way we did an examination for any foreign body.
MR. SHAPIRO: The x-ray that you did was of what size of the spine?
DR. LAKSHMANAN: The x-ray was of just of the spine specimen removed.
MR. SHAPIRO: What size of the spine specimen as compared to the entire spine?
DR. LAKSHMANAN: It was only three pieces of the vertebra.
MR. SHAPIRO: How large were those three pieces of the vertebra?
DR. LAKSHMANAN: One portion was a portion of the vertebra; the other two were intact.
MR. SHAPIRO: What size were they?
DR. LAKSHMANAN: They were typical size which is a normal size with a couple of inches length of the spine which was removed which was x-rayed; not the entire spine, no.
MR. SHAPIRO: Would you show the jury, just holding your hand, what size of a portion of the vertebra we are talking about?
DR. LAKSHMANAN: We had a length of the spine of this length, approximately, (indicating). Each body is about so much, so you are talking about this length of spine which was examined.
THE COURT: Approximately three or four inches.
MR. SHAPIRO: Is it a medical possibility that if the tip of a knife broke off in that area that it could dislodge itself without a medical examiner finding it?
DR. LAKSHMANAN: Generally, no, because usually when a knife tip breaks, the knife tip is stuck to the bone. In my experience I have had two cases where we have seen this. The tip which is broken is imbedded in the bone, they won't fall off, because what breaks it is the tip gets stuck and then the knife is twisted, the tip breaks and it is imbedded in the bone, at least in my experience in the two cases I have been involved, the knife tip gets struck and you have to virtually take it out of the bone with the help of x-rays. So to answer your question, I don't think it is likely.
MR. SHAPIRO: So based on those two times that you have seen a knife tip in a bone, you would opine that it is not reasonable that a knife tip could become dislodged and go to another part of the body?
DR. LAKSHMANAN: Generally not. That is my feeling on it from my experience, because as I told you, the tip is the one which gets broken--the tip is usually very small. It is not a big chunk which gets broken. And the tip gets stuck this bone, in my experience, but--and I'm going with my experience.
MR. SHAPIRO: Is it possible that the tip of the knife or knives could have been broken in any other portion of the body, other than that small fragment of spine that you saved?
DR. LAKSHMANAN: Generally not. Usually the knives break when they hit bony structures, because when you have a soft tissue structure and you have a sharp instrument, there is no resistance. You usually break an instrument when there is resistance, and the resistance is compounded by the tip getting stuck somewhere. So in my experience and my reading of the subject, it would be most likely if the knife struck a hard bony structure and not a soft tissue structure.
MR. SHAPIRO: Now, to ask the question the way they were asked on direct examination, could someone be cut with a knife, have the tip broken off and have it not lodged in the only small area of the spine that you covered?
DR. LAKSHMANAN: As I told you from my experience, I don't think that is very likely, but unless you have some information which you can provide me which shows that that is happened in other cases.
MR. SHAPIRO: My question isn't isn't it likely. My question is could it happen?
DR. LAKSHMANAN: Theoretically it is possible, but from what I just opined, medically it doesn't seem possible.
MR. SHAPIRO: And wouldn't the best way to determine that be by taking an x-ray?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And x-rays were not taken in this case?
DR. LAKSHMANAN: I have already said that.
MR. SHAPIRO: And they were not taken because the x-ray machine was broken?
DR. LAKSHMANAN: I don't have an exact answer for that. I don't think the doctor felt it was necessary to do it at that time, but when I got involved in the case later, I ordered x-rays to be done on the spine, which we have, and most importantly, most importantly, during the examination Dr. Golden saved the only bony injury he observed, which was the spine. He saved it for storage.
MR. SHAPIRO: How much later did you take the x-ray--order the x-ray to be taken?
DR. LAKSHMANAN: I have to refer to the report, but I think it is sometime in September of last year when I ordered it to be done and I asked our radiologist to look at it.
MR. SHAPIRO: What happened during the three or four months which caused you to form the opinion that x-rays taken on the 13th were proper to take?
DR. LAKSHMANAN: I just felt to complete the process to make sure we didn't miss anything. I just wanted to make sure, because the wound patterns didn't suggest the knife was broken, but I felt to complete the process we needed to make sure that we didn't miss anything which may be of importance in the case. And I just completed an investigation. Just like I ordered the c-screen, I ordered this also to complete the procession to make sure we didn't miss anything.
MR. SHAPIRO: Because you felt those were the proper things to do?
DR. LAKSHMANAN: Well, you can put it that way, yes.
MR. SHAPIRO: And if they were proper to do in September, they were certainly proper to do in June, weren't they?
DR. LAKSHMANAN: Yes, but I also said that we saved what was essential. Dr. Golden saved the only major bony injury he observed on both the cases in storage. We had the specimen.
MR. SHAPIRO: But you are relying on somebody's observations who you've already told us makes lots of mistakes?
MR. KELBERG: Excuse me, your Honor. That mistakes the testimony.
MR. SHAPIRO: Makes mistakes?
THE COURT: It is an argumentative question. Rephrase the question.
MR. SHAPIRO: You are relying on the opinion of someone else who you have already told us has made several mistakes in this autopsy; isn't that correct?
DR. LAKSHMANAN: Yes, but I also said they were not significant as to the outcome of the case. There were some mistakes but they were all of the non-lethal injuries.
MR. SHAPIRO: As you testify today here as an expert, would you say that a certified medical examiner should know the difference between an entrance and an exit wound caused by a bullet?
DR. LAKSHMANAN: Yes, but there are difficulties even for the most expended pathologist sometimes to differentiate an entrance and an exit when you have what's called a short exit, but I agree that a pathologist should be able to tell, but sometimes it is difficult--
MR. SHAPIRO: Okay. And--
DR. LAKSHMANAN: --on certain situations.
MR. SHAPIRO: And you told the jury here yesterday that Dr. Golden made such an error?
DR. LAKSHMANAN: I did say that and it is the truth, he did make an error on that case.
MR. SHAPIRO: And you also--would you also opine that a board certified medical examiner should know the difference between a gunshot wound that is fired at a distance and one that is fired at close range?
DR. LAKSHMANAN: Yes, and I opined on that also yesterday.
MR. SHAPIRO: And Dr. Golden you told us made that mistake?
DR. LAKSHMANAN: Yes, he did.
MR. SHAPIRO: And you--do you think an expert board certified medical examiner should be able to tell whether or not a thyroid is present during an autopsy?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And you told us that mistake was made by Dr. Golden?
DR. LAKSHMANAN: Yes, but that mistake is something on somebody who is on thyroid, they are--anyway, that is a mistake, yes.
MR. SHAPIRO: And you still rely upon what Dr. Golden did as being correct in forming the basis for your opinions in this case, don't you?
DR. LAKSHMANAN: Yes, I do, and--and the reason is he has done 5000 plus cases. I know him personally as a pathologist and I know he is a capable doctor and I have seen his work on other cases. These are mistakes which have been acknowledged and I have no hesitation why I can't rely on this report.
MR. SHAPIRO: You know about the case where there were two people who were victims with a gunshot wound that we talked about?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Yesterday Mr. Kelberg brought that up, that you said addendums were filed in those cases to correct the mistakes?
DR. LAKSHMANAN: One addendum had been filed. When I reviewed the cases the second addendum was filed on the--the addendum on the sex case was filed and I also had to make a correction on the first case at that time.
MR. SHAPIRO: There was an autopsy that took place in 1990?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: And a case that was prosecuted as a capital murder case?
MR. KELBERG: Objection, your Honor, and counsel indicated he would--
THE COURT: Sustained.
MR. SHAPIRO: In this case one correction was made in 1993; is that correct?
DR. LAKSHMANAN: I have to look at the papers, but that sounds about right.
MR. SHAPIRO: Was--
THE COURT: I'm sorry, "In this case" you said?
MR. SHAPIRO: In the case that we are talking about.
THE COURT: All right.
MR. SHAPIRO: In the case we are talking about where the errors were made regarding the gunshot wound.
DR. LAKSHMANAN: That sounds about right, but I would like to refresh my memory.
MR. SHAPIRO: Were both errors corrected at about the same time?
DR. LAKSHMANAN: No, the second error--correction. The error on the other case, the close-range gunshot wound, that was done last year in `94. When I found that the addendum had not been done, I directed Dr. Golden to do the addendum. Another error on the change in direction was done probably in `93, I don't recall the date exactly, and so the addendums are the two mistakes were done at two different times, one at my direction, since it had not been done, and one which was done by Dr. Golden himself earlier in 1994. I also directed a change in the addendum on the other case because there was a typographical error on the number. They typed 9679 instead of 9678 and that addendum was made. So to summarize, we did one addendum in--if it is `93 I don't recall the exact date, but in `94 two addendums were issued, one for each case, one for the number change and one do reflect the range of fire.
MR. SHAPIRO: All right. May I just finish on this line of questioning?
MR. SHAPIRO: To get the sequence of events, two people were killed relatively--in the same crime scene in 1990 and autopsies were done by Dr. Golden?
DR. LAKSHMANAN: Yes, sir.
MR. SHAPIRO: In one case he said that it was a--he missed whether or not it was a point blank injury from a distance injury; is that correct?
DR. LAKSHMANAN: Yes, sir.
MR. SHAPIRO: And in the other he made a mistake as to whether it was an entrance or exit wound?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: The mistake in one of them was corrected in June of 1993?
DR. LAKSHMANAN: If that is the date. I said I have to refresh my memory.
MR. SHAPIRO: Let me get those for you.
MR. SHAPIRO: And the mistake in the second case was corrected in September of 1994?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Were both mistakes discovered at the same time?
DR. LAKSHMANAN: Well, that is my understanding.
MR. SHAPIRO: Shall we take the recess at this time, your Honor?
THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break. Please remember all my admonitions to you. We will be in recess for fifteen minutes.
(Recess.)
(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. All the parties are again present. The jury is not present. Counsel, anything we need to take up before we invite the jurors to join us?
MR. KELBERG: No, your Honor.
THE COURT: All right.
MR. SHAPIRO: May I ask Miss Robertson the exhibit number of the last photographs?
MR. SHAPIRO: 1194.
MR. SHAPIRO: 1194?
MR. KELBERG: Actually, did you ever mark for the record, Mr. Shapiro, the driver's license?
MR. SHAPIRO: No. So that should be 1193. It's already--the original is already in evidence.
THE COURT: I had Mrs. Robertson bring that up because I thought the original Ronald Goldman driver's license was in evidence, but what we have is an elmo picture of it and it is not readable from the elmo.
MR. KELBERG: So what designation does that have?
THE COURT: That is People's 85?
MR. SHAPIRO: People's 85.
THE COURT: That's People's 85.
MR. KELBERG: Do you want to just--I don't know if Mr. Shapiro has some need to have it as a Defense exhibit designation or do you just want to make it 85-A?
THE COURT: Let's make that--Mr. Shapiro?
MR. SHAPIRO: Yes.
THE COURT: I would prefer to have that as 85-A so we have all the Ronald Goldman driver's license--
MR. SHAPIRO: That's fine.
THE COURT: --in the same chandra so to speak. Okay.
(Peo's 85-A for id = driver's license)
THE COURT: Let's have the jurors.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we've been rejoined by all the members of our jury panel. And, Dr. Lakshmanan, would you resume the witness stand. Doctor, you are reminded, sir, you are still under oath. And, Mr. Shapiro, you may continue with your cross-examination.
MR. SHAPIRO: Thank you, your Honor. Hopefully we will try to conclude by the recess this afternoon.
MR. SHAPIRO: Dr. Lakshmanan, is trace evidence important to a medical examiner?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Is preservation of trace evidence important to a medical examiner?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And for proper preservation of trace evidence in a homicide, is it proper procedure to bag the hands of the decedent?
DR. LAKSHMANAN: We do it if--in cases of firearm injuries. We don't do it routinely in our office.
MR. SHAPIRO: Is it acceptable proper procedure throughout the forensic science community in pathology?
DR. LAKSHMANAN: Well, I just told you what is done in our office. We do it on certain types of cases, not in all cases.
MR. SHAPIRO: Is trace evidence susceptible to being on the hands in a case of a knife attack?
DR. LAKSHMANAN: Could you tell what type of trace evidence you're talking about?
MR. SHAPIRO: Any kind of trace evidence; hair, fibers, blood from someone else, skin from someone else. Would any of those things be important to a forensic pathologist?
DR. LAKSHMANAN: If he observe it, yes.
MR. SHAPIRO: Would you say that bagging the entire body protects the hands during transportation from a crime scene to the crime lab?
DR. LAKSHMANAN: That's not our procedures, but I wouldn't object to that.
MR. SHAPIRO: Would that protect the hands if there was trace evidence on the hands, by bagging the entire body?
DR. LAKSHMANAN: No. It would be preferable to--if you have suspicion of something you want to collect and you want to preserve it, then bagging would be an option.
MR. SHAPIRO: Is it the policy of forensic pathologists that when bodies are moved for transportation, that they should be kept in the same position they are found to preserve trace evidence and bloodstains that may be on the body?
DR. LAKSHMANAN: If the--in our office, if the investigator feels that is necessary and if it cannot be collected at the scene by our criminalist or other person, then they would do the necessary procedure which would preserve that evidence.
MR. SHAPIRO: Isn't it true that if the position of the body is changed in transportation, bloodstains may be smeared and contaminated and contaminate other trace evidence?
DR. LAKSHMANAN: It's a possibility I suppose depending on what type of evidence you're talking and where it is located and what position the body was on when transported.
MR. SHAPIRO: Do you know if Dr. Golden examined the bodies of the decedents in this case prior to them being cleansed and washed?
DR. LAKSHMANAN: Yes. He examined the bodies on the 13th and I think he examined them again on the 14th.
MR. SHAPIRO: Did you examine them with him?
DR. LAKSHMANAN: I examined the bodies briefly on the 13th when the bodies were brought in, and I--I was the one who assigned the cases to Dr. Golden who also volunteered to do the cases. And then after that, I don't know how many times he saw the bodies on the 13th or the 14th. But on the 14th, he did see the bodies during the photographic process.
MR. SHAPIRO: Did you yourself do a careful examination of the bodies for trace evidence?
DR. LAKSHMANAN: No, I did not. I just did a brief examination and to see the extent of the injuries, and I had to make a decision on whom to assign the case. So I did not do a detailed examination, no, sir, I did not.
MR. SHAPIRO: Did you observe Dr. Golden do a detailed examination for trace evidence before the bodies were washed and cleansed?
DR. LAKSHMANAN: I did not observe him on the 14th. I already said that.
MR. SHAPIRO: Does the Coroner's office have video equipment?
DR. LAKSHMANAN: Yes, we do.
MR. SHAPIRO: Were videotapes taken of the postmortem examinations of Nicole Brown Simpson and Ronald Goldman?
DR. LAKSHMANAN: No.
MR. SHAPIRO: In conducting your work, do your personnel use head coverings add shoe coverings?
DR. LAKSHMANAN: Yes, we do.
MR. SHAPIRO: And is that because you're concerned about contamination?
DR. LAKSHMANAN: No. The clothing we wear is for our protection. We have universal body and blood fluid precautions in our department, and all our employees who enter the high-risk areas, which is the autopsy room, are provided with all the apparel necessary to conduct such a high-risk procedure, which is an autopsy.
MR. SHAPIRO: Are gloves always changed by pathologists and assistants between bodies?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Should personnel handling the bodies at the scene wear proper covering, shoe covering and gloves?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Was that done in this case?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Are you sure of that?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: You told us an assault--sexual assault kit was not performed on Nicole Brown Simpson?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Isn't it true that you could have done a sexual assault kit test quicker than the time you took to explain why you didn't do it in this case?
DR. LAKSHMANAN: Well, I already discussed this. We didn't take it. I was asked why we didn't take it. I gave an explanation. So I really--I don't know what more to say. We didn't take it and I've already said that and I gave you the reasons why the criminalist didn't take it, and I also felt we did not need to take it when I looked at the case.
MR. SHAPIRO: How long does it take to do a sexual assault kit?
DR. LAKSHMANAN: It's a--it's a procedure which takes some time because the criminalist has to have a space available, photographs are taken during the process as the case may be necessary because you have to remove the clothing. So you're talking anywhere up to an hour of time involved of different personnel.
MR. SHAPIRO: One hour it takes?
DR. LAKSHMANAN: Between an hour--approximately less than an hour depending on what needs to be done.
MR. SHAPIRO: Less than an hour?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: How much less than an hour?
DR. LAKSHMANAN: Well, depends on the criminalist who's doing the procedure.
MR. SHAPIRO: Well, let's talk about a board certified senior criminalist. How long would it take that person to do--
THE COURT: I think we're mixing up our terminology here.
MR. SHAPIRO: I probably am.
THE COURT: Criminalist, not pathologist.
MR. SHAPIRO: Yes. Pathologist. Thank you very much, your Honor.
MR. SHAPIRO: A board certified pathologist.
DR. LAKSHMANAN: In our department, the pathologists don't do the collection. We get the criminalist to do it because they're better trained to do it than us and we have the luxury of having them on our staff. So they do it for us.
MR. SHAPIRO: How long does it take them to do it?
DR. LAKSHMANAN: I said within an hour. I guess it could be done within half an hour depending on the skills of the criminalist.
MR. SHAPIRO: How much does that kit cost?
DR. LAKSHMANAN: I don't know the cost, sir.
MR. SHAPIRO: Is it expensive?
DR. LAKSHMANAN: It's not expensive.
MR. SHAPIRO: In trying to establish time of death, one of the factors you look for, other than the scientific factors, are witnesses; is that correct?
DR. LAKSHMANAN: I said yesterday on the testimony independent verifiable evidence of witnesses.
MR. SHAPIRO: And also, if there was evidence of consentual sex, might not that be of some benefit in assessing time of death?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Well--
DR. LAKSHMANAN: What you will get there is only the postcoital interval, and even that is very vague and nonspecific in its estimation. You cannot get time of death from the intercourse--I mean from just doing the sexual assault.
MR. SHAPIRO: But if you did a sexual assault kit, would that verify whether or not there may have been sexual consentual sex prior to death?
DR. LAKSHMANAN: It may reflect that.
MR. SHAPIRO: And if a person's pattern could be established when they might have time alone to engage in consentual sex, could that be of some benefit in assessing when this person was last alive?
DR. LAKSHMANAN: It won't have any benefit when the person was last alive because you cannot make an estimation of time of death from the sexual assault. Even--the basic aim when you do that is to see the postcoital interval. You can only try and tell when the coitus took place, but even that is a very vague subject because of the various variabilities involved in this.
MR. SHAPIRO: What if you established that a person was in this courtroom the entire day except for one hour during lunch and then did a sexual assault kit and found out that person had some type of sexual relationship? Would that help you determine time periods in any way?
DR. LAKSHMANAN: It's very difficult to estimate time periods because I already said there is so much variability as I said. Let's take even the sperm mobility. I said sperm mobility is within--usually it stops within four hours, but it could be longer too.
MR. SHAPIRO: Let's try to be practical. Let's say this morning, somebody was in this courtroom. It would be clear they didn't have consentual sex while they were here; is that correct?
DR. LAKSHMANAN: That is a fair statement.
MR. SHAPIRO: And if they came back from 1:00 o'clock to 5:00 o'clock and they didn't have consentual sex with anyone present, that would be a fair assumption; would it not?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And if between 12:00 and 1:00 o'clock, they were not seen by anyone, and if that person expired at 5:15 and a sexual assault kit was done to show that there was evidence of consentual sex, could that be of some benefit? Yes or no?
DR. LAKSHMANAN: I want to know what type of evidence you're talking about. I want--and--and I can't make any assumption whether it's consentual or not, and all you can tell from--depending on what evidence you have in your hypothetical, if you could tell that, then we can go forward on that. What is the evidence which was seen at 5:15 when the sexual assault is done?
MR. SHAPIRO: At 5:15, it was determined that the person had some type of sexual relationship. Could that be of any importance to you? Yes or no?
DR. LAKSHMANAN: Well, it will only say that there was a sexual relationship if you find evidence of sperms or the enzymes, but it doesn't give anything further than that.
MR. SHAPIRO: But other things could, couldn't it?
DR. LAKSHMANAN: No. To make an assumption, you must have done a sexual assault in the morning before the Court started to make sure that was negative to make any conclusions on the result you get at 5:15, because the material could have been there for more than a day or two depending on what the circumstances are and because you can have coitus, you may--it could depend on the amount of ejaculation in the body. It could be a non-ejaculated intercourse. It could be coitus interruptus as I--what they call. It could be that the lady had some vaginal douches after that. And there are a lot of variables in this. So you can't really make an assumption when the sexual act took place just because you have a sexual assault kit done at 5:15 unless you have done a sexual assault previously that morning or that afternoon to prove that there was nothing there and then you have something there at 5:15. So again, that's why I'm saying your question is a little bit vague to give a specific answer.
MR. SHAPIRO: Doesn't your manual specifically say, doctor, that whenever identification of the last sexual partner may be of value to the investigation or whenever elimination of sexual activity may be of value to it, the examination, a sexual assault kit, whether the allegations or thoughts are consentual or nonconsentual, should be done?
DR. LAKSHMANAN: That's correct. If you read the manual, and I remember that statement in the manual.
MR. SHAPIRO: And a sexual assault kit will show other things other than rape, won't it?
DR. LAKSHMANAN: It will show evidence of seminal material there.
MR. SHAPIRO: Which it could show evidence of oral sexual conduct--contact?
DR. LAKSHMANAN: If the oral area is examined, which is part of the sexual assault kit in our office, you'll find evidence for it.
MR. SHAPIRO: I want to direct your attention to the marks on the back of Nicole Brown Simpson that you described as bruises. Do you know what I'm referring to?
DR. LAKSHMANAN: Yes. The right lower back. I remember it very well.
MR. SHAPIRO: And to a similar area on the back of the decedent Ronald Goldman that you referred to as lividity.
DR. LAKSHMANAN: On the right side of the back, yes.
MR. SHAPIRO: Isn't it true, doctor, by looking at the photographs alone, that you cannot determine lividity from a faint nonpatterned contusion?
DR. LAKSHMANAN: You can. In this case, you can because it's very localized. Usually lividity will take place in the whole area of the body, and that area of the body is actually more of an area--the rest of the body on the right side doesn't show any other discoloration. The lividity of Miss Nicole was on the left side, not on the right side. These are distinct areas of discoloration consistent with bruising in my opinion.
MR. SHAPIRO: That's your opinion?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Okay. Would you agree that as a medical examiner and expert in forensic pathology that the only true way to distinguish the difference in such a case would have been to incise the area of the skin to see if hemorrhage was present?
DR. LAKSHMANAN: That is correct. If I was doing the autopsy, that could have been--should have been done. But this is an injury, as you recall, was not observed by Dr. Golden when he did the autopsy. And this was reviewed by me on the photographs and also the--our dental consultant had seen the same injury when he reviewed the photographs. He even considered this for evaluation of his bite mark. And in my opinion, based on the distribution, the localization, the patchiness and the presence of lividity to the other side and the lack of any other discoloration to the rest of the body on the right side, I have no doubt in my mind that is an area of nonspecific blunt force injury with patterned mortal contusion ecchymosis. It's not lividity. That's contusion on the right back.
MR. SHAPIRO: But you would agree that to correctly make this evaluation from a forensic pathology point of view, that you would have to do an incision?
MR. KELBERG: Objection, your Honor. Asked and answered.
THE COURT: Overruled.
MR. KELBERG: It was asked, but not answered.
MR. KELBERG: Objection to counsel's comments.
THE COURT: Sustained. Rephrase the question.
MR. SHAPIRO: Isn't it true that for a forensic pathologist to give a medical opinion, you would have to do an incision?
DR. LAKSHMANAN: If you have a question whether it's lividity or contusion or you feel it necessary to do--to prove it is a contusion, you need to make an incision, and usually we make an incision to see the depth of hemorrhage so that you can have an idea what the blunt force.
MR. SHAPIRO: That wasn't done in this case, was it?
DR. LAKSHMANAN: Yes. I already said that. This was an injury which was not observed and it was not addressed until I reviewed the photographs and we addressed it. And I have already discussed that in my direct testimony.
MR. SHAPIRO: Also, if microscopic slides were taken of this area, that would have had--enabled a forensic pathologist, expert medical examiner to distinguish a bruise or contusion from an area of lividity; isn't that correct, sir?
DR. LAKSHMANAN: If you can't make the diagnosis initially. I think I already opined that. Once you--you do microscopic sections only if you need to date an injury. The injury diagnosis is made on gross exam. Sectioning of the skin I agree would confirm your gross--gross means visual impression, and microscopic exam is done only to date the injury.
MR. SHAPIRO: Is it true, sir, that trace evidence should be removed and thoroughly looked for on the hands before the hands are fingerprinted?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Was that done in this case?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: How do you know?
DR. LAKSHMANAN: Because Miss Claudine Ratcliffe and I discussed it. I asked her what was exactly done and she told me that. And that's our normal procedure. You take all the evidence before you do fingerprinting.
MR. SHAPIRO: Have you seen photographs of the hands with fingerprint powder on them showing that the fingerprints--that the fingernails had already been clipped?
DR. LAKSHMANAN: I have not seen any photographs bear that as--
MR. SHAPIRO: Do you know if photographs were taken of the fingers before the fingernails were clipped and the body is fingerprinted?
DR. LAKSHMANAN: No. The photographic process usually takes place in our office after the evidence is collected because during the photography process, you wash the body. So all evidence in on office is collected before photography for the autopsy purposes. So the evidence was collected when the bodies came in on June 13th.
MR. SHAPIRO: Isn't it true that during the course of fingerprinting that valuable trace evidence could be lost?
DR. LAKSHMANAN: But I told you the evidence is collected before the fingerprints. But in your hypothetical situation, if fingerprints are done before the evidence is collected, then there's a possibility you will contaminate the trace evidence.
MR. SHAPIRO: You testified that it's the province of the Coroner's office to notify the next of kin; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: That wasn't done by the Coroner's office in this case, was it?
DR. LAKSHMANAN: On one of the victims, we notified the next of kin I think and the other person, I think Detective Lange notified the next of kin. I'm a little confused on which one we did, but one was informed by the police. So the police agency can notify the next of kin on our behalf, but it is a function of our office.
MR. SHAPIRO: You have testified that there was a lot of blood lost by both victims in this case?
DR. LAKSHMANAN: I said significant blood loss, yes.
MR. SHAPIRO: And that the carotid artery when severed results in blood actually pumping out?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Would you expect the perpetrator or perpetrators, if they were wearing gloves, to have those gloves soaked in blood?
DR. LAKSHMANAN: There could be some blood contamination on the glove when the incision of the neck was made if you are referring to Miss Brown Simpson.
MR. SHAPIRO: Would you expect the perpetrator or perpetrators to have a significant amount of blood on them?
DR. LAKSHMANAN: Not in the--from the last wound which I discussed where the perpetrator's in the back and the neck was cut from left to right with the head being tilted, in that position, the perpetrator will not have much blood on the person because he's behind the victim. But the possibility of some contamination of the glove I can't exclude because the hand is in front of the neck and after all, the incision is going from left to right. So the bleeding from the initial vessel which is cut may contaminate the glove. But I will be surprised if the perpetrator in that situation would get any blood contamination on the--on him--on that person.
MR. SHAPIRO: What about on the contact with Mr. Goldman? If they were to face to face as you opined at some point in time during this dynamic encounter they were, would you expect the perpetrator to have blood on him?
DR. LAKSHMANAN: In Goldman's case, the neck injury was a jugular vein injury. There would be blood which will be--and also in the right neck area, there would be blood loss and there could be some contamination on the perpetrator. But the abdomen and chest wounds, the bleeding will be mostly internal. So you do not necessarily have blood on the perpetrator. And I also would like to emphasize that the jugular vein injury won't spurt blood like the carotid injury which we discussed earlier.
MR. SHAPIRO: Isn't it true that decedents continue to bleed after death?
DR. LAKSHMANAN: Well, you'll have some oozing of blood from the remaining blood in the cut end of the vessel, but you won't have any pumping of blood or--because there's no blood pressure. So there would be some leakage of the residue blood in that vessel, human. It's just like you have a garden hose, you turn the water off. Still there's some blood--water coming out of the tube even though the water has been turned off, whatever water is left in the tube. So you won't have any active bleeding, you won't have any bleeding of the tissues, but there could be some residual leakage of an existing--remaining blood in the human, but that's usually the--that's very, very minimum if at all there is some.
MR. SHAPIRO: You have no way of knowing regarding Nicole Brown Simpson what position her neck went in after it was cut, do you?
MR. KELBERG: Excuse me, your Honor. It's vague since she has multiple wounds in the neck.
MR. SHAPIRO: Regarding any of the wounds to her neck, do you know what position her neck went in after injuries to her neck?
DR. LAKSHMANAN: After the injury, she was left in the prone position. So I really can't tell you which position the neck was left in after this cut. But since she could have died very rapidly after the injury, it could be the same position she was found in.
MR. SHAPIRO: And it could not?
DR. LAKSHMANAN: It may have been in a different position, but still she would have to be prone with the face-down position because all the blood flow is on the floor and there's nothing on her feet.
MR. SHAPIRO: And you don't know if the body twisted at all, do you?
DR. LAKSHMANAN: No. I don't know that.
MR. SHAPIRO: And nobody knows that, do they?
DR. LAKSHMANAN: That's correct.
MR. SHAPIRO: And you don't know if the killer or killers were large strong people, do you?
DR. LAKSHMANAN: It's difficult to tell the size of assailant. But given my opinion on Mr. Goldman's where you have parallel cuts to the neck, the perpetrator must have been at least as tall or taller to get those parallel cuts because to hold--because obviously Mr. Goldman was immobilized and there were parallel cuts to the neck. It will be difficult for a perpetrator of smaller size to inflict those parallel cuts to the neck. It will be difficult. I'm just saying it will be--
MR. SHAPIRO: Are you saying a small person couldn't hold a knife up and make parallel cuts to a neck?
DR. LAKSHMANAN: Well, these are very parallel cuts. One goes all the way around. And I already said that cut, I will expect it to be from--the perpetrator being in the back and the victim being in the front of the perpetrator. And since they were controlled cuts, in my opinion, the victim was most likely immobilized during that--during that position when that wound was inflicted. So I would--based on that, I said I would favor the perpetrator to be at least of larger size or equal size of Mr. Goldman to immobilize him when this took place.
MR. SHAPIRO: Well, based on the evidence that your office has presented, then you would opine that the perpetrator was at least five foot nine and weighed 170 pounds?
DR. LAKSHMANAN: Well, that's what I said. I mean that's what the weight is in the chart. And at least you must be equal size or more to really immobilize somebody. But it would be preferable for somebody to be larger size to really immobilize a person because, as you know, in general terms, a stronger person is--finds it easier to immobilize a smaller person than people of equal size.
MR. SHAPIRO: What about a smaller person who is very agile and quick and strong?
DR. LAKSHMANAN: Well, as I said, the stab wounds could have been that--for that, it's a possibility, but not for these controlled cuts. I would favor what I already said.
MR. SHAPIRO: Have you ever seen small people beat big people?
MR. KELBERG: I'm sorry? Beat?
MR. SHAPIRO: In fights.
DR. LAKSHMANAN: Well, it's been reported there are smaller people who are more well-trained in martial arts than bigger people. So yes, they can beat big people.
MR. SHAPIRO: Regarding the stomach contents that were saved of Ronald Goldman, you were relying on the findings that you observed or that Dr. Golden observed regarding what those stomach contents contained?
DR. LAKSHMANAN: I observed the stomach contents on June 22nd when we looked at the jar, but we didn't open it. But mainly on Golden's stomach content report.
MR. SHAPIRO: You had an opportunity to look at it yourself?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Is this something that you wanted to review and check to see if Dr. Golden was accurate in his description?
DR. LAKSHMANAN: I did not do it independently.
MR. SHAPIRO: Is this something that should have been done by you independently if you were reviewing Dr. Golden's autopsy protocol?
DR. LAKSHMANAN: Well, I didn't see the necessity to do it because describing a stomach contents--and furthermore, it was only some spinach pieces and liquid. I didn't do it independently, any further studies on it.
MR. SHAPIRO: Well, what if he was wrong about what the stomach contents are and wouldn't that have some effect as to where he had his last meal?
DR. LAKSHMANAN: Well, it doesn't have any bearing on the cause and manner of death of the injuries which I've described already.
MR. SHAPIRO: What about the time of death? If stomach contents were different than that described by Dr. Golden, would that have any effect on the time of death?
DR. LAKSHMANAN: I already opined on the time of death yesterday. It's such a variable factor. It's only an estimated range.
MR. SHAPIRO: What if somebody says that when he left Mezzaluna restaurant, he had nothing--he ate only spinach and that stomach contents reveal residue from ice cream? Would that have any effect?
MR. KELBERG: Objection. That assumes facts not in evidence.
THE COURT: Overruled.
MR. KELBERG: Vague.
DR. LAKSHMANAN: I would like to refer to my notes because I remember seeing the contents. I can refer to it and then I can--I would like to defer that question for a little bit, because I do recall seeing the contents, but I would like to refer my report before I say anything further on this question.
MR. SHAPIRO: Are you saying now that you have some--you don't remember what the stomach contents were of Ronald Goldman?
DR. LAKSHMANAN: Well, I recall that they appeared to be the same, what was described by Dr. Golden. But I would like to refresh my memory before I answer this question further.
MR. SHAPIRO: How long will it take you to do that?
DR. LAKSHMANAN: A short time. I can look at my report.
MR. SHAPIRO: It's up to your Honor.
THE COURT: Be my guest.
(Brief pause.)
THE COURT: And may I see Mr. Shapiro and Mr. Kelberg for a moment, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Let's allow the doctor to find the place in his notes and refresh his recollection.
(Brief pause.)
DR. LAKSHMANAN: Okay. I examined the stomach bottle during the time we examined the body with Dr. Baden. My notes are here. The stomach shows fragments of the green leafy material, thick cord-like material, masticated. So my notes reflect that I did see the contents, and so my recollection is that the contents as described by Dr. Golden is accurate.
MR. SHAPIRO: Spinach.
DR. LAKSHMANAN: These are my original notes we took during the process. So that's why I pulled the original notes. That's why I did it.
MR. SHAPIRO: Are you done? I'm sorry.
DR. LAKSHMANAN: I'm done.
MR. SHAPIRO: So your notes confirm what Dr. Golden put into the protocol, that there was spinach?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: That was the only thing observable in the stomach contents of Ronald Goldman?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Your Honor, I have a series of photographs that I've shown to counsel. I would like to mark them 1194-A.
THE COURT: All right. Defense 1194-A.
MR. SHAPIRO: Through J.
THE COURT: A through J.
(Deft's 1194-A through J for id = photographs)
MR. SHAPIRO: May I approach the witness, your Honor?
THE COURT: You may.
MR. SHAPIRO: Doctor--
MR. KELBERG: May I also?
MR. SHAPIRO: Dr. Golden--Dr. Lakshmanan, are those the--look at 1194-A. Do you recognize that as a container that's used in your department?
DR. LAKSHMANAN: Yes. This is a container from our department.
MR. SHAPIRO: Now, I'd like you to go through the next series of photographs and describe what you see, the next one being B I believe is the contents taken outside the container. Would you describe what 1194-B is?
DR. LAKSHMANAN: This looks like some pasty brownish material with some greenish leafy fragments seen in it on gross examination of this photograph. This is 1194-A.
MR. SHAPIRO: That looks like stomach contents containing spinach?
DR. LAKSHMANAN: Well, it's not like looking at it directly as we did on June 22nd, but it could be interpreted as such. But I would not like to interpret from the photograph, but from previous knowledge, yes.
MR. SHAPIRO: So your previous knowledge in this case is better than the photographs?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Okay. Would you go through the remaining photographs and describe what they show?
MR. SHAPIRO: And I think just out of respect, that these are probably not properly placed either on the elmo or to the jury.
DR. LAKSHMANAN: I would like to know the--what this is--this particular photograph is. I can't--
MR. KELBERG: Your Honor--
MR. SHAPIRO: Does that look like tomato peel?
MR. KELBERG: Excuse me. First of all, I'd ask that the witness speak up.
THE COURT: Yes.
MR. KELBERG: That Mr. Shapiro allow the witness to answer. And I'm not sure what photograph it is that the doctor--
THE COURT: Yes. Doctor--yes. I hear you, Mr. Kelberg. Doctor, would you tell us which photograph you're looking at?
DR. LAKSHMANAN: I'm looking at now D which shows a close-up of the same contents, and there's some laparo photographs of the--some material which has been separated out from the contents.
THE COURT: And, doctor, which photograph is that?
DR. LAKSHMANAN: This is 3 and--E and F and--
MR. SHAPIRO: Can you describe further what appears to be separated in those? Do you see food particles?
DR. LAKSHMANAN: Yeah. This looks like vegetable matter to me, and there's a close-up of the vegetable matter in--I think this is G, your Honor? G. And there's a close-up of other vegetable matter which looks like an H, and there's also some two close-up photographs of another vegetable matter here which is I, and this one is--
THE COURT: Boy, you got me.
MR. KELBERG: C maybe?
DR. LAKSHMANAN: C. Probably C. Okay. C. These two I can't really understand as well as these fragments here. So I'll comment on these first.
THE COURT: Doctor, the first two that you just picked up and put down, said that you can't tell what they are, what are the numbers on them? What are the letters on the back?
DR. LAKSHMANAN: This is C and B. One of them, there's a fragment of what is seen on H, but these two look like two nondistinct brownish material which I'm having difficulty understanding what it is. But these close-up photographs of I, C and H, I can try and comment on.
MR. SHAPIRO: All right. Would you say that these are a series of photographs that would show the process that a forensic pathologist would undertake to determine stomach contents?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: First, you would see it in a container, then you would empty the container out, then you would spread the material out?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And upon spreading the material out, you would try to separate from there any undigested or partially digested material?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: Then you would take close-ups of those materials and try to compare them to other samples you've seen in the past?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And now, by doing that process, would you say that you would be able to see if--did you do that?
DR. LAKSHMANAN: I didn't do that. I just--as I told you, my only visualization of the stomach contents was on June 22nd, and I already described what we saw then. I didn't do this detail study which has been done here.
MR. SHAPIRO: Is that a proper way to do it?
DR. LAKSHMANAN: That is correct.
MR. SHAPIRO: And in doing it the proper way, do you see any evidence of raisins?
DR. LAKSHMANAN: The three photographs that I can clearly identify--because, you know, the other photographs have a distinct type of--it's not a close-up. So it's difficult to really define what it is. But these three close-ups show what is being photographed very clearly and I can comment on these if you want.
MR. SHAPIRO: Do you see any evidence of raisins? Yes or no?
DR. LAKSHMANAN: Not in the photographs I see here, the ones which I said I could--
MR. SHAPIRO: That's fine. Do you see any evidence of tomato skin?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Do you see any evidence of green pepper?
DR. LAKSHMANAN: I don't know whether I can call it green pepper from a photograph, but there's a fragment which could represent green pepper fragment, but I can't tell whether it's a green pepper or not.
MR. SHAPIRO: Do you see any evidence of onion fragment?
DR. LAKSHMANAN: Not from the distant photograph, I'm not able to tell whether it's there or not.
MR. SHAPIRO: Are you familiar with a vegetable named kale?
DR. LAKSHMANAN: No.
MR. SHAPIRO: Do you see any evidence of spinach?
DR. LAKSHMANAN: There is a leafy fragment here which could be spinach, and gross examination did show there was spinach.
MR. SHAPIRO: By those photographs, are you testifying to a reasonable degree of medical certainty that that vegetable you see is spinach?
DR. LAKSHMANAN: It could be spinach. And from my gross examination, it would favor being spinach, but from--it's difficult to say more than that at this point.
MR. SHAPIRO: Are you medically certain it's spinach?
DR. LAKSHMANAN: It looks like spinach I said.
MR. SHAPIRO: Well, don't you have a term that you use within a reasonable degree of medical certainty?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And that's what an expert would say, right?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: A lay person would say it looks like?
DR. LAKSHMANAN: Well, when you see a photograph and of a vegetable fragment and especially it's only a portion of a leafy fragment, there could be other leafy vegetables which can look the same appearance. So it won't be able to--you won't be able to pinpoint exactly just for a cut fragment here. So I said it looks like.
MR. SHAPIRO: Can you tell us within a reasonable degree of medical certainty? Yes or no?
DR. LAKSHMANAN: As I told you, from the initial examination of the stomach contents, it looked like spinach and this photograph would be consistent with that diagnosis.
MR. SHAPIRO: Well, would you say then that if these are in fact the contents of Ronald Goldman that--the contents of the stomach, that many of the areas of food that was present were simply missed by you and Dr. Golden?
DR. LAKSHMANAN: Could you repeat it again, please, your question?
MR. SHAPIRO: If in fact these are photographs of the stomach contents of Ronald Goldman--which you still have; is that correct?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Would you say that by offering your opinion that there was only spinach, that you made a mistake?
DR. LAKSHMANAN: From the contents, yes. What was identified grossly, that's what--so it's not a mistake in the sense that from the initial impression because I know a detailed study was done as it was done in this particular instance as you showed in the photographs. So that way, it's a mistake, yes.
MR. SHAPIRO: You previously testified that you asked Dr. Golden to make an estimate as to the time of death?
DR. LAKSHMANAN: Yes, I did.
MR. SHAPIRO: And that's the most frequently asked question by homicide investigators in a case where there are no eyewitnesses, isn't it?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And Dr. Golden responded that he advised you based on--
MR. KELBERG: Objection, your Honor, as calling for hearsay, lack of foundation.
THE COURT: What's the nature of this? What's the source of this statement?
MR. SHAPIRO: Testimony of Dr. Golden under oath, page 12, lines 26 through 28 of the preliminary hearing.
THE COURT: Overruled.
MR. SHAPIRO: And Dr. Golden told you based on the gastric contents that death, quote, was somewhere three to four hours after her last meal?
MR. KELBERG: Excuse me, your Honor. That misstates the testimony with respect to telling Dr. Lakshmanan because the answer doesn't respond to the question that was asked.
THE COURT: Rephrase the question.
MR. SHAPIRO: Did Dr. Golden testify in your review of the preliminary hearing on page 12, line 26 through 28--I'll give it to you. Do you need it?
DR. LAKSHMANAN: Yes, please. As I told you yesterday, it's good to refresh one's memory. Page 28, sir?
MR. SHAPIRO: Page 12, line 26 through 28. Did Dr. Golden testify that based on the gastric contents--
THE COURT: Hold on. Let him get the page.
(Brief pause.)
DR. LAKSHMANAN: Yes. I've got the page and the line. Go ahead.
THE COURT: 26.
DR. LAKSHMANAN: Yes, sir. I got--
MR. SHAPIRO: Did he testify as follows? Quote, based on the gastric contents of death, quote, was somewhere three to four hours after her last meal, end quote. Was that his testimony?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: And you gave testimony that her last meal on direct examination was between 8:00 and 8:15; is that correct?
DR. LAKSHMANAN: Well, that is my understanding based on the opening and closing of the bill which was presented to me.
MR. SHAPIRO: Based on that, Dr. Golden would place the time of death of Nicole Simpson between 11:00 o'clock and 12:30?
MR. KELBERG: Excuse me, your Honor.
MR. SHAPIRO: Or 11:00--
MR. KELBERG: I'm going to object as taking out of context. Counsel can look at page 16, a specific question asked by Mr. Shapiro as to an opinion as to the time of her death.
THE COURT: Sustained.
MR. SHAPIRO: Well, your Honor, I can't ask this question based on--he went through for two days--
THE COURT: I understand. I understand. Both--both of you. Sustain the objection. Rephrase the question.
MR. SHAPIRO: Thank you very much, your Honor.
MR. SHAPIRO: Assuming, based on Dr. Golden's expertise that she died three to four hours after her last meal and her last meal was between 8:00 and 8:30, what would the time of death of Nicole Simpson be?
DR. LAKSHMANAN: Based on his testimony? Based on his testimony, it would reflect 11:00 to 12:30 based on his testimony and his opinion.
MR. SHAPIRO: Didn't Dr. Golden further testify on page 13, line 16, that on the basis of rigor mortis, the time of death was between 9 and 12 hours prior to 10:50 A.M. when it was measured?
MR. KELBERG: I'm sorry. Can I have the question reread?
THE COURT: 13?
MR. KELBERG: That misstates the testimony.
THE COURT: Why don't you read it.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. SHAPIRO: I'm going to refer you to line--to page 13, line 16. All right. You with me?
DR. LAKSHMANAN: Yes, sir. I'm following you.
MR. SHAPIRO: "And then I considered the rigor mortis determination, which at the time the investigator--the time the investigator performed her determination, the body was in full rigor. If now I may pick up and look at page 1 of the Coroner's protocol, the rigor was fixed and was fully fixed. So that also placed the time of death somewhere beyond 9 to 12 hours." And assume that the investigator concluded that rigor was fully fixed at 10:50. What would the estimate be as to the time of death of Nicole Simpson?
DR. LAKSHMANAN: Based on his testimony and based on the information he's used, the calculation for that would be that death occurred--I mean that death occurred before 10:50 P.M. it says beyond 9 to 12 hours. If you take 9 hours, it occurred before 1:50 A.M. if you take 12 hours, it occurred before 12:50--I mean 10:50 P.M. of June 13th.
MR. SHAPIRO: Doctor, doesn't that conclude that if it's between 9 and 12 hours prior to 10:50, it would be between 10:50 P.M. and 1:50 A.M.?
DR. LAKSHMANAN: No, no, no.
MR. KELBERG: Excuse me. Objection. It misstates the testimony. It leaves out the word "Beyond."
THE COURT: Overruled.
DR. LAKSHMANAN: It doesn't state that. It says beyond 9 to 12 hours. That means the death occurred before. If you use the 9-hour number, it means death occurred before 1:50 A.M. if you use the 12-hour number, it means death occurred before 10:50 P.M., which means death occurred after--before that, because as I told you yesterday, in rigor mortis, once it develops, you can't tell how long it's there until it passes away. So if that's what this testimony is, so he says in this testimony death occurred before 1:50 A.M. and if you use the 12-hours statement for fully developed, it occurred before 10:50 P.M.
MR. SHAPIRO: What's 9 hours prior to 10:50 A.M.?
DR. LAKSHMANAN: 1:50 A.M.
MR. SHAPIRO: What's 12 hours prior to 9:50 A.M.--prior to 10:50 A.M.?
DR. LAKSHMANAN: 10:50 P.M. of the previous day.
MR. SHAPIRO: Thank you. Nothing further.
THE COURT: Mr. Kelberg.
REDIRECT EXAMINATION BY MR. KELBERG
MR. KELBERG: Doctor, let me read you the testimony if I could and then do some very quick calculations. Oh, first of all--no. Let me invite counsel to page 16, lines 3 through 7 and ask you if you reviewed this testimony as well, doctor. Question by Mr. Shapiro at the preliminary hearing: "Do you have an opinion as to the time of death of Nicole Simpson? "Answer by Dr. Golden: I can give you a range. "Question: And what is that range? "Answer: Somewhere between 9:00 o'clock and midnight." Recall that, doctor?
DR. LAKSHMANAN: Could you give me the page number again?
MR. KELBERG: 16.
DR. LAKSHMANAN: Yes.
MR. KELBERG: Lines 3 through 7, questioning by Mr. Shapiro. Recall that?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Is that consistent with your own opinion?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Now, with respect to the question that Mr. Shapiro asked just when he stopped his examination, the answer given by Dr. Golden at the preliminary hearing stated, starting at line 20: "The rigor mortis was fixed and was fully fixed, so that also placed the time of death somewhere beyond 9 to 12 hours." Doctor, assuming that the rigor mortis reading was obtained at 10:50 in the morning and the assessment is that that shows death was beyond 12 hours before that time, then what is the latest time that the death could have occurred according to that opinion by Dr. Golden?
DR. LAKSHMANAN: That means the death occurred beyond--beyond 12 hours. That is death occurred before 10:50 P.M.
MR. KELBERG: And according to that, then the latest time for Nicole Brown Simpson's death would have been 10:50 P.M., correct?
DR. LAKSHMANAN: No.
MR. KELBERG: The latest time?
DR. LAKSHMANAN: That's correct.
MR. KELBERG: And she could have died, according to that opinion of Dr. Golden, earlier than 10:50 including 10:15, correct?
DR. LAKSHMANAN: That's correct. That's what I testified to.
MR. KELBERG: And, doctor, going back to the gastric contents question asked by Mr. Shapiro where Dr. Golden said: "My estimate was based on the state of the gastric contents and the character of the gastric contents. It was somewhere three to four hours after her last meal," if Dr. Golden misspoke and left out the word "Within" so that his answer that he intended was actually, "It was somewhere within three to four hours after her last meal," would that be consistent in your opinion with the usefulness of the stomach contents as an estimator of time of death?
MR. SHAPIRO: Objection. Improper hypothetical. Assumes facts not in evidence.
THE COURT: Sustained.
MR. KELBERG: Assuming hypothetically, doctor--well, let me withdraw the question. Doctor, no. 1, in your opinion, would it make medical sense based upon the observation of the stomach contents to place the time of death at three to four hours after her last meal?
DR. LAKSHMANAN: As I testified yesterday, you need to see grossly identifiable fragments, and that would suggest the meal was taken two hours prior to death. But as I said, because of the various variabilities, it's difficult to give an exact estimate.
MR. KELBERG: And one of the studies you relied upon, the Bolandi study, which used pasta like rigatoni as the meal that was being followed in the stomach and through into the intestines indicated that in normal average healthy people, the passage time was four hours for the entire contents to pass the stomach plus or minus 30 minutes, right?
DR. LAKSHMANAN: Yes.
MR. KELBERG: And in the observation of Dr. Golden, there is still 500 cc's, three ladles of six ounces each of identifiable rigatoni in Nicole Brown Simpson's stomach; is that correct?
DR. LAKSHMANAN: Yes.
MR. KELBERG: And if that is the case, doctor, that it takes four hours for the stomach to empty and on the other hand, you find 500 cc's of rigatoni-based contents in the stomach, does it make medical sense to say that the person died three to four hours after having eaten that meal?
DR. LAKSHMANAN: No, because they could have died within three to four hours because, as you know, from that--if you're using that study as in your hypothetical, stomach would have emptied in four hours and you still have a lot of residual material in the stomach. So it would be within four hours rather than three to four hours.
MR. KELBERG: And, doctor, if Dr. Golden's opinion regarding the actual time of death, as he told Mr. Shapiro in response to his question, was somewhere between 9:00 o'clock and midnight, would an opinion saying that death was three to four hours after the meal and the meal was ended somewhere between 8:00 and 8:30 be consistent with what Dr. Golden has said is his opinion, 9:00 o'clock to midnight?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Now, doctor, let me ask you briefly and let's see if maybe we can get you out of here by noon. Just a few questions. First of all, if Mr. Shapiro feels that there's any value to Dr. Golden's testimony beyond what you've already said, is Dr. Golden available at your office at any time to be called by Mr. Shapiro to this courtroom and examined as a witness by Mr. Shapiro?
MR. SHAPIRO: Objection. Calls for a legal conclusion. Improper question.
THE COURT: Overruled.
MR. KELBERG: You may answer the question, doctor.
DR. LAKSHMANAN: To my knowledge, he's available.
MR. KELBERG: And if I asked you to make sure he's available, will you do your utmost so that if Mr. Shapiro wants him here, all Mr. Shapiro has to do is let me know, I'll let you know and Dr. Golden will be here?
DR. LAKSHMANAN: I'll do my best to make that happen.
MR. KELBERG: Now, couple other points, doctor. You were talking about why you believe the killer would have been at least the size of, if not bigger, than Mr. Goldman. Do you recall that series of questions that Mr. Shapiro was asking?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Doctor, did you have provided to you some information concerning shoe sizes and human stature; that is heights and weights of people?
MR. SHAPIRO: Objection. Beyond the scope.
THE COURT: Overruled.
MR. SHAPIRO: Calls for hearsay.
THE COURT: Overruled. You can answer the question.
DR. LAKSHMANAN: I briefly reviewed that material.
MR. KELBERG: Doctor, I want you to assume that there were bloody shoeprints found along the walkway leading from the bodies to the back of the Bundy location and that I want you to assume hypothetically that there will be testimony that those bloody shoeprints are consistent with a person who has a size 12 shoe, and I want you to further assume hypothetically that people who wear size 12 shoes tend to be six feet to six feet four based upon studies conducted by the Royal Canadian Mounted Police and the FBI. Doctor, would that type of evidence, assuming it is true, serve to confirm your opinion that a single killer of a height greater than Mr. Goldman in a swift and violent assault on both of these human beings is the perpetrator?
MR. SHAPIRO: Objection. May we approach?
THE COURT: No. Overruled.
DR. LAKSHMANAN: I already said it could--it could be such a kind of perpetrator.
MR. KELBERG: And Mr. Shapiro asked you would you stake your reputation to a reasonable medical certainty. Remember that question?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Doctor, would you stake your reputation that based upon the forensic pathology evidence you reviewed, that all of that evidence is in fact consistent with one killer, six foot two, 210 pounds, athletically built with the element of surprise with a 6-inch long single-edged knife killing Nicole Brown Simpson and Ronald Goldman? Would you risk your reputation, stake your reputation on that?
DR. LAKSHMANAN: I said that one person could have done all the injuries, yes, I did say that.
MR. KELBERG: And will you stake your reputation that all of the evidence is consistent with that?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Now, doctor, this driver's license, 85-A, have you known people to fudge a little bit on providing information to the Department of Motor Vehicles with respect to heights, weights, ages and so forth?
MR. SHAPIRO: Objection. Calls for speculation.
THE COURT: Sustained. I think it's beyond the scope of this particular witness.
MR. KELBERG: All right. Doctor, have you ever encountered people who feel it's important to be six feet tall even if they might be 5/11 or 5/10?
MR. SHAPIRO: Objection. Irrelevant to this witness.
THE COURT: Sustained.
MR. KELBERG: Doctor, Mr. Shapiro asked you something about glancing blows. Recall that testimony this morning?
DR. LAKSHMANAN: Yes. Yes.
MR. KELBERG: And he talked about the possibility of one knuckle striking the chin. Recall that?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Now, by definition, would you opine that a glancing blow results in the transfer of less force by the very nature of being a glancing blow?
DR. LAKSHMANAN: As I already said, that in a glancing blow, the energy is not delivered completely to the target. Only a portion of the energy is delivered.
MR. KELBERG: And if that is in fact the situation, doctor, does that reduce the likelihood that you would expect any injury to be seen on the person receiving this glancing blow?
DR. LAKSHMANAN: That would be a logical conclusion.
MR. KELBERG: And on the person delivering the glancing blow?
DR. LAKSHMANAN: That would also be a logical conclusion.
MR. KELBERG: And, doctor, there was questioning by Mr. Shapiro about would you expect somebody to kick and do all these various things to try and survive. Do you recall that series of questions?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Doctor, if somebody has a human being from behind and has a knife at their throat, would you expect the first place that that victim is going to try and deal with to be the knife which is the immediate threat to the person's life?
DR. LAKSHMANAN: That would be expected reaction.
MR. KELBERG: And if the knife is at the throat, would you expect the person to be trying to kick the perpetrator where the knife is?
DR. LAKSHMANAN: That I would not be able to state whether it could happen or cannot happen because it depends on the fear limit in the victim because--as I told you, the victim could be in fear and frozen and there could be no kicking and nothing. But--so the reaction for that kind of hypothetical is difficult to speculate and I would not wish to make any further statements on that.
MR. KELBERG: Doctor, when you talk about freezing, in fact, is it a recognized phenomena even in wartime that men and women who are being shot at or threatened with immediate death, some of them literally freeze and are unable to move?
MR. SHAPIRO: Objection. Speculation. Beyond his expertise unless he participated in the war and saw it happen.
THE COURT: Why don't you rephrase the question.
MR. KELBERG: Doctor, from your knowledge as a physician, are you aware of such information that indicates that in circumstances where people's lives are in fact immediately threatened, some people simply freeze, unable to move?
DR. LAKSHMANAN: I've heard of such information, yes.
MR. KELBERG: Now, doctor, you testified also, Mr. Goldman has no cuts to the back of his hands, right?
DR. LAKSHMANAN: Yes.
MR. KELBERG: And he has defensive wounds as if trying to ward off with open hands a knife, correct?
DR. LAKSHMANAN: That is my statement, yes.
MR. KELBERG: And all of that, doctor, is inconsistent with the fists of Mr. Goldman being created, that is by the hand closing?
DR. LAKSHMANAN: That was my opinion also. It's unlikely I said.
MR. KELBERG: Just a few more questions if I might, your Honor.
MR. KELBERG: Mr. Shapiro asked you something about the aging of contusions and abrasions. Recall that?
DR. LAKSHMANAN: Yes.
MR. KELBERG: And wouldn't microscopic slides be helpful?
DR. LAKSHMANAN: Yes.
MR. KELBERG: Are we talking about aging in the sense of, is it antemortem, perimorten or postmortem, or are we talking about aging in determining time of death?
DR. LAKSHMANAN: Aging is for the age of the injury. You cannot estimate the time of death from the injury itself.
MR. KELBERG: And, doctor, since Mr. Shapiro asked about contusions versus lividity, remember that photograph B9?
DR. LAKSHMANAN: Yes.
MR. KELBERG: The area where you said there was a nonspecific blunt force trauma, if that had been contus--an area of lividity, can you explain how it would exist in that area given the position of the body which had the dependent portion of the body, that is the body that is below being the left side, not the right side?
DR. LAKSHMANAN: It was on the right side and Nicole's lividity was on the left side.
MR. KELBERG: And can you then explain how being on the right side, that bruised area, how that could be lividity? Scientifically, is that possible?
DR. LAKSHMANAN: That's why I said it's not lividity and there was no other discoloration on the right side of the body.
MR. KELBERG: Do you have to make any kind of incision based on the evidence you had to understand that situation?
DR. LAKSHMANAN: No. But during the autopsy, if a doctor has a doubt, that is always an available option, to make an incision to confirm your initial impression.
MR. KELBERG: Now, doctor, just a couple more questions. Who sets the cost for these slides?
DR. LAKSHMANAN: Our department accountant and consultant in consultation with the auditor, they figure out what other process is involved, salaries involved, time limit involved, and they come up with some mathematical calculations, and the county has its way of getting the numbers which involves in the cost recovery.
MR. KELBERG: Are you involved in that calculation process at all?
DR. LAKSHMANAN: No, sir.
MR. KELBERG: Lastly, doctor, were you graded by Mr. Tuno on his suggestion that you learn to talk louder in court?
DR. LAKSHMANAN: He didn't tell me to talk louder, but he's gave that as a general advice to everybody, to speak up and express yourself. That is general advice given during the talk.
MR. KELBERG: And if you see him again, I suggest he might ask you to speak louder if you're another witness in another case.
MR. KELBERG: With that, your Honor, I have nothing further.
THE COURT: Mr. Shapiro.
MR. SHAPIRO: May I just have a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: May we approach, your Honor?
(A conference was held at the bench, not reported.)
THE COURT: All right. Ladies and gentlemen, we are going to take our noon recess at this time. Please remember all of my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. We will be in recess until 1:30. So a little longer lunch hour today. And, doctor, 1:30.
DR. LAKSHMANAN: Yes, your Honor.
THE COURT: Thank you.
(At 12:05 P.M., an adjournment was taken until 1:30 of the same day.)
LOS ANGELES, CALIFORNIA; THURSDAY, JUNE 15, 1995 1:32 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. The Defendant is present again with his counsel. The People are represented. The jury is not present. Good afternoon, Mr. Shapiro. You had something that you wanted to comment on?
MR. SHAPIRO: Your Honor, yes. We would like to address the Court regarding evidence that we would like to present before the jury regarding findings of Judge Pounders in two homicide cases that were autopsied by Dr. Golden and where the cause of death in both cases had been changed after the Defense brought in their expert witnesses.
THE COURT: The cause of death was changed?
MR. SHAPIRO: Not the cause, I'm sorry, the type--the circumstances surrounding the death. One, there was an exit wound versus an entrance wound that was later changed, and one was also the distance at which a weapon was filed--was fired. Both of those cases were capital murder cases against one Defendant as a result of the change in the findings by Dr. Golden, as well as the lack of a witness. Those cases were dismissed and Judge Pounders made a finding of factual innocence. We would like to bring that to the jury's attention.
THE COURT: In what manner?
MR. SHAPIRO: By simply asking this witness are you aware--by simply asking Dr. Lakshmanan are you aware that as a result of the mistakes that were made by Dr. Golden in these two autopsies that these cases resulted in somebody who was being prosecuted for capital murder having the charges dismissed on the motion of the District Attorney?
THE COURT: What is the basis of this information? I mean, do you have the certified court documents available?
MR. SHAPIRO: Yes. I actually have the District Attorney's file, the internal memorandums from the District Attorney who handled the case, to Mr. Sundstedt who was the person who made the approval.
THE COURT: No, but my question is, I mean, the District Attorney's file is oftentimes an interesting source of information, but it is not the official court record.
MR. SHAPIRO: The official court record has been destroyed based on a finding of factual innocence.
THE COURT: No, but that record would still exist.
MR. SHAPIRO: I was told by the attorney who filed the petition that the record does--we tried to find it. The D.A.'s tried to find it yesterday; they couldn't. The only record was their file and the only record that the Coroner has are there are two autopsy reports.
THE COURT: Mr. Kelberg.
MR. KELBERG: Your Honor, so that the record is complete, Mr. Shapiro had the opportunity, both to peruse our file and speak at length with Mr. Grace who was the Prosecutor on the case. Obviously this questioning, in my judgment, A, calls for hearsay, lack of foundation as to what Judge Pounders did or did not do. B, is completely irrelevant. The issue is the mistakes of Dr. Golden which are relevant only as to his competency, mistakes which are significant from a medical perspective. Dr. Lakshmanan is no better qualified to talk about the legal significance than would be the ordinary lay person. Dr. Lakshmanan is a forensic pathologist; he is not a lawyer. The third item is, just so the record is correct, there has been no contact between Mr. Grace and Dr. Lakshmanan, or really any other person in the Coroner's office, regarding any mistakes by Dr. Golden in these two cases, the Gaye Phillips cases, and that what Mr. Shapiro said on the record he was led to believe existed simply is not the case. There is no such communication. Dr. Lakshmanan knew nothing more about this until this matter was raised as part of the prime time live materials and the Framalino letter from a reporter with the Los Angeles Times. In fact, what the District Attorney's office file reflects, and what was confirmed by Mr. Grace, is that our office moved to dismiss the charges based in part on Dr. Golden's change of opinion and the memorandum does not talk about mistakes, just change of opinion, and that that change of opinion contradicted the testimony of an eyewitness who was the primary witness on which the Prosecution was based. And compounding the change in circumstances that that situation created, that eyewitness was apparently not able to be located, so as a result of that combination of circumstances, a recommendation was made to have the charges dismissed, and that recommendation was approved by the appropriate chain of command in our office, and what happened from that point on, obviously it was dismissed, and Mr. Grace is in a position to say it was dismissed, but there is certainly no recordation that I reviewed from a minute order or a transcript to reflect the circumstances when I assume Mr. Grace moved the Court formally for a motion to dismiss.
THE COURT: Are you aware of any authority to destroy a court file after a finding of factual innocence?
MR. KELBERG: Your Honor, I am not aware that the court would destroy any file on such a finding. I believe the penal code dealing with sealing of records on findings of factual innocence is probably what Mr. Shapiro is talking about in order to protect the person who had been accused from having to disclose or have available to outside review these materials, but I am not aware of any statute which would either authorize or approve the court destroying the court's file on the basis of a determination of factual innocence.
THE COURT: So what is the legal basis of your objection?
MR. KELBERG: Legal bases of my objection are multi-fold. No. 1, it calls for hearsay, lack of foundation. If Judge Pounders said something and did something, it has got to be from Judge Pounders' mouth or from some admissible document that qualifies as an official record. As the Court is well aware, judicial notice may not be taken of everything that is in a court file, and that in fact many of the matters that are within a court file are subject to the same hearsay exceptions, like official records, but you've got to be able to lay a foundation. And obviously there is no such record here, even if the Court was being asked to take judicial notice. So hearsay, no. 1. No. 2, it is irrelevant. It is irrelevant to the issue of whether Dr. Golden is a competent forensic pathologist or not. What is relevant, as the Court found, is did he make mistakes that reflect upon his skills as a medical examiner? And secondly, if he did make mistakes, are those mistakes of medical significance, because if they are significant medical mistakes, then it clearly goes more to demonstrate a lack of competency than if they are insignificant mistakes which have really no reflection upon his skill. Dr. Lakshmanan is eminently qualified to evaluate the medical significance of any such mistake, but he is not a lawyer, he is not a Judge, he is not a qualified expert witness on the subject of the legal significance. And he would be unable to know the legal significance because it was Mr. Grace and the people in our office who at least initially made a determination to move to dismiss. The record, at least in our file, is clear that the bases for that motion is not either exclusively on the grounds of Dr. Golden's mistakes or necessarily on the grounds that they are mistakes; it is on the ground that the evidence produced by the amended opinion reflects inconsistency between that opinion and the eyewitness account which makes the case problematic, followed by the unavailability of the witness, even if one wanted to believe the credibility of the witness over Dr. Golden's amended opinion. As a result of which all of this is speculative, 352, irrelevant, outside the scope of expertise of Dr. Lakshmanan, calling for hearsay, lack of foundation.
THE COURT: Mr. Shapiro, any response?
MR. SHAPIRO: Thank you, your Honor.
THE COURT: I'm concerned about the foundation for this matter.
MR. SHAPIRO: Foundation we can get in by doing what I would prefer not to do, and hopefully do by stipulation, since there are no facts in dispute, by calling Mr. Grace who in fact was the Prosecutor in the case. The real issue is so that this jury is not confused and misled. Dr. Lakshmanan continued, under questions from the Prosecutor, to say that none of these things affect what he refers to as big ticket items. Nothing affects the cause of death or the manner of death. What we want to demonstrate--and therefore it doesn't affect the competency of Dr. Golden. What we want to demonstrate to the jury is even though the cause of death was not changed in two cases where Dr. Golden testified, they both died of gunshot wounds, and even though the death certificate was not changed because that was the same, the findings that he made, that is Dr. Golden, as a forensic pathologist, changed the course of events for somebody who was prosecuted and caused in part somebody who had been in jail for three years to be released and a finding of factual innocence. If that is not a major item and a major piece of evidence for a forensic pathologist to have, there can be no bigger area for a forensic pathologist to examine, and that is what we want the jury to know. The Prosecution has tried to narrow to a great degree certain issues and take away everything else that a forensic pathologist has to do and has to look for, and that if those opinions are incorrect, then the jury now is left with the idea, well, these, according to the Prosecutor and Dr. Lakshmanan, are not important. Well, an exit wound and an entrance wound not only is important in making a correct analysis from the point of view of a medical examiner, it is essential when it comes to guilt or innocence, and he is making several similar opinions in this case and he is relying in part on his opinions based on the work of Dr. Golden. And I think it is important for the jury to know how significant these errors really were.
THE COURT: All right. Mr. Shapiro, I think I have allowed wide latitude to the Defense to cross-examine Dr. Lakshmanan regarding Dr. Golden's competence. I allowed going into the--these other cases where significant mistakes were made. I think, though, to ask these questions of Dr. Lakshmanan would be, one, asking him to come to a legal conclusion which I don't believe he is competent to make. I think that we have a lack of foundation here for the legal conclusions. We don't have a court file. There is nothing I can take judicial notice of. And I think under 352 we also have a problem that there are too many other factors that Mr. Kelberg mentions that went into the decision to dismiss the case, beyond just the issue of Dr. Golden having made a mistake as to the entry, exit, and proximity. That issue has already been clearly presented without ambiguity to the jury that he has made those mistakes and what the legal consequences are. The explanation for that will take more time than it is worth at this point. We have established the point that Dr. Golden made a mistake, so I will sustain the objection.
MR. SHAPIRO: Your Honor, just for the record, may I make an offer of proof that we could meet the foundation requirement?
THE COURT: Certainly.
MR. SHAPIRO: And we could meet that very easily by calling the Prosecutor in this case who will substantiate what I have said, by calling Mr. Lindner, who was the Defense attorney in this case, who will substantiate it. I have not talked to Judge Pounders, but because this case was so unusual it is the opinion of both lawyers that he would recall this independently, so I think we could get over that foundational requirement and would present that to your Honor. Second, just for the record, we would like to mark as exhibits to be part of the court file the letter from Charles Lindner to Robert B. Grace explaining the errors that were made, the summary and findings by Deputy District Attorney Robert grace, and two District Attorney forms which are the disposition reports and the recommendation for dismissal. We would like to incorporate these as a joint exhibit along with the protocols of the two decedents and autopsy reports, for the record only.
THE COURT: Certainly. And we will collectively--what is the next Defense exhibit number?
MR. SHAPIRO: 1195.
THE COURT: 1195 with a clear designation not to go jury unless otherwise ordered.
(Deft's 1195 for id = letters/autopsy protocols)
MR. KELBERG: May I just inquire from Mr. Shapiro?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SHAPIRO: Will you stipulate that these are copies from your file?
MR. KELBERG: Certainly.
THE COURT: All right. Thank you, counsel. Anything else.
MR. KELBERG: Not by me.
THE COURT: We are prepared to proceed with the next witnesses after we have concluded with Dr. Lakshmanan?
MR. KELBERG: Don't look at me, your Honor.
THE COURT: Mr. Darden, good afternoon.
MR. DARDEN: Your Honor, we are going to require a 15-minute break prior to the next list of witnesses.
THE COURT: We have a lot of exhibits to move around and get out of the way. All right. I agree. All right. Let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Can you hold on with the jury for a second. Mr. Cochran, department 110 needs your presence.
MR. COCHRAN: Your Honor, I think this will be real quick. Can they give me five--
THE COURT: Counsel, you have the Court's leave to go.
MR. COCHRAN: All right.
THE COURT: Would you tell--
(Discussion held off the record between all Defense counsel.)
MR. COCHRAN: We are going to take a recess in about five minutes.
MR. SHAPIRO: I'm going to be very brief.
THE COURT: I can't count on Mr. Kelberg.
MR. KELBERG: Your Honor, twelve minutes on redirect.
THE COURT: I'm trying to accommodate counsel. Let's proceed. On the representation it is less than five minutes?
MR. SHAPIRO: Five minutes.
THE COURT: All right. On the representation it is less than five minutes. All right. Let's have the jurors.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Dr. Lakshmanan, would you resume the witness stand.
Lakshmanan Sathyavagiswaran, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:
THE COURT: And Mr. Shapiro, you may continue with your cross-examination.
MR. SHAPIRO: Thank you. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
RECROSS-EXAMINATION BY MR. SHAPIRO
MR. SHAPIRO: Good afternoon again, Dr. Lakshmanan.
DR. LAKSHMANAN: Good afternoon.
MR. SHAPIRO: Thank you, your Honor. Dr. Lakshmanan, I would like to show you something on the elmo, please. Will you put that up, Mr. Harris. I would like to mark this Defense next.
(Deft's 1196 for id = Golden rule)
MR. SHAPIRO: What I'm going to show you is something referred to as the Golden rule of homicide investigation. And I would like to ask you the following question regarding the Golden rule which states: "Never touch, change or alter anything until identified, measured and photographed. Remember that when a body or an article has been moved, it can never be restored to its original position." Do you agree with that rule, sir?
DR. LAKSHMANAN: Yes.
MR. SHAPIRO: Thank you. Nothing further.
MR. KELBERG: I am done, your Honor.
THE COURT: All right. Dr. Lakshmanan, you are now excused as a witness, sir, subject to recall. Thank you very much, doctor.
DR. LAKSHMANAN: Thank you, your Honor.
THE COURT: All right. Ladies and gentlemen, this concludes the presentation of the medical evidence by the Prosecution at this time. We are going to shift focus to another area. I'm going to have the attorneys clear out some of the exhibits so we have more room. And so we are going to take a recess for about fifteen minutes so we can bring those exhibits together. I'm sure you understand. All right. So we will see you back here in about oh, fifteen, twenty minutes. All right. We will stand in recess. Mr. Kelberg, thank you, sir.
MR. KELBERG: It was a pleasure to be here.
(Recess.)
(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 again present before the Court with his counsel. The People are represented. And I see we have Mr. Darden, Mr. Gordon and Mr. Wooden with us today.
MR. DARDEN: Yes, your Honor.
THE COURT: All right. Good afternoon, gentlemen. All right. Mr. Darden, are you going to present the next witness?
MR. DARDEN: Yes, your Honor.
THE COURT: Are you prepared to proceed?
MR. DARDEN: Yes.
THE COURT: All right. Deputy Magnera, may we have the jurors, 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. All right. Let the record reflect we have been rejoined by all the members of our jury panel. Mr. Darden, you may call the People's next witness.
MR. DARDEN: Thank you, your Honor. Good afternoon. Good afternoon.
THE JURY: Good afternoon.
MR. DARDEN: The People call Brenda Vemich to the stand, your Honor.
THE COURT: All right.
Brenda Vemich, called as a witness by the People, was sworn and testified as follows:
THE COURT: Miss Vemich, would you come forward, please. Stand right next to the court reporter, please. Raise your right hand and face the clerk.
MR. SHAPIRO: 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. VEMICH: I do.
MR. SHAPIRO: Please have a seat on the witness stand and state and spell your first and last names for the record.
MS. VEMICH: Brenda Vemich.
MR. SHAPIRO: May we have the spelling.
MS. VEMICH: V-E-M-I-C-H.
THE COURT: Mr. Darden.
MR. DARDEN: Thank you, your Honor.
DIRECT EXAMINATION BY MR. DARDEN
MR. DARDEN: Good afternoon, Miss Vemich. Miss Vemich, who are you employed by?
MS. VEMICH: Bloomingdales.
MR. DARDEN: What is your position with Bloomingdales?
MS. VEMICH: I'm a buyer for men's dress shirts.
MR. DARDEN: Men's dress shirts?
MS. VEMICH: Yes.
MR. DARDEN: And were you employed by Bloomingdales on December 18, 1990?
MS. VEMICH: Yes.
MR. DARDEN: What was your position then?
MS. VEMICH: I was the men's gloves buyer.
MR. DARDEN: You were the men's glove buyer. During December of 1990 did Bloomingdales have a relationship with Aris Isotoner?
MS. VEMICH: Yes.
MR. DARDEN: Did Bloomingdales sell Aris Isotoner gloves?
MS. VEMICH: Yes.
MR. DARDEN: Can you tell us whether or not there was a line of gloves sold exclusively by Bloomingdales, that is, gloves that were manufactured by Aris Isotoner?
MS. VEMICH: Yes.
MR. DARDEN: And can you tell us the name or the style of those gloves?
MS. VEMICH: Well, we bought many gloves from Aris, but there was one particular important glove and it was called an Aris leather--
MR. COCHRAN: I move to strike this as nonresponsive.
THE COURT: Sustained. Rephrase the question, please.
MR. DARDEN: Did Bloomingdales sell more than one exclusive kind of Aris Isotoner glove?
MS. VEMICH: Yes.
MR. DARDEN: Are you familiar with the glove called Aris Isotoner thin?
MS. VEMICH: I don't understand the question.
MR. DARDEN: Are you familiar with the glove that goes by the style number of 70263?
MS. VEMICH: Yes. That is an Aris leather light glove that was an exclusive glove for Bloomingdales.
MR. DARDEN: Okay. And this Aris leather glove--Aris leather light glove was manufactured by Aris Isotoner?
MS. VEMICH: Yes.
MR. DARDEN: And you were in charge of purchasing gloves for the men's section?
MS. VEMICH: Yes.
MR. DARDEN: Were you selling that particular type of glove on December 18, 1990?
MS. VEMICH: Yes.
MR. DARDEN: Okay. And in which department in the store could those gloves be purchased?
MS. VEMICH: In the seasonal glove department, seasonal accessories. Seasonal accessories.
MR. DARDEN: And if you know, what was the retail price of those gloves?
MS. VEMICH: Those particular gloves were $55.00.
MR. DARDEN: And what was the selling price on December 18, 1990, if you know?
MS. VEMICH: They were $55.00, but during December 18th they were marked down at thirty percent off.
MR. DARDEN: Could you describe style no. 70263, the Aris Isotoner leather light glove?
MS. VEMICH: Yes. This particular glove has many characteristics that are very distinctive to this type of glove. One of the first characteristics is the leather. The leather is extremely lightweight, almost paper thin, and that was one characteristic. The second was the stitching. The stitching of this glove was called a Brossier stitch which is a very refined whip stitch.
THE COURT: How do you spell that Brossier?
MS. VEMICH: I believe it is B-R-O-S-S-I-E-R.
THE COURT: Thank you. Mr. Darden.
MS. VEMICH: So the stitching was very unique as well.
MR. DARDEN: Okay. Okay. Any other unique characteristics?
MS. VEMICH: Yes. The vent palm was on the palm side of the glove. The "V" that is in the glove is in the palm side, so that was another characteristic.
MR. DARDEN: Okay. Now, was there a lining to these gloves?
MS. VEMICH: Yes. They were cashmere lined so all four of these characteristics combined together made this glove a very unique and special glove.
MR. DARDEN: During the recess you were here in court this afternoon; is that correct?
MS. VEMICH: Yes.
MR. DARDEN: And at that time were you asked to view two gloves in particular?
MS. VEMICH: Yes.
MR. DARDEN: By the way, have you ever visited any factories where gloves are manufactured?
MS. VEMICH: Yes, many times throughout my career in accessories.
MR. DARDEN: Have you tried several pairs of gloves on?
MS. VEMICH: Yes, many, many, many pair.
MR. DARDEN: In your professional capacity?
MS. VEMICH: (no audible response.)
MR. DARDEN: And that was in your professional capacity?
MS. VEMICH: Yes.
(Brief pause.)
MR. DARDEN: I would like to show you a pair of gloves that have already been marked. Where can we do this, your Honor?
THE COURT: Where would you like to do it, Mr. Darden? Do you want to do it here on the shelf in front of the witness?
MR. DARDEN: Okay.
THE COURT: Mr. Wooden, do you want to pull off a sheet of paper and fold it up to that size, please.
MR. DARDEN: Miss Vemich, given the description you have provided us of the Aris Isotoner leather light glove, are you able to identify that glove when you see it?
MS. VEMICH: Yes.
MR. DARDEN: Let me show you the glove that has been marked People's 164-A. It is LAPD item no. 9, the Rockingham glove. Showing you People's 164-A, looking at that glove, can you tell us whether or not that glove is an Aris Isotoner leather light glove?
MS. VEMICH: Can you turn it over?
MR. DARDEN: (Mr. Darden complies.)
MS. VEMICH: Yes. This is an Aris leather light glove.
MR. DARDEN: Now, does this glove have the "V" indentation in the palm area that you described earlier?
MS. VEMICH: Yes, the vent palm.
MR. DARDEN: Okay. How about the stitching?
MS. VEMICH: The stitching is the Brossier stitching, the lining is cashier.
MR. DARDEN: And does the leather appear to be particularly light, as you described earlier?
MS. VEMICH: Very thin for a glove, yes.
MR. DARDEN: And this glove is a glove exclusive to Bloomingdales?
MS. VEMICH: Yes.
MR. DARDEN: By the way, when you looked at these gloves during the recess, was Mr. Cochran present?
MS. VEMICH: Yes.
MR. DARDEN: And Mr. Shapiro?
MS. VEMICH: Yes.
MR. DARDEN: Myself and Mr. Wooden?
MS. VEMICH: Yes.
MR. DARDEN: Is this 77?
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: And showing you the glove that has been marked exhibit 77, People's 77.
MS. VEMICH: Yes, this is an Aris leather light glove.
MR. DARDEN: Miss Vemich, if you know, how many pairs of these gloves did Bloomingdales purchase during 1990?
MS. VEMICH: Bloomingdales purchased approximately a thousand dozen which would be about 12,000 pair.
MR. DARDEN: And what is the color of the two gloves you just saw?
MS. VEMICH: The color is brown.
MR. DARDEN: And what is the size?
MS. VEMICH: The size is extra large.
MR. DARDEN: Okay. During 1990 how many pairs of Aris Isotoner leather light gloves brown in color size extra large did Bloomingdales purchase?
MS. VEMICH: Approximately 300.
MR. DARDEN: 300 pair?
MS. VEMICH: Yes.
MR. DARDEN: Now, when you say that these gloves were exclusive to Bloomingdales, what exactly does that mean?
MS. VEMICH: That means that these gloves were designed and developed--developed for only Bloomingdales, and were sold nowhere else.
MR. DARDEN: Okay. Have you ever seen those gloves sold anywhere else in the United States?
MS. VEMICH: No, I have not, not these gloves.
MR. DARDEN: Have you traveled abroad to Europe and to Asia?
MS. VEMICH: Yes.
MR. DARDEN: Have you ever seen these gloves in Europe or Asia?
MS. VEMICH: No, I have not.
MR. DARDEN: Is there a Bloomingdales in Los Angeles?
MS. VEMICH: No, sir.
MR. DARDEN: Where is the Bloomingdales that is the one closest to Los Angeles?
MS. VEMICH: The closest one I believe is in north Michigan area, the Chicago store. That is the closest.
MR. DARDEN: Chicago store is the closest?
MS. VEMICH: Yes.
MR. DARDEN: Now, did you purchase these same gloves for Bloomingdales during 1991?
MS. VEMICH: No, I did not. I inherited this particular buy, the first buy.
MR. DARDEN: Okay. Were pairs several pairs sold to Bloomingdales during 1990?
MS. VEMICH: Yes.
MR. DARDEN: How about 1992?
MS. VEMICH: Yes.
MR. DARDEN: `93?
MS. VEMICH: Yes.
MR. DARDEN: You purchased the same gloves that I have just shown to you, or the same style, during 1993?
MS. VEMICH: The manufacturer started changing some of the--
MR. COCHRAN: Move to strike as nonresponsive, your Honor.
THE COURT: Mr. Darden, ask the question.
MR. DARDEN: At some point did the manufacturer start to change the style of glove that I have shown you here in court today?
MS. VEMICH: Yes.
MR. DARDEN: Okay. What year was that?
MS. VEMICH: 1993.
MR. DARDEN: Okay. Did they change the style number in 1993?
MS. VEMICH: No, they did not. They only changed the stitching.
MR. DARDEN: And so the 1993 model of the Aris Isotoner leather glove, how is it different from the gloves, if at all, that are here in court today?
MS. VEMICH: The stitching, the Brossier stitching was changed. They changed to it what is called a picay stitch.
MR. DARDEN: And the gloves I have shown you here in court today are not gloves having a "K" stitch?
MS. VEMICH: No, that is a Brossier stitch.
MR. DARDEN: Given your position as a buyer for Bloomingdales, are you in a management position?
MS. VEMICH: Yes.
MR. DARDEN: Have you been trained on how to ring up credit card purchases?
MS. VEMICH: I've been trained how to buy and merchandise and develop and occasionally I sell the merchandise myself.
MR. DARDEN: Okay. So you have received cash register training then?
MS. VEMICH: At one point in time we have received training, but that is not my primary function, but it is important for me to be on the floor to see what we sold. So I spent a great deal of time waiting on customers and working with them. And specifically one of the areas that I spend the most amount of time is in the glove area.
MR. DARDEN: On December 18, 1990, was there merchandise in the men's department bar coded at all?
MS. VEMICH: No.
MR. DARDEN: So you couldn't just sweep it across a device and ring up the purchase automatically?
MS. VEMICH: Know.
MR. DARDEN: How was information, that is, the sales information, placed into the computer or sales register?
MS. VEMICH: It was entered in manually.
MR. DARDEN: Okay.
MR. DARDEN: Your Honor, next in order is People's 372.
THE COURT: People's 372.
MR. DARDEN: I have shown Mr. Cochran--do you want to see the original--a copy of the exhibit next? It is entitled, "Bloomingdales glove purchases."
THE COURT: All right.
(Peo's 372 for id = Bloomingdales receipt)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. DARDEN: Miss Vemich, there is a monitor there to your right. Looking at the item marked People's 372 for identification, can you tell us what that item is?
MS. VEMICH: (no audible response.)
MR. DARDEN: The item depicted there?
MS. VEMICH: This is a Bloomingdales receipt, but it is a little bit blurred here.
MR. DARDEN: Your Honor, I have a second item. It appears to be a microfiche copy of this same receipt. It can it be marked 372-B and the item on the elmo 372-A.
THE COURT: All right. So marked.
(Peo's 372-A for id = Bloomingdales receipt)
(Peo's 372-B for id = Bloomingdales rcpt/microfiche)
MR. DARDEN: Showing what you has been marked 372-B, is that a Bloomingdales credit card sales receipt?
MS. VEMICH: Yes.
MR. DARDEN: And is that apparently a copy of what you see there on the monitor?
MS. VEMICH: Yes, it is.
MR. DARDEN: Okay. Now, looking at that receipt, there are several numbers on it; is that correct?
MS. VEMICH: Yes.
MR. DARDEN: Can you interpret those numbers for us?
MS. VEMICH: Yes.
MR. DARDEN: Okay.
MS. VEMICH: The "517" represents the department number, seasonal accessories.
MR. DARDEN: Okay. Let me stop you there. That is to the left of the sales receipt; is that correct?
MS. VEMICH: Yes.
MR. DARDEN: Okay. "517" indicates men's accessories seasonal department?
MS. VEMICH: Yes.
MR. DARDEN: Okay. Now, do you see the no. "222034" at the top upper left?
MS. VEMICH: Yes.
MR. DARDEN: Okay. What is that number?
MS. VEMICH: That is the employee's I.D. number.
MR. DARDEN: Whose employee I.D. number is that, if you know?
MS. VEMICH: It is Holina Phipps.
MR. DARDEN: Is Holina Phipps here in the courthouse this afternoon?
MS. VEMICH: No. She is here, but not in this courtroom.
MR. DARDEN: Okay. She is in the building?
MS. VEMICH: Courthouse, yes.
MR. DARDEN: Okay. Thank you. Okay. And to go down to the right of the "515," we see the numbers "55."
MS. VEMICH: Yes.
MR. DARDEN: What do those numbers indicate?
MS. VEMICH: That is the classification number and "55" represents a glove classification.
MR. DARDEN: So that indicates that gloves were purchased?
MS. VEMICH: Yes.
MR. DARDEN: Okay. And to the right of the "55" is the no. "953"?
MS. VEMICH: Yes.
MR. DARDEN: Okay. What does that number indicate?
MS. VEMICH: That is the vendor number and in this case it is Aris Isotoner.
MR. DARDEN: And so based on those three numbers then you can tell that you say there was a purchase in the men's accessories department, seasonal?
MS. VEMICH: Seasonal.
MR. DARDEN: Gloves were purchased?
MS. VEMICH: Yes.
MR. DARDEN: And that they were Aris gloves?
MS. VEMICH: Yes.
MR. DARDEN: To the right of the "953" we see the no. 70268. What is that number?
MS. VEMICH: That is the style number of the glove.
MR. DARDEN: Okay. And we will come back to that. And to the right of the "70268" you see the no. "2." What does that indicate?
MS. VEMICH: Quantity that were purchased is two, two gloves.
MR. DARDEN: Two pairs of Aris gloves?
MS. VEMICH: Yes.
MR. DARDEN: And to the right of the "2" we see the number "$77.00"?
MS. VEMICH: Yes. That is the retail for the two pair of gloves.
MR. DARDEN: Okay. And to the right of the "$77.00" we see the no. "30"; is that correct?
MS. VEMICH: Yes. And that is thirty percent off.
MR. DARDEN: So that means in the two pairs of gloves were purchased for thirty percent off at $77.00?
MS. VEMICH: Yes.
MR. DARDEN: Can you tell us what the regular price of the gloves was?
MS. VEMICH: The regular price of gloves of this style is $55.00.
MR. DARDEN: Okay. How many pairs of gloves or types of gloves did you sell at $55.00 during December of 1990?
MS. VEMICH: From this vendor, Aris--
MR. COCHRAN: Your Honor, she appears to be reading from something. Can we have a foundation?
THE COURT: Overruled. She is holding the exhibit.
MR. COCHRAN: Holding the exhibit?
THE COURT: She is holding the exhibit.
MR. COCHRAN: Very well, your Honor.
THE COURT: Proceed. Mr. Darden.
MR. DARDEN: How many different types of Aris gloves did you sell at $55.00 during December?
MS. VEMICH: There was only one Aris glove that I sold at $55.00.
MR. DARDEN: Was style number was that?
MS. VEMICH: 70263.
MR. DARDEN: And which glove the style number is 70263?
MS. VEMICH: Aris leather light glove.
MR. DARDEN: So the gloves I showed you in court today then fit the descriptions given on this sales receipt?
MS. VEMICH: Yes.
MR. DARDEN: Now, the style number on the sales receipt indicates 70268; is that correct?
MS. VEMICH: Yes.
MR. DARDEN: Did Bloomingdales ever sell an Aris glove style no. 70268?
MS. VEMICH: No, they did not.
MR. DARDEN: To borrow a phrase, is that a mistake?
MS. VEMICH: Yes.
MR. DARDEN: Does that mistake--strike that. The mistake is that the "8" should have been a "3"?
MS. VEMICH: Yes.
MR. COCHRAN: Your Honor, misleading.
THE COURT: Sustained. The answer is stricken. Rephrase the question.
MR. DARDEN: Thank you, your Honor.
MR. DARDEN: What is the mistake?
MS. VEMICH: The last digit should be a "3," not an "8."
MR. DARDEN: Has Bloomingdales ever purchased Aris glove style no. 702268?
MS. VEMICH: No.
MR. DARDEN: Do you know whether or not Aris style no. 70268 has ever been sold in the United States?
MS. VEMICH: Not that I--I don't know.
MR. DARDEN: May I have one moment, your Honor?
THE COURT: Certainly.
(Brief pause.)
MR. DARDEN: Now, does the sales receipt indicate the size of the glove?
MS. VEMICH: No, it does not.
MR. DARDEN: Does it indicate the color of the glove?
MS. VEMICH: No, it does not.
MR. DARDEN: Is there way for you to tell us that the two gloves I showed you here in court were purchased during the transaction shown here in People's 372-A?
MS. VEMICH: No.
MR. DARDEN: Okay. Is there a date on that transaction record?
MS. VEMICH: Yes. The date is December 18.
MR. DARDEN: If we could go down to the bottom of the document, Mr. Fairtlough.
(Brief pause.)
MR. DARDEN: Now, at the bottom to the right of the document do you see some numbers beginning with "3713"?
MS. VEMICH: Yes.
MR. DARDEN: And what are those numbers?
MS. VEMICH: It appears to be an American Express number.
MR. DARDEN: Okay. And is there a signature on the credit card receipt?
MS. VEMICH: Yes.
MR. DARDEN: Can you read that signature to us?
MS. VEMICH: Nicole Brown.
MR. DARDEN: Thank you. That is all I have.
THE COURT: Mr. Cochran. (Discussion held off the record between Defense counsel.)
MR. COCHRAN: Thank you very kindly, your Honor.
CROSS-EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Good afternoon, Miss Vemich.
MS. VEMICH: Hello.
MR. COCHRAN: How are you?
MS. VEMICH: Good.
MR. COCHRAN: Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
MR. COCHRAN: Now, as I understand your testimony, Miss Vemich, what you've told us is that if we look at this Bloomingdales glove purchase receipt there, you can't tell us the color of the gloves purchased; is that right?
MS. VEMICH: That's right.
MR. COCHRAN: You can't tell us the size of the gloves purchased; is that correct?
MS. VEMICH: Correct.
MR. COCHRAN: And as I understand from looking at the receipt, this purchase of two pair of gloves was made on December 18 of 1990; is that correct? Is that your understanding?
MS. VEMICH: Yes.
MR. COCHRAN: And further, if we are to look at the style number of these gloves, 70268 there, if I can make--Jonathan--move on to 70268, please. That style no. 70268, you are telling us that that was not a style number that Bloomingdales purchased from Aris Isotoner in 1990? Is that what you indicate?
MS. VEMICH: I'm indicating that that is not a style number that existed at Bloomingdales ever.
MR. COCHRAN: All right. Well, let me ask you this: Is the numbering 70268, is that a style number that existed with Aris Isotoner in 1990?
MS. VEMICH: Not that I know of.
MR. COCHRAN: Have you done any checking in that regard?
MS. VEMICH: I have inquired.
MR. COCHRAN: All right. And who did you inquire of?
MS. VEMICH: I called to see--I called Aris Isotoner to see if that number existed.
MR. COCHRAN: And where did you call?
MS. VEMICH: I called the New York office.
MR. COCHRAN: And who--do you know the name of the person that you spoke with, ma'am?
MS. VEMICH: At the time Steph Fogelson.
MR. COCHRAN: Steph Fogelson?
MS. VEMICH: Yes.
MR. COCHRAN: Do you have a report from Steph Fogelson?
MS. VEMICH: No, not really. He was not sure.
THE COURT: Do you know how to spell Steph Fogelson for our court reporter?
MS. VEMICH: F-o-g-e-l-s-o-n.
THE COURT: How do you spell the first name?
MS. VEMICH: Steph, s-t-e-p-h.
THE COURT: Thank you.
MR. COCHRAN: What was the time of that conversation with Steph Fogelson, ma'am?
MS. VEMICH: It was the time when I was shown a receipt at Bloomingdales and when I started to inquire what the merchandise was, umm, the 70268--my record showed 70263. This was 70268. I had no record of 70268, so I called the resource and asked them if it ever existed.
MR. COCHRAN: Back to my question now. What was the date that you called Mr. Fogelson?
MS. VEMICH: Probably sometime in January.
MR. COCHRAN: Of what year?
MS. VEMICH: Of this year.
MR. COCHRAN: So January of 1995 you called him and you found out, did you not, that the style no. 70268 did in fact exist with Aris Isotoner gloves and in fact it had been assigned to a customer named Harry; isn't that correct?
MR. DARDEN: Objection, hearsay.
THE COURT: Sustained.
MS. VEMICH: Could you repeat the question.
MR. COCHRAN: Let me rephrase the question.
THE COURT: Please.
MR. COCHRAN: Thank you, your Honor.
MR. COCHRAN: Did you find out, in the course of your conversation, first of all, that Aris Isotoner did in fact have a style number of 70268?
MR. DARDEN: Objection.
MR. COCHRAN: That was a style number that they produced?
MR. DARDEN: Objection, hearsay.
THE COURT: Sustained.
MS. VEMICH: I still don't understand the question.
MR. COCHRAN: Well, you don't have to answer that.
THE COURT: When there is an objection and I sustain the objection you don't have to answer the question.
MS. VEMICH: Thank you.
MR. COCHRAN: All right. The purpose, as I understand your call, was to find out about other style numbers were produced by Aris Isotoner; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And you had a conversation with Mr. Steph Fogelson in which you inquired as to whether or not there were other style numbers produced by Aris Isotoner, specifically whether or not there was a 70268 style number produced, did you not?
MS. VEMICH: Yes.
MR. DARDEN: Objection.
MR. COCHRAN: Yes or no.
THE COURT: Overruled. You can answer that question yes or no.
MS. VEMICH: Yes.
MR. COCHRAN: You asked that question, didn't you?
MS. VEMICH: I asked the question, yes.
MR. COCHRAN: Just say yes or no. All right. Did you get an answer to that question?
MS. VEMICH: No, I did not.
MR. COCHRAN: Did you get anything in writing with regard to that question?
MS. VEMICH: No, I did not.
MR. COCHRAN: Prior to your testifying here today have you ever seen a report from a Mr. Fogelson who purports to be the general manager of Aris Isotoner gloves and knits department?
MS. VEMICH: No.
MR. COCHRAN: You have never seen such a report?
MS. VEMICH: No.
MR. COCHRAN: Have you ever heard the name Hering before, H-E-R-I-N-G?
MS. VEMICH: No.
MR. COCHRAN: Now, with regard to this purchase back on December 18 of 1990, you at that time were a buyer for Bloomingdales; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: You were not the sales person in this transaction; is that correct?
MS. VEMICH: No.
MR. COCHRAN: And you don't--you didn't see who may have purchased this two pair of gloves on that particular evening or that day?
MS. VEMICH: No.
MR. COCHRAN: From the number of the employee, you do know if was a person by the name of Phipps who basically waited on this particular customer; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And have you talked to Miss Phipps?
MS. VEMICH: Yes.
MR. COCHRAN: She is in this building?
MS. VEMICH: Yes.
MR. COCHRAN: Today?
MS. VEMICH: Yes.
MR. COCHRAN: You talked to her today, I presume?
MS. VEMICH: Yes.
MR. COCHRAN: You have also talked to Mr. Rubin today also?
MS. VEMICH: Yes.
MR. COCHRAN: Now, with regard to this transaction that Mr. Darden asked you some questions about, as I understand it, there is nothing on this particular sales slip that tells us this is an Aris Isotoner glove, is there?
MS. VEMICH: Yes. The vendor number tells that it is an Aris.
MR. COCHRAN: Yes.
MS. VEMICH: And the style number and the price, $55.00, tells me that it is an Aris leather light glove.
MR. COCHRAN: But then when you look at the style number, that is a style number that was not a style number assigned to Bloomingdales; isn't that correct?
MS. VEMICH: All except the last number.
MR. COCHRAN: I'm asking you, is that number--that is not a number that was assigned to Bloomingdales, was it?
MS. VEMICH: It was not a number that was assigned to Bloomingdales.
MR. COCHRAN: All right. And Mr. Darden pointed out, that is a mistake, you believe?
MS. VEMICH: Yes, I do.
MR. COCHRAN: But you were not present at the time of this purchase; is that correct?
MS. VEMICH: No, I was not.
MR. COCHRAN: And what you have been asked to do is to look at some records that are now approximately four and a half years old; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And to try and interpret them for us; isn't that correct?
MS. VEMICH: Yes.
MR. COCHRAN: Now, these particular gloves that were shown to you during the break, was that the first time that you had seen these particular gloves?
MS. VEMICH: No.
MR. COCHRAN: When had you seen them before?
MS. VEMICH: In January.
MR. COCHRAN: And where did you see them at that time?
MS. VEMICH: I saw them I believe at the evidence place.
MR. COCHRAN: At the police department?
MS. VEMICH: Yes.
MR. COCHRAN: In other words, you came out here--you live in California?
MS. VEMICH: No, I live in New York.
MR. COCHRAN: All right. So you came out here from New York and you looked at the gloves at that time?
MS. VEMICH: Yes.
MR. COCHRAN: All right. So when we saw these during the recess today, was that the second time that you had seen them?
MS. VEMICH: Yes.
MR. COCHRAN: And who, may I ask, was present at the time you saw them in January?
MS. VEMICH: Phil Vannatter.
MR. COCHRAN: Detective Vannatter. Anyone else?
MS. VEMICH: Detective Lange.
MR. COCHRAN: All right. Anyone else?
MS. VEMICH: There could have been someone else, but I didn't know the name.
MR. COCHRAN: All right. Those are the only ones you can recall at this point?
MS. VEMICH: Yes.
MR. COCHRAN: All right. And you didn't make any reports or anything regarding that particular visit, did you?
MS. VEMICH: No.
MR. COCHRAN: And I think we've established that you can't tell from this receipt either the color or the size of these particular gloves; is that correct?
MS. VEMICH: From the receipt?
MR. COCHRAN: Yes.
MS. VEMICH: No.
MR. COCHRAN: Now, with regard to the gloves--and if we might see the gloves, your Honor?
THE COURT: Which one do you want, Mr. Cochran?
MR. COCHRAN: Let's start with the right glove.
MR. DARDEN: Your Honor, I think Mr. Cochran is going to have to change his gloves.
MR. COCHRAN: Yes, your Honor. We have certainly made everybody more sensitive about gloves around here, your Honor, and I will be glad to.
(Brief pause.)
THE COURT: All right. The record should reflect Mr. Wooden has put another piece of clean paper on the shelf before the witness.
MR. COCHRAN: Thank you, your Honor.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. COCHRAN: May I approach, your Honor?
THE COURT: You may.
MR. COCHRAN: For the record, your Honor, I'm taking People's exhibit no. 9 for identification out and I'm going to place this before the witness.
THE COURT: Actually that is LAPD item no. 9, People's 164-A.
MR. COCHRAN: Thank you, your Honor. Item no. 9, yes.
MR. COCHRAN: Now, this is--this particular glove that I placed here is one of the items that you saw back in January; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And this is one of the items that you saw here in court today; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And if we are to look inside this particular item, it has some kind of a lining. And is that cashmere lining, as far as you know?
MS. VEMICH: Yes.
MR. COCHRAN: And in this particular glove, which I guess is the right glove, there are no markings in this glove that came from the factory, are there?
MS. VEMICH: Not, no, no.
MR. COCHRAN: There are no markings that came from the factory; is that correct?
MS. VEMICH: No.
MR. COCHRAN: All right. The writing inside this glove was placed by someone at a later time; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: This is a brown glove; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: Can you tell the size of this glove from looking at it?
MS. VEMICH: Yes. It appears to be an extra large glove.
MR. COCHRAN: May I try this on, your Honor?
MR. COCHRAN: Supposed to be an extra large glove?
MS. VEMICH: Yes.
MR. COCHRAN: Are these gloves, do they come--where are they made?
MS. VEMICH: They are made in the Philippines.
MR. COCHRAN: Do they come--the extra large is kind of small?
MS. VEMICH: No, but they stretch.
MR. COCHRAN: I see. So this is a--this is a normal extra large glove; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: But you are saying they stretch?
MS. VEMICH: Yes, but that doesn't fit you.
MR. COCHRAN: It is too small?
MS. VEMICH: It is too big.
MR. COCHRAN: Since I'm wearing it, it seems too small for me, but we won't argue about that. You are saying--
MR. COCHRAN: Your Honor, I would like to get the other glove out, if I might, and change gloves.
(Brief pause.)
THE COURT: Mr. Wooden.
(Brief pause.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. COCHRAN: May I approach again, your Honor?
THE COURT: You may.
MR. COCHRAN: I believe this purports to be the left-handed glove, your Honor.
THE COURT: Yes, People's 77.
MR. COCHRAN: People's 77.
MR. COCHRAN: And this People's 77, if you know, does that appear to be at least similar to the other glove that you saw back in January of 1995?
MS. VEMICH: Yes.
MR. COCHRAN: I presume that you did not put your initials on either of gloves at that time; is that correct?
MS. VEMICH: My initials?
MR. COCHRAN: Yes. You didn't put your initials on either glove, did you?
MS. VEMICH: No.
MR. COCHRAN: All right. You were just present with Detectives Vannatter and Lange at the time that these gloves were displayed to you; is that correct, ma'am?
MS. VEMICH: Yes.
MR. COCHRAN: And at the time when you saw Detectives Vannatter and Lange handle these gloves at that time, were they using any kind of paper like this?
MS. VEMICH: Yes.
MR. COCHRAN: Were they using any gloves, if you recall?
MS. VEMICH: Absolutely.
MR. COCHRAN: You recall that, do you?
MS. VEMICH: Yes, because I touched the gloves and I had to use the latex gloves and the butcher paper and--
MR. COCHRAN: And this--this particular glove has a label inside of it; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And the label says "Aris"; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And it is a cashmere lined?
MS. VEMICH: Yes.
MR. COCHRAN: And it says "Made in Philippines."
MS. VEMICH: Yes.
MR. COCHRAN: And it says "Extra large"; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: Is there any other--is there a particular lot or style number in either of these gloves indicating this is a 70263 glove?
MS. VEMICH: No, not that I know of.
MR. COCHRAN: Well, do you want to take a look?
MS. VEMICH: I already looked.
MR. COCHRAN: So is it in there?
MS. VEMICH: Not to the visible eye, no.
MR. COCHRAN: All right. Well--not to the visible eye?
MS. VEMICH: Right.
MR. COCHRAN: All right. Did you use anything other than the visible eye to try to determine that?
MS. VEMICH: That is what I used.
MR. COCHRAN: That is what you used?
MS. VEMICH: Yes.
MR. COCHRAN: You did not see anything that indicated 70263, did you?
MS. VEMICH: No, I did not.
MR. COCHRAN: Did you see anything that indicated 70268?
MS. VEMICH: No.
MR. COCHRAN: Did you ever have a conversation with Detective Vannatter in which you discussed the subject of whether or not Detective Vannatter ever spoke with Mr. Steph Fogelson?
MR. DARDEN: Objection, irrelevant.
THE COURT: Overruled.
MS. VEMICH: I don't know if he had a conversation with Steph Fogelson.
MR. COCHRAN: That wasn't my question. Did you ever have a conversation with him wherein you discussed whether or not you had ever talked to Mr. Fogelson?
MS. VEMICH: No.
MR. COCHRAN: And is this--this is supposedly also an extra large glove?
MS. VEMICH: Yes, it is.
MR. COCHRAN: Now, prior to coming here to testify today have you had occasion to watch these proceedings on television?
MS. VEMICH: I work so only--the answer is not too much.
MR. COCHRAN: Well--
MS. VEMICH: Except on the news.
MR. COCHRAN: Let's get back to my question. Have you watched these proceedings on television?
MS. VEMICH: Sometimes, yes.
MR. COCHRAN: And that was during the course of this past year; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: When did you receive your subpoena or that you were advised to testify in this matter?
MS. VEMICH: I didn't receive a subpoena.
MR. COCHRAN: You were told that you were going to testify at some point, however?
MS. VEMICH: Yes.
MR. COCHRAN: When was that?
MS. VEMICH: Yesterday--Tuesday at 4:30.
MR. COCHRAN: Well, you live in New York, right?
MS. VEMICH: Yes.
MR. COCHRAN: And you were told Tuesday at 4:30. Were you out here when you were told that?
MS. VEMICH: No.
MR. COCHRAN: You were still in New York?
MS. VEMICH: Yes.
MR. COCHRAN: And when you came out here in January did you expect you might be testifying in this matter?
MS. VEMICH: I wasn't sure.
MR. COCHRAN: But you were told that you were a potential witness; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And you were called yesterday and told to come to testify; is that correct?
MS. VEMICH: Today is Thursday? Tuesday. I was called.
MR. COCHRAN: Tuesday you were told and then you came to California yesterday?
MS. VEMICH: Yes.
MR. COCHRAN: And did you talk with the District Attorney's office, or representatives thereof, before you testified today?
MS. VEMICH: Yes.
MR. COCHRAN: Who did you talk with?
MS. VEMICH: Umm, Patty Jo Fairbanks.
MR. COCHRAN: And who else?
MS. VEMICH: Chris Darden.
MR. COCHRAN: Mr. Darden here?
MS. VEMICH: Yes.
MR. COCHRAN: Had you talked with Mr. Darden back in January of this year?
MS. VEMICH: No, I did not.
MR. COCHRAN: Now, is your testimony that Bloomingdales sold 300 pairs of extra large Aris Isotoner gloves, brown--was that back in 1990?
MR. DARDEN: Objection, misstates the testimony.
MR. COCHRAN: I'm asking.
THE COURT: Overruled.
MR. COCHRAN: Is that correct?
MS. VEMICH: I was asked how many pairs were purchased in brown.
MR. COCHRAN: All right.
MS. VEMICH: And I said approximately 300 were purchased in brown.
MR. COCHRAN: Purchased by customers; is that correct?
MS. VEMICH: No, purchased for Bloomingdales to sell.
MR. COCHRAN: All right. Purchased to sell to customers; is that correct?
MS. VEMICH: Correct.
MR. COCHRAN: Over what period of time were these 300 pairs purchased by Bloomingdales?
MS. VEMICH: Between October and December.
MR. COCHRAN: Of what year?
MS. VEMICH: `90.
MR. COCHRAN: All right. So between the period October to December, 1990, Bloomingdales purchased 300 pairs of Aris Isotoner brown gloves; is that correct?
MS. VEMICH: Extra large.
MR. COCHRAN: All right. Are you aware that the original order by Bloomingdales of Aris light gloves was approximately 6000 pairs?
MS. VEMICH: The original order for Aris leather lights were 12,000 pair.
MR. COCHRAN: All right. Well, let's talk about that. It wasn't 6000 pairs; it was 12,000?
MS. VEMICH: The purchase was approximately ten to 12,000 pair.
MR. COCHRAN: All right. Which was it, ten or twelve?
MS. VEMICH: Between ten and twelve.
MR. COCHRAN: All right. When was that--when was that original order?
MS. VEMICH: For October delivery.
MR. COCHRAN: All right. So we could expect then they received somewhere between ten or 12,000 pairs of these Aris light gloves shortly after October and for October of 1990; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And what you are telling us is that during the period between October and the end of the year--strike that. Of that number, 300 were of the extra large brown variety; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: Do you know how many you sold during that period of the 300 pairs that were brown extra large?
MS. VEMICH: Approximately 200 were sold.
MR. COCHRAN: 200 of the 300?
MS. VEMICH: (no audible response.)
MR. COCHRAN: And how do you know that?
MS. VEMICH: It is about a 65 percent sell-through and that is an average normal sell-through for gloves during a fall season.
MR. COCHRAN: All right. So are you giving us your estimate or are there some records you referred to prior to coming to California?
MS. VEMICH: I'm giving you an estimate or an approximation of what I believe sold.
MR. COCHRAN: Okay. So have you--let me ask you this: Have you had occasion to go and actually check what was sold between October and December of 1990 regarding these gloves?
MS. VEMICH: I don't have documentation that proves that.
MR. COCHRAN: Okay. I understand. What you then have given this jury is your best estimate of what would happen in a sale over Christmas time and in the fall; is that correct?
MS. VEMICH: Yes, on this particular glove.
MR. COCHRAN: And this is garnered over your experience; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: All right. So it could have been more or it would have been less; is that correct?
MS. VEMICH: Could have been.
MR. COCHRAN: All right. But you have no records to back that up, do you?
MS. VEMICH: I have records that back up--that back up that approximately 65 percent sell-through on leather gloves or gloves during a fall season is a very good estimate.
MR. COCHRAN: I understand that, but you don't have any records to say the exact number, do you, ma'am?
MS. VEMICH: No, I do not.
MR. COCHRAN: Okay. So we will accept the fact that about 65 percent you believe could have been sold during this period; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: That is how you arrive at the number of 200; is that correct?
MS. VEMICH: Right.
MR. COCHRAN: Now, if you know, are there any knock-offs of these gloves that are sold, at least back in 1990 or produced?
MS. VEMICH: Not that I know of because of the distinct characteristics.
MR. COCHRAN: So you are not aware of any knock-offs, are you?
MS. VEMICH: No, I am not.
MR. COCHRAN: With regard to the two gloves that I put before you, you can't tell by looking at those gloves whether actually they are an actual pair, can you?
MS. VEMICH: They appear to be a pair.
MR. COCHRAN: They look similar, don't they?
MS. VEMICH: They sure do.
MR. COCHRAN: But there is no way you can tell whether those gloves were purchased at the same time, can you?
MS. VEMICH: No, no.
MR. COCHRAN: You can't do that, can you?
MS. VEMICH: No.
MR. COCHRAN: In your business have you had occasion to do any investigations regarding so-called knock-offs of these kind of gloves?
MS. VEMICH: Sure. As a buyer I think that it is very important to be aware of what is going on in the marketplace, so yes, I study, I go to competition, I go to stores. I get the opportunity to see every single glove manufactured. I go into factories, et cetera, and I have not seen a knock-off of these gloves.
MR. COCHRAN: All right. Now, with regard to the bar coding of this particular number--
MS. VEMICH: Uh-huh.
MR. COCHRAN: --bar coding is a procedure by which you would swipe the glove through some kind of electronic procedure and you would actually get the number up; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And as I understand your testimony, in December of 1990 when Miss Phipps made this particular purchase, you did not have bar coding at Bloomingdales is that right?
MS. VEMICH: Not at that time, no.
MR. COCHRAN: So that the style number that Mr. Fairtlough has been kind enough to put up there for us was manually entered; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And hence we got this no. 70268; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: Have you checked the other numbers that were on that particular receipt?
MS. VEMICH: Yes.
MR. COCHRAN: You have done that?
MS. VEMICH: Yes.
MR. COCHRAN: Do any of your receipts or any of the receipts you had back at that time spell out either the color or the size of a particular item at all?
MS. VEMICH: No, they do not.
MR. COCHRAN: With regard to the prices of gloves back in December of 1990, I presume that Bloomingdales sold a number of different kind of gloves at that time; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: And were there other gloves that were of the same price or the same discount accorded during December of 1990 as Aris Isotoner?
MS. VEMICH: Not at the same price.
MR. COCHRAN: There were no other gloves in which the discount rate would be thirty percent?
MS. VEMICH: No.
MR. COCHRAN: At that time? Are you sure about that? Do you have records to that effect?
MS. VEMICH: No, but I remember very clearly, because I spent a great deal of time on the selling floor selling gloves personally myself. I was very involved on each style and understanding what made it sell, what made it not sell. And I know that there were no other gloves at $55.00, specifically from Aris, Aris.
MR. COCHRAN: That was back in 1990, you remember this and you know that?
MS. VEMICH: Yes, I remember this.
MR. COCHRAN: Were there any other gloves, other than Aris gloves, that sold for that approximate price, $55.00, back in December of 1990?
MS. VEMICH: I don't recall.
MR. COCHRAN: That is what I'm asking. I wasn't just talking about Aris; I was talking about any gloves.
MS. VEMICH: Okay.
MR. COCHRAN: In Bloomingdales in December of 1990, were there others or can you not tell us?
MS. VEMICH: I can't recall.
MR. COCHRAN: All right. May I have just a second, your Honor?
THE COURT: Certainly.
(Brief pause.)
MR. COCHRAN: These gloves that were ordered from Aris, were they shipped to Bloomingdales in October or were they shipped in August, if you know?
MS. VEMICH: They were shipped in the fall season. They were shipped on several different orders depending on how the manufacturer shipped. They came into--into our warehouse approximately October through the beginning of December.
MR. COCHRAN: These particular gloves retail for what, 18 or 19 dollars?
MS. VEMICH: These gloves retail for $55.00.
MR. COCHRAN: I mean they wholesale for 18 or 19?
MS. VEMICH: They are about $20.00.
MR. COCHRAN: They retail for about 55?
MS. VEMICH: 55.
MR. COCHRAN: Is that right? Nice mark-up, isn't it?
MS. VEMICH: (no audible response.)
THE COURT: No comment.
MR. COCHRAN: Just curiosity.
MS. VEMICH: They were thirty percent off.
MR. COCHRAN: But that was only at Christmas time, right?
MS. VEMICH: (no audible response.)
MR. COCHRAN: Very well. Thank you. I have nothing further your Honor at this point.
THE COURT: Mr. Darden, any further questions from Miss Vemich?
MR. DARDEN: Thank you, your Honor.
REDIRECT EXAMINATION BY MR. DARDEN
MR. DARDEN: Miss Vemich--
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: Important letter from upstairs, your Honor.
MR. DARDEN: Miss Vemich, what was it about those gloves that made them sell?
MR. COCHRAN: Just a moment. That calls for speculation, I suppose.
THE COURT: I think she is an expert.
MS. VEMICH: These gloves were extremely lightweight. The reason they sold, from my experience in waiting on customers, is that they were almost like a second skin. Umm, you could pick up a penny or a needle practically with them and they were very--again they are very, very thin, and many people like that about these gloves and that is why they were called leather light and that is why we marked them leather lights and it was a big seller. It was a big part of my business.
MR. DARDEN: You told us that approximately 200 pairs of those gloves in size extra large and in a brown color sold during the Christmas season, 1990?
MS. VEMICH: Yes, approximately 200 pair.
MR. DARDEN: Okay. I neglected to ask you, when the receipt was on the screen, where that particular purchase was made?
MS. VEMICH: In the 59th Street store.
MR. DARDEN: In New York city?
MS. VEMICH: Yes.
MR. DARDEN: Are you aware the Defendant has a home in New York city?
MR. COCHRAN: I object to that, your Honor, leading and suggestive.
THE COURT: Sustained. Sustained.
MR. COCHRAN: Assumes a fact not in evidence.
THE COURT: Sustained.
MR. COCHRAN: Thank you, your Honor.
MR. DARDEN: You don't know how those gloves made it here to Los Angeles, do you?
MS. VEMICH: No.
MR. DARDEN: Okay. Or to Bundy?
MS. VEMICH: No.
MR. COCHRAN: Assumes a fact not in evidence. Objection.
THE COURT: Overruled.
MR. DARDEN: You don't know how one of those gloves found their way to Bundy?
MS. VEMICH: No.
MR. COCHRAN: Object to the form of that question, argumentative.
THE COURT: Overruled.
MR. DARDEN: Do Aris Isotoner gloves usually have a style number imprinted somewhere on the glove?
MS. VEMICH: Not that I know of.
MR. DARDEN: But you mentioned a moment ago that there was no style number that you could see with the naked eye?
MS. VEMICH: No. There is no style number that you can see.
MR. DARDEN: Are you suggesting that there is some type of number, identification number somewhere on the glove?
MS. VEMICH: I believe there is some kind of identification on the glove underneath the lining that may tell you the lot number or whatever, in what sequence they were made. I am not an expert in this area.
MR. DARDEN: Okay. And when you identified the two gloves shown to you by Mr. Cochran and myself, was that identification based on the sales receipt or was it based on your observations of the gloves?
MS. VEMICH: The observation of the gloves.
MR. DARDEN: You know that style when you see it?
MS. VEMICH: I know that style.
MR. DARDEN: Now, is there a particular way that gloves are supposed to fit on a man's hands?
MS. VEMICH: They say fit like a--
MR. COCHRAN: Just a moment. Just a moment. I object to the form of the question.
THE COURT: Overruled.
MR. COCHRAN: No foundation, your Honor.
THE COURT: Overruled.
MR. DARDEN: How are they supposed to fit, Miss Vemich?
MS. VEMICH: They are supposed to fit like a glove. They are supposed to fit tight. They are supposed to fit tight and snug and they stretch and they are not supposed to be baggie.
MR. DARDEN: And they were on Mr. Cochran's hand?
MS. VEMICH: With respect--
MR. COCHRAN: Assumes a fact not in evidence. Move to strike.
THE COURT: Sustained.
MR. DARDEN: Did the gloves appear baggie when Mr. Cochran put them on?
MR. COCHRAN: Calls for speculation.
THE COURT: Overruled. She was sitting right next to you, Mr. Cochran.
MS. VEMICH: Yes.
MR. DARDEN: You were able to see Mr. Cochran's hand?
MS. VEMICH: Yes.
MR. DARDEN: What size of glove would you say would be appropriate for him?
THE COURT: That is not relevant.
MR. DARDEN: Well, Mr. Cochran suggested that his hand was a size large. Is his hand a size large in terms of glove size?
MR. COCHRAN: Assumes a fact not in evidence.
THE COURT: It is not relevant, counsel.
MR. DARDEN: If we could just put the sales receipt back up for just one moment, 372-A. Miss Vemich, assuming that there was no tile number that is no 70268 or 70263 on the sales receipt, could you still tell us the make, style, model and price of the glove sold on December 18, 1990?
MS. VEMICH: Yes, because it says that it is a leather glove, it said it is made by vendor Aris, it was $55.00, two were purchased at $55.00, 110 and thirty percent off is 77 and I only had one glove from Aris at $55.00.
MR. DARDEN: Okay. So $77.00 is thirty percent of $110.00?
MS. VEMICH: Yes.
THE COURT: 70 percent.
MS. CLARK: 70 percent.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: That is why I'm a lawyer, your Honor. We never get mark downs. Can I have one moment?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: May I have one moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: If we could go down to the bottom of the receipt again.
MR. DARDEN: Okay. You see the name "Nicole Brown" written on the receipt?
MS. VEMICH: Yes.
MR. DARDEN: Okay. Are customers required to sign their names when they receive the merchandise and upon the purchase?
MS. VEMICH: Yes.
MR. DARDEN: Okay. Is that apparently what Nicole Brown did in this situation?
MS. VEMICH: Yes.
MR. DARDEN: Thank you.
THE COURT: Mr. Cochran, anything further?
MR. COCHRAN: Just a couple other questions, yes.
RECROSS-EXAMINATION BY MR. COCHRAN
MR. COCHRAN: With regard to these gloves, Miss Vemich, these gloves are sold only for men; is that correct?
MS. VEMICH: Yes.
MR. COCHRAN: These are not unisex gloves, are they?
MS. VEMICH: No.
MR. COCHRAN: Would you agree a person who was wearing a pair of gloves could best determine whether or not those gloves were fitting appropriately? Isn't that kind of a personal thing?
MS. VEMICH: Sure.
MR. COCHRAN: Because as a buyer the customer is always right, isn't he?
MS. VEMICH: Sure.
MR. COCHRAN: If the customer told you those gloves were too small for him, you would accept that, wouldn't you?
MS. VEMICH: If you wanted to buy them, I would not tell you.
MR. COCHRAN: You wouldn't quarrel, would you?
MS. VEMICH: No. I can give my opinion.
MR. COCHRAN: All right. Well, thank you. Now, with regard to the actual numbers of gloves sold, I believe you told us that your general estimate would be that approximately 200 of the 300 pairs were sold during this particular fall period, right?
MS. VEMICH: I said 300 were purchased, approximately, in brown extra large.
MR. COCHRAN: Yes.
MS. VEMICH: About 200 were sold.
MR. COCHRAN: Yes, that is what I said, 200 were sold, right. Would the other hundred later be sold at a later time or what would happen?
MS. VEMICH: They would be returned to the vendor.
MR. COCHRAN: You have no record as to what number was actually returned to the vendor?
MS. VEMICH: No.
MR. COCHRAN: With regard to the receipt that Mr. Darden just placed up there again, with regard who how you are able to identify any of the information, it boils down to the correct inputting by Miss Phipps as to those various numbers; isn't that correct?
MS. VEMICH: Yes.
MR. COCHRAN: If she is wrong about some other number about the vendor and she was wrong about the style number, that would affect what you are telling us; isn't that correct, ma'am?
MS. VEMICH: It wasn't only the style number that determined--made me believe that this was an Aris leather light. It was all the other combinations. It was the class number and it was the retail number.
MR. COCHRAN: Let me get back to my question. My question was if she was wrong about other numbers entered there manually, as she was with the style number, that would affect the information that you have given us here today; isn't that correct, ma'am?
MS. VEMICH: Yes, it could have.
MR. COCHRAN: That is one of the reasons why Bloomingdales and other modern stores have now gone to the bar coding effect so you take out the aspect of human error; is that correct?
MS. VEMICH: Sure.
MR. COCHRAN: Thank you very kindly.
THE COURT: Mr. Darden, anything further?
FURTHER REDIRECT EXAMINATION BY MR. DARDEN
MR. DARDEN: So I that the record is clear, 200 pairs of extra large brown Aris Isotoner--
MS. VEMICH: Were sold.
MR. DARDEN: --were sold during that Christmas season. And when men buy gloves do they tend to exaggerate the size of their hands?
MR. COCHRAN: Just a moment. Object to the form of that question.
THE COURT: Overruled.
MR. DARDEN: Do they tend to exaggerate the size of their hands when they purchase gloves?
MR. COCHRAN: Your Honor, that--no foundation, your Honor.
THE COURT: She is an expert in glove sales.
MS. VEMICH: Usually women buy gloves for men.
MR. DARDEN: And do they exaggerate size?
MR. COCHRAN: Objection, speculative, your Honor.
THE COURT: Is that a serious question, Mr. Darden?
MR. DARDEN: Yeah, that is a serious question.
MR. DARDEN: Do you have many returns from customers with gloves for resizing?
MS. VEMICH: A few. Not an inordinate amount; a few
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: And the gloves we showed you today, they are definitely exclusive to Bloomingdales, correct?
MS. VEMICH: They are exclusive to Bloomingdales, yes.
MR. DARDEN: Thank you.
MR. COCHRAN: I have nothing further, your Honor.
THE COURT: All right. Miss Vemich, thank you very much. You are excused. All right. Madam court reporter, would this be a good time to switch reporters?
REPORTER OLSON: Yes.
THE COURT: All right. We will take a ten-minute recess to switch court reporters. And remember my admonitions to you. All right. We will take a ten-minute recess to switch court reporters.
(Recess.)
(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. All parties are again present. All right. Deputy Magnera, let's have the jury, please. Mr. Darden, this is your witness next up?
MR. DARDEN: Yes, your Honor.
THE COURT: All right.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we've been rejoined by all the members of our jury panel. Mr. Darden, you may call your next witness.
MR. DARDEN: Thank you, your Honor. Mr. Rubin.
MR. SHAPIRO: Raise your right hand, please.
Richard Rubin, called as a witness by the People, was sworn and testified as follows:
THE CLERK: 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?
MR. RUBIN: I do.
MR. SHAPIRO: Please have a seat on the witness stand and state and spell your first and last names for the record.
MR. RUBIN: Richard Rubin.
MR. SHAPIRO: Spell it, please.
MR. RUBIN: R-U-B-I-N.
MR. SHAPIRO: Thank you.
THE COURT: Mr. Darden.
MR. DARDEN: Thank you, your Honor.
DIRECT EXAMINATION BY MR. DARDEN
MR. DARDEN: Mr. Rubin, who was your employer during 1990?
MR. RUBIN: Aris Isotoner.
MR. DARDEN: And what was your position at that time?
MR. RUBIN: I was vice president and general manager.
MR. DARDEN: When did you first begin with the company?
MR. RUBIN: I started with them in 1976.
MR. DARDEN: Okay. And what were your duties in your capacity as vice president and general manager?
MR. RUBIN: I was responsible for the design, manufacturing, production, raw material, sales and marketing of all men's gloves.
MR. DARDEN: During 1990, did iris--Aris Isotoner rather have a model 90268? I'm sorry. 70268?
MR. RUBIN: Not in the United States.
MR. DARDEN: But you did have such a model?
MR. RUBIN: Yes, we did.
MR. DARDEN: Did you sell that model of glove here in the United States?
MR. RUBIN: No, we did not.
MR. DARDEN: Had you ever sold that model outside the United States?
MR. RUBIN: That model was developed, designed and distributed in Europe.
MR. DARDEN: Were any of those gloves sold in Europe during 1989?
MR. RUBIN: Not to my knowledge.
MR. DARDEN: 1990?
MR. RUBIN: Not to my knowledge.
MR. DARDEN: Were any of those gloves ever shipped to Bloomingdales?
MR. RUBIN: No.
MR. DARDEN: Now, you did have an exclusive contract with Bloomingdales; is that correct?
MR. RUBIN: I'm sorry. I really don't understand the question regarding "Contract."
MR. DARDEN: Well, was there a model or style of glove that you shipped to Bloomingdales exclusively?
MR. RUBIN: Yes.
MR. DARDEN: Okay. And was that model 70263?
MR. RUBIN: Yes.
MR. DARDEN: And we showed you some gloves here today; is that correct?
MR. RUBIN: Yes, you did.
MR. DARDEN: And you--strike that. I take it that you've seen just about every model Aris ever produced, that is up until 1990?
MR. RUBIN: I've actually seen every model that Aris has produced. The company I believe is about 80 years old. I saw every model that was produced from the inception of the company up until 1990.
MR. DARDEN: Okay. Let me show you the glove marked 164-A, the Rockingham glove. Is this the glove that we showed you during the afternoon break today?
MR. RUBIN: Yes, it is.
MR. DARDEN: Looking at that glove, can you tell us which style or model that glove is?
MR. RUBIN: This is the right hand of a style 70263.
MR. DARDEN: And how can you tell that?
MR. RUBIN: Well, first of all, the model was exclusive to Bloomingdales. It was only manufactured and distributed to them. No other retailer in the United States had this model. And because of this particular type of sewing, which was unique to this model as well as the weight of the cashmere lining, the weight of the leather utilized and the way the vent is put into the palm, this could really not be any other style except 70263.
MR. DARDEN: And that is the glove exclusive to Bloomingdales; is that correct?
MR. RUBIN: Yes, it is.
MR. DARDEN: Did you ship that glove to any other department store during 1990?
MR. RUBIN: No other store of any type.
MR. DARDEN: Have you ever seen that glove sold in any other store?
MR. RUBIN: No, I have not.
MR. DARDEN: Have you even seen it sold anywhere in the world other than in Bloomingdales?
MR. RUBIN: No, I have not.
MR. DARDEN: Let me show you what has been marked as People's 77, the Bundy glove. Is this the glove that I showed you earlier today?
MR. RUBIN: Yes, it is.
MR. DARDEN: And looking at this glove, can you tell us the style of this glove?
MR. RUBIN: This is the left hand of a style 70263.
MR. DARDEN: And is this an Aris Isotoner glove?
MR. RUBIN: It's actually an Aris leather glove. It's not an Isotoner glove.
MR. DARDEN: Does it have a tag in it that says "Aris"?
MR. RUBIN: Yes, it does.
MR. DARDEN: Is this also a leather light?
MR. RUBIN: Yes.
MR. DARDEN: Left-handed glove?
MR. RUBIN: Yes.
MR. DARDEN: The one in front of you is a right-handed glove?
MR. RUBIN: Yes.
MR. DARDEN: Do you recall the retail price of these gloves at Bloomingdales during 1990?
MR. RUBIN: The initial retail was $55.
MR. DARDEN: And do you know whether or not they were on sale during the Christmas season in 1990?
MR. RUBIN: At various times during the fall season of every year, they have sale events that range at various discounts, and I'm sure on occasion this product was on sale.
MR. DARDEN: Now, is this glove different from other Aris gloves in terms of the make, the make-up of it?
MR. RUBIN: The sewing is exclusive to this particular style. There was another style that was produced with a different lining, a different vent. It made use of the same sewing, but it was minuscule in quantity. It was distributed outside of Bloomingdales.
MR. DARDEN: Now, is there anything special about the weight of the leather of this glove?
MR. RUBIN: Yes. This leather is approximately 30 percent lighter than conventional men's weight leather and approximately 10 percent heavier than conventional lady's weight leather, thus making it what was called an Aris lights glove. It was a very light supple type product that was very well received by Bloomingdales' customers.
MR. DARDEN: And the lining, what is the lining comprised of?
MR. RUBIN: This lining is a--what is known as a 10-gauge knit lining. It's made with one strand of yarn, a cashmere yarn and it is a hundred percent cashmere.
MR. DARDEN: Okay. Now, was that style or model discontinued at some point?
MR. RUBIN: It is my understanding that as they approached 1992, since this was a model that was extremely difficult to manufacture in any type of quantity, that gradually they did phase out of this type of sewing.
MR. DARDEN: Now, how common in the market is it, that is to sell men's leather gloves at $55?
MR. RUBIN: Very rare.
MR. DARDEN: Is there some average price for men's leather gloves?
MR. RUBIN: The average price--in what year would we be talking about?
MR. DARDEN: Christmas season, 1990.
MR. RUBIN: In 1990, the average unit retail of a leather glove probably was slightly over $20 on a national average.
MR. DARDEN: Now, you're no longer with Aris Isotoner?
MR. RUBIN: I have not been there since the end of July 1990.
MR. DARDEN: Okay. Are who are you with now?
MR. RUBIN: I'm the president of Mundy West Corps Corporation, a manufacturer of men's and lady's leather accessories.
MR. DARDEN: Thank you.
MR. DARDEN: That's all I have.
THE COURT: Mr. Cochran.
MR. COCHRAN: Thank you, your Honor.
CROSS-EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Good afternoon, Mr. Rubin.
MR. RUBIN: Good afternoon.
MR. COCHRAN: And how long were you with the Aris Isotoner company prior to leaving in July of 1990, sir?
MR. RUBIN: I started as a sales representative in 1976, and then in January of 1981, I became an executive of the management team. So for nine and a half years, from 1981 until approximately August 1st, 1990, I was working in New York out of their main offices.
MR. COCHRAN: So you were with them something like 14 years altogether; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: And then you left, as I understand it, in about July of 1990; is that right?
MR. RUBIN: Right.
MR. COCHRAN: All right. Now, with regard to what--you call these as Aris light gloves; is that correct?
MR. RUBIN: Correct.
MR. COCHRAN: And you established for us that in your checking, you were able to find out that the Aris Isotoner company did in fact have a style no. 70268; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: And you are aware on this case that the sales receipt from Bloomingdales from December 18th, 1990 had that particular style number. You're aware of that?
MR. RUBIN: That's correct.
MR. COCHRAN: And you've had occasion, have you not, to check--to do some checking regarding that style number, haven't you?
MR. RUBIN: Yes.
MR. COCHRAN: Did you have a conversation with Septh Vogelson at some point?
MR. RUBIN: No.
MR. COCHRAN: You never talked with him?
MR. RUBIN: No.
MR. COCHRAN: But you were able to ascertain in your search that the style 70268 was exclusive to a customer named herring in Europe; isn't that right?
MR. RUBIN: That's what I was shown on a document once I arrived here.
MR. COCHRAN: Arrived here in Los Angeles?
MR. RUBIN: Yes.
MR. COCHRAN: Oh, you didn't find this out on your own?
MR. RUBIN: No. I knew in advance.
MR. COCHRAN: You've answered that. You've answered that. You didn't find that out on your own?
MR. RUBIN: I knew--I didn't know the customer.
MR. COCHRAN: Okay. Well, let me go back. Let me ask you another question. In your position while you were still with Aris--
MR. RUBIN: Yes.
MR. COCHRAN: --did you ever have occasion to talk to the customer who the 70268 style was for?
MR. RUBIN: Not the customer. The sales agent.
MR. COCHRAN: All right. You talked to the sales agent at some point?
MR. RUBIN: Yes.
MR. COCHRAN: All right. And was that person in Europe?
MR. RUBIN: Yes.
MR. COCHRAN: All right. And now, with regard then--you've seen prior to your testifying here the Bloomingdales receipt; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: And you--in looking at that, you never anyplace in that receipt saw the number 70263, did you?
MR. RUBIN: No, I did not.
MR. COCHRAN: Now, am I correct in assuming that these--this style of glove, the Aris light, was manufactured by Aris in the Philippines; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: And that they started manufacturing this particular glove in what year?
MR. RUBIN: This glove was produced in the fall of 1989, in the spring of 1990.
MR. COCHRAN: All right. So the first time it would have been produced would be in the fall of `89; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: And then it's your understanding they were produced again in 1990; is that correct?
MR. RUBIN: I believe they were produced in the fall of 1990 again.
MR. COCHRAN: All right. And it was your understanding also that they were produced in 1992--`91 and `92; isn't that correct?
MR. RUBIN: Not in `92.
MR. COCHRAN: All right. `91.
MR. RUBIN: Yes.
MR. COCHRAN: All right. And at some point, this Brosser stitching was changed; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: So it became a different kind of glove?
MR. RUBIN: Different stitching.
MR. COCHRAN: Right? Okay. Just so that we're clear, they were produced in 1989, right?
MR. RUBIN: Yes.
MR. COCHRAN: 1990, right?
MR. RUBIN: Yes.
MR. COCHRAN: 1991?
MR. RUBIN: Yes.
MR. COCHRAN: And they were changed in `92?
MR. RUBIN: That's what I understand.
MR. COCHRAN: Okay. You had left by that time?
MR. RUBIN: I had left actually in 1990. However, prior to leaving in 1990, I had already placed production for the `91 year.
MR. COCHRAN: I understand. So of your own personal knowledge, you can tell us about `89, `90 and `91, right?
MR. RUBIN: Yes.
MR. COCHRAN: And you told us these were fairly popular--this type of glove was fairly popular; is that correct?
MR. RUBIN: I did not say that.
MR. COCHRAN: Okay. You didn't say that?
MR. RUBIN: No.
MR. COCHRAN: All right. Were they? Maybe someone else said that. Were they fairly popular?
MR. RUBIN: The quantity that was manufactured in this glove was minuscule in the scheme of the amount of leather gloves that Aris produced.
MR. COCHRAN: Yes.
MR. RUBIN: This particular glove was a popular style within Bloomingdales only as an exclusive style.
MR. COCHRAN: All right.
MR. RUBIN: But in the scheme of things, it was very small.
MR. COCHRAN: Well, you're a big company. It was a big company at that time; is that right?
MR. RUBIN: It is a big company.
MR. COCHRAN: All right. I understand that. But we're talking now about this particular style, okay?
MR. RUBIN: Right.
MR. COCHRAN: Now, in that connection, how many of these types of gloves, the Aris light, did you order for the 1989, if you so ordered, for the Bloomingdale stores?
MR. RUBIN: I believe it was a thousand and eight dozen.
MR. COCHRAN: A thousand and eight dozen in 1989; is that correct?
MR. RUBIN: In the fall of `89 for utilization in 1990.
MR. COCHRAN: Yes. So how many dozen was that?
MR. RUBIN: A thousand and eight.
MR. COCHRAN: A thousand and eight dozen?
MR. RUBIN: Yes.
MR. COCHRAN: All right. And were all those gloves sold, a thousand and eight dozen, if you know?
MR. RUBIN: Definitely not.
MR. COCHRAN: All right. And the ones that weren't sold, what happened to them? Were they sent back to the factory? Did they come back the next year or what?
MR. RUBIN: Generally speaking, they're returned to the manufacturer, refurbished if necessary and held for shipment the following year.
MR. COCHRAN: In other words, you wouldn't throw them away at any rate, right?
MR. RUBIN: No.
MR. COCHRAN: So all--of the thousand and eight dozen that were ordered for 1990, those that weren't sold were more than likely returned in 1990; isn't that correct?
MR. RUBIN: Yes. But of the thousand and eight dozen that were ordered, if the return was excessive and the management team realized that they didn't need that amount of merchandise, they would reduce the order in February, March of 1990 to offset the amount that was returned, thus keeping the net available at approximately a thousand dozen.
MR. COCHRAN: All right. Well, let's talk about that. How many then were on original order by Bloomingdales of the Aris light for 1990?
MR. RUBIN: When I left at the end of July in 1990, there was approximately a thousand dozen on order.
MR. COCHRAN: About a thousand dozen?
MR. RUBIN: On order.
MR. COCHRAN: Did you ever indicate to anyone that--that you believe that the original order by Bloomingdales of the Aris light gloves was approximately 6,000 pairs? Did you ever indicate that?
MR. RUBIN: No.
MR. COCHRAN: If someone indicated that there may have been as many as 10- to 12,000 pairs of these Aris Isotoner gloves or Aris light gloves, would that be correct?
MR. RUBIN: It would be closer to 10 than six.
MR. COCHRAN: Okay. 10,000?
MR. RUBIN: Yes.
MR. COCHRAN: So then the--your best estimate is that the original order in--for 1990 would be close to 10,000 pairs?
MR. RUBIN: Yes.
MR. COCHRAN: You didn't hear the testimony of the lady who just preceded you, did you?
MR. RUBIN: No, I did not.
MR. COCHRAN: And you didn't watch it on television?
MR. RUBIN: No, I did not.
MR. COCHRAN: And so this 10,000 pairs of gloves, that would be all Aris light gloves?
MR. DARDEN: Objection. Misstates the testimony.
THE COURT: Overruled.
MR. COCHRAN: The 10,000 pairs of gloves. You can answer that.
MR. RUBIN: It's--it's one style. You want to know the total quantity sold to Bloomingdales in leather gloves?
MR. COCHRAN: Yes. I'm talking about one style so--right now.
MR. RUBIN: Approximately 10,000 pairs.
MR. COCHRAN: So that we're fixed--so that we're understanding each other, when you talk about the 10,000 pairs, you're talking about the Aris light, right?
MR. RUBIN: Yes.
MR. COCHRAN: Okay. And so what you're telling us is that there was something like 10,000 pairs of these gloves on order for the 1990 season as it were; is that right?
MR. RUBIN: Yes.
MR. COCHRAN: Of this particular style, right?
MR. RUBIN: Yes.
MR. COCHRAN: Now, of that 10,000 pairs--and of course, you had left the company at that point, but if they didn't sell all the 10,000 pairs that year in 1990, they would then return some of those, recycle some of those back for 1991 depending upon the demand of the order; isn't that right?
MR. RUBIN: Correct.
MR. COCHRAN: And then do you know how many were ordered for 1991, how many thousands of pairs?
MR. RUBIN: Before I left, I probably would have put anywhere between 5- and 600 dozen into production to get the production flowing assuming that approximately 25 to 30 percent of what was delivered in the fall of 1990 would be returned.
MR. COCHRAN: All right. So 5-, 600 dozen, how many would that be in pairs?
MR. RUBIN: 6,000 to 7200.
MR. COCHRAN: So 7200. So that would be--so a little bit less than in 1990. If 1990 was 10,000 pairs, then you think maybe 7200 in 1991?
MR. RUBIN: If they received--if they actually took in--after I left, if they actually took in all 10,000 pair, they probably would have sold 7- to 7500 of the 10.
MR. COCHRAN: Okay.
MR. RUBIN: Thus returning 2500 to 3,000, and then with the additional order that was placed before I left, it would come up--come up to the total available that they might require for the next year.
MR. RUBIN: All right. So that's how we keep getting back to the 10,000 pair--
MR. RUBIN: Right.
MR. COCHRAN: --is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: Is that a fair statement?
MR. RUBIN: Yes.
MR. COCHRAN: All right. And `89 was the first year. So in `89, how many did you order from the standpoint of pairs?
MR. RUBIN: It was less in `89 than it was in `90. It was probably totally available, about 7500 pair.
MR. COCHRAN: All right. So that we're clear then, so in 1989, which was the first year of this so-called Aris light, there was something like 75--was that the first year?
MR. RUBIN: No.
MR. COCHRAN: Was it the first year for Bloomingdales?
MR. RUBIN: No.
MR. COCHRAN: Okay. What was the first year of these Aris light gloves with the Brosser stitching were sold in the United States to Bloomingdales?
MR. RUBIN: I believe it was 1982 or -3.
MR. COCHRAN: And with this process we've been talking about, did it start back in `82?
MR. RUBIN: Yes.
MR. COCHRAN: All right. So then starting in 1982, `83, `84, `85 `86, `87, `88, `89 up to 1990, you had been making these gloves exclusively for Bloomingdales; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: And as I understand it, would I be correct in assuming that the number generally went up so that by 1989 or `90, you were in the range of 10,000 pairs of these gloves, the Aris light; is that right?
MR. RUBIN: Right.
MR. COCHRAN: And you think this continued on for `91 and `92 at least; is that correct?
MR. RUBIN: Well, actually what occurred was, there was a tremendous warming trend, and in 1990, the business went, you know, substantially backwards, and I think it has actually slowed up since then. The peak sale of this product was the winter of `89. But based upon that, that's how the 10,000 pair came up to be because after the success of `89, they bought more for 1990.
MR. COCHRAN: Sure. I understand that. So--but basically what we're talking about is the purchase of these gloves for up to 10,000 pairs of these Aris light gloves over a 10-year period basically, 1982 to 1992, right?
MR. RUBIN: Yes. The quantities were extremely small though during the early years.
MR. COCHRAN: All right. And when you say "Small," what did you start out with, an estimate of what you started out with in `82?
MR. RUBIN: A hundred dozen.
MR. COCHRAN: Hundred dozen?
MR. RUBIN: 1200 pairs.
MR. COCHRAN: And how many is that?
MR. RUBIN: 1200 pair.
MR. COCHRAN: 1200?
MR. RUBIN: Right.
MR. COCHRAN: Right. But--so from 1200 to 10,000 per year up--by the time you got to `90.
MR. RUBIN: That's correct.
MR. COCHRAN: Is that right, sir?
MR. RUBIN: That's correct.
THE COURT: Excuse me, counsel. Mr. Rubin, you're going to have to let Mr. Cochran finish asking you the question before you start to answer. Mr. Cochran, you need to finish letting him answer before you start your next question.
MR. COCHRAN: I will, your Honor.
THE COURT: We have one court reporter who can only hear one voice at a time, if you would.
MR. COCHRAN: Okay. Thank you, your Honor.
THE COURT: We've got all afternoon.
MR. COCHRAN: All right. Certainly.
THE COURT: Proceed.
MR. COCHRAN: Now, with regard to Bloomingdales, can you tell us, in December of 1990 or thereabouts, how many Bloomingdale stores were there in the United States?
MR. RUBIN: 13.
MR. COCHRAN: And these gloves were exclusive to Bloomingdales; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: And how many stores are there in New York in manhattan?
MR. RUBIN: In manhattan? One.
MR. COCHRAN: All right. And they come as far west as Chicago?
MR. RUBIN: Back in 1990, yes.
MR. COCHRAN: All right. So at that time, the time you left, you were furnishing 13 Bloomingdales stores of these Aris light gloves; is that right?
MR. RUBIN: That's right.
MR. COCHRAN: And would--the amounts we're talking about, ranging from 1200 pairs to 10,000 pairs, would that be for all of the stores?
MR. RUBIN: Yes.
MR. COCHRAN: All right. That would be for the Bloomingdale stores in the United States, all 13; is that right?
MR. RUBIN: That's right.
MR. COCHRAN: And they're sold throughout, right?
MR. RUBIN: That's correct.
MR. COCHRAN: And those that weren't sold in the 13 stores would then be returned or recycled and kind of blended in with the ordering for the very next year; is that right?
MR. RUBIN: That's correct.
MR. COCHRAN: And that lasted from 1982 to 1992?
MR. RUBIN: That's correct.
MR. COCHRAN: What was the wholesale for those particular items?
MR. RUBIN: $20.50.
MR. COCHRAN: $20.50? Did you ever indicate they were $18 to $19?
MR. RUBIN: Excuse me?
MR. COCHRAN: Did you ever indicate that they were 18 to $19 at some point in the past?
MR. RUBIN: At the beginning of the cycle in `82, `83, they may have been as low as 16, 16.50. But the cost of this particular leather and especially the fluctuation of cashmere drove the price up on a consistent basis, especially toward the end of the `80's.
MR. COCHRAN: So by the end of the `80's, your recollection was that they were wholesaling for like $20.50?
MR. RUBIN: That's correct.
MR. COCHRAN: And how much were they retailing for at that point?
MR. RUBIN: 55.
MR. COCHRAN: Per pair?
MR. RUBIN: Yes.
MR. COCHRAN: And the figure that you gave Mr. Darden of something like $20 per pair for men's gloves, these gloves were much higher than that, right?
MR. RUBIN: Yes.
MR. COCHRAN: Almost three times as much; is that right?
MR. RUBIN: Almost.
MR. COCHRAN: With regard to the gloves that you were shown and that you saw, we all saw during the break, there is no style number on those gloves that's visible; is that correct?
MR. RUBIN: Not on the outside.
MR. COCHRAN: And if you looked at the label, you couldn't see a 70263, could you?
MR. RUBIN: No. There's no identification on the labels.
MR. COCHRAN: Okay. Is there--is there a number someplace else on the glove?
MR. RUBIN: During the manufacturing cycle, there are three sets of numbers behind the lining on the back of the gloves during the actual manufacturing process. I don't know if those numbers still exist today in these gloves because of the age of the gloves. But originally, there were three sets of numbers inside, one being a size, two being a 3-digit number which indicated the individual who actually cut the gloves, and then another 2-digit number indicating the sequence in which they were made from the leather that was given to the cutter at a given point in time. But I don't know if those numbers exist in there right now.
MR. COCHRAN: All right. You've never seen--you haven't seen those numbers with regards to the gloves before you, have you?
MR. RUBIN: No.
MR. COCHRAN: And at no place has there ever been a lot number or style number like 70263 therein; is that correct? That was not part of the procedure, was it?
MR. RUBIN: No. It was not part of the procedure.
MR. COCHRAN: All right. Now, as I understand it, there are Aris Isotoner gloves all over the United States; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: And all over the world for that matter; isn't that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: All right. Are the--Bloomingdales is a store exclusive to the United States or are there--
MR. RUBIN: I believe their retail operations are. They may have some mail order internationally. I'm not a hundred percent sure.
MR. COCHRAN: So back from the 10-year period, `82 to `92, would it have been possible through Bloomingdales mail order catalog to order these particular gloves during that time frame?
MR. RUBIN: At some points in time, this particular product was in various Bloomingdales catalogs.
MR. COCHRAN: So you could be in France and order those; is that correct?
MR. RUBIN: If you were on the mailing list, it's a possibility.
MR. COCHRAN: Now, do you have any kind of a breakdown of the difference in colors? Let's assume that in 1990, you ordered 10,000 pairs of these Aris light gloves. Do you know how many different colors did you have at that time?
MR. RUBIN: At that time, I believe we had four colors; black, brown, gray and a medium brown.
MR. COCHRAN: And do you know the breakdown of the 10,000, how that was--how they were ordered?
MR. RUBIN: 60 percent plus would be black, approximately 30 percent or 28 percent would be brown and then the other colors would really be just 10 percent or so.
MR. COCHRAN: They would be much less; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: And would that remain fairly consistent over the 10-year period that you were involved with the company and at the time that these gloves were the same style?
MR. RUBIN: No. Actually the mix of black to brown gravitated dramatically, more toward black as we went farther into the `80's.
MR. COCHRAN: More toward black and away from brown?
MR. RUBIN: Yes.
MR. COCHRAN: Earlier had been brown more than black?
MR. RUBIN: No. It was never more, but at one time, it was 50/50.
MR. COCHRAN: All right. And that was based upon the sales trends; is that correct?
MR. RUBIN: Consumer demand.
MR. COCHRAN: Yeah. Sales trends, the way people purchased them; is that right?
MR. RUBIN: Yes.
MR. COCHRAN: Now, with regard to the gloves that you were shown by Mr. Darden a short time ago, in looking at those gloves, they appear similar to you; do they not?
MR. RUBIN: Yes, they do.
MR. COCHRAN: But you can't say they're the exact same gloves that were sold at the same time, can you?
MR. RUBIN: When I was looking at--when we looked at the gloves earlier--was the grain of the leather, the way these gloves were manufactured, just looking at them in this condition, they appear to be a pair that was cut out of approximately half of a skin, and that's what I was looking at. They appear to be a pair.
MR. COCHRAN: All right. But in looking at them, you can't tell us for sure they're from the same particular lot, can you? You can't say they're the same, can you?
MR. RUBIN: It's difficult.
MR. COCHRAN: All right. There's no individual characteristics that would allow you to make that particular, even though you can say they look similar; is that right?
MR. RUBIN: They do look similar. That's all I can say.
MR. COCHRAN: All right. I appreciate that. And to you, they appear in your color scheme--or what color is that glove? And do you have the left glove or the right glove?
MR. RUBIN: This is the right.
MR. COCHRAN: The right glove? What color is that right glove?
MR. RUBIN: This is brown.
MR. COCHRAN: All right. And there's no way to look at that particular glove before you now and you can't tell us I presume whether that particular glove was purchased in 1982, `83, `84 all the way up to `92, can you?
MR. RUBIN: I cannot determine the exact date of purchase.
MR. COCHRAN: All right. So in other words, what you can tell us is that that particular glove you believe is the style that was exclusive to Bloomingdales was or could have been purchased at any time between the time frame 1982 to 1992 when they changed the stitching, right?
MR. RUBIN: Correct.
MR. COCHRAN: Is that a fair statement?
MR. RUBIN: Yes, it is.
MR. COCHRAN: May I have just a second, your Honor?
THE COURT: Certainly.
(Brief pause.)
MR. COCHRAN: And starting in 1982, were these gloves made starting then in the Aris Philippines factory?
MR. RUBIN: Yes, they were.
MR. COCHRAN: And would it be correct then, assuming that for the 10-year period we've been talking about, from `82 to about `92, that all of the gloves, whatever numbers, from 1200 pairs to 10,000 pairs, would have all been made in the factory in the Philippines?
MR. RUBIN: I would only commit up until 1990 for myself.
MR. COCHRAN: Because you left?
MR. RUBIN: Yes.
MR. COCHRAN: But no reason to believe they went to some other factory after you left, is there?
MR. RUBIN: I'm not aware of any other factory that could make this product. But I wasn't there, so I can only commit up to 1990.
MR. COCHRAN: All right. But you can commit from `82 until 1990, the time you left, that all those gloves were made at the Aris Philippine factory; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: And the other styles that they made, there were other styles made for other parts of the world as I understand it; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: Did you ever talk to a customer by the name of Hering , H-E-R-I-N-G? Did you ever talk to him personally?
MR. RUBIN: Not personally.
MR. COCHRAN: Is that the customer whose style number is 70268?
MR. RUBIN: That's what documentation that I've seen indicates.
MR. COCHRAN: And that's the customer whose buyer you spoke with; is that correct?
MR. RUBIN: It was really the sales agent in England that--the style was developed for a sales agent, and then the sales agent I believe showed it to the customer and eventually ended up getting an order for that particular style number.
MR. COCHRAN: And the customer's name was Hering ?
MR. RUBIN: Yes.
MR. COCHRAN: Thank you.
MR. COCHRAN: I have nothing further at this time.
THE COURT: Mr. Darden.
MR. DARDEN: Just a little bit, your Honor.
REDIRECT EXAMINATION BY MR. DARDEN
MR. DARDEN: So the documentation you've seen, sir, indicates that 70268 was never sold in the United States?
MR. RUBIN: That's correct.
MR. DARDEN: Mr. Cochran asked you some questions about the percentage of gloves sold that would be black in color and those that would be brown in color as well as other colors. But in 1990, assuming you had 10,000 pairs of these gloves, what percentage of those gloves would be brown?
MR. RUBIN: 30 percent.
MR. DARDEN: And what percentage of the--of that 30 percent would be size extra large?
MR. RUBIN: Eight percent. No. I'm sorry. Eight percent of the total, not eight percent of the 30.
MR. DARDEN: Eight percent of the total number of gloves would be extra large?
MR. RUBIN: Right.
MR. DARDEN: Okay. Well, what percentage of the total would be extra large in size and brown in color?
MR. RUBIN: I'm not sure if I understand the question.
MR. DARDEN: Okay. Well, if you had 10,000 pairs of Aris Isotoner leather light gloves.
MR. RUBIN: On a 10,000-unit basis, there would be approximately 300 units in extra large, brown totally available.
MR. DARDEN: And of those 300 units, you would expect to receive back into your factory approximately 100 pair?
MR. RUBIN: It could be that high.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: And so in your view then, Mr. Rubin, approximately 200 pairs of brown extra large Aris Isotoner leather lights would have been sold during 1990?
MR. COCHRAN: Assumes a fact not in evidence, "Could be."
THE COURT: Rephrase the question.
MR. DARDEN: In your opinion, how many size extra large, brown in color, Aris Isotoner leather light gloves would have been sold by Bloomingdales during 1990?
MR. RUBIN: Between 200 and 240 pair.
MR. DARDEN: And did I hear you correctly? Did you testify that the lot sold to Bloomingdales during 1990 was the largest lot?
MR. RUBIN: Largest lot of this particular style?
MR. DARDEN: Yes. Yes.
MR. RUBIN: Within the mix of what Bloomingdales purchased, this was the largest lot.
MR. DARDEN: Okay. Well, how many did you sell to Bloomingdales during 1990?
MR. RUBIN: Of this particular style?
MR. DARDEN: Yes.
MR. RUBIN: When I left, what was on order to be shipped was approximately 12,000 pair. However, these orders were set up to be delivered on an ongoing basis starting at the end of July going through the middle of November. Based upon the actual performance of business during the October, November time frame, I am not a hundred percent sure that they took in all of the pairs that they committed to.
MR. DARDEN: Okay. At any event, the maximum number of brown extra larges that would have been sold during 1990 is 200 to 240, correct?
MR. RUBIN: That's correct.
MR. DARDEN: And in 1982, the first year that these gloves were manufactured apparently and sold to Bloomingdales, correct?
MR. RUBIN: That's correct.
MR. DARDEN: What was the maximum number of brown, extra large--well, strike that. How many pairs of brown extra large Aris leather lights would have been sold in 1992?
MR. RUBIN: There may have been 50 pair in brown, extra large.
MR. DARDEN: How about `93?
MR. RUBIN: Twice as much.
MR. DARDEN: I'm sorry. 83. Twice as much?
MR. RUBIN: Yes.
MR. DARDEN: About a hundred?
MR. RUBIN: Yeah.
MR. DARDEN: Okay. How many size extra large, brown in color, Aris leather light gloves would you say were sold through Bloomingdales in 1982?
MR. RUBIN: In 1982?
MR. DARDEN: From 1982 through 1990.
MR. RUBIN: I really would be speculating at this point. I'd have to actually start to calculate what the progression was and then factor in the consumer demand shifting from 50 percent black and brown and then shifting more toward black. If I had to guess in total--
MR. COCHRAN: I think he's answered the question.
THE COURT: Ask another question.
MR. DARDEN: Okay. But as the years went on, the color brown in size extra large became more rare; is that correct?
MR. RUBIN: Yes.
MR. DARDEN: Have you seen the sales receipt from Bloomingdales for a pair of Aris gloves?
MR. RUBIN: Yes.
MR. DARDEN: Your Honor, I've just been handed another exhibit. Can I confer with Mr. Cochran for a moment?
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. COCHRAN: May we approach, your Honor?
THE COURT: With the court reporter, please.
(The following proceedings were held at the bench:)
MR. COCHRAN: Your Honor, I wasn't clear what counsel was trying to do.
THE COURT: All right. Mr. Darden.
MR. DARDEN: Your Honor, these are Aris Isotoner gloves, similar make, exact same size as the ones now in front of the witness.
THE COURT: Yes.
MR. DARDEN: I would like to lay the foundation to show they are the exact same size, similar make and model so that perhaps we can have Mr. Simpson try them on at some point to determine whether or not the gloves found at the scene and at his home will fit him.
MR. COCHRAN: We object to this, your Honor. First of all, we've had no time to deal with this. At some point, if Mr. Simpson testifies and we want to have him try the gloves on in evidence, that is one thing. There's no foundation with regard to this. So that's why I asked to approach the bench. I don't think it's appropriate at this time with this witness under these circumstances. This is redirect and it's improper.
THE COURT: I did notice they were delivered to the courtroom during the course of the cross-examination. Are you asking to reopen with this?
MR. DARDEN: Yes, your Honor.
THE COURT: You understand there's no foundation for this yet.
MR. DARDEN: I understand that completely.
THE COURT: All right.
MR. COCHRAN: Your Honor, we have not had an opportunity to deal with this. I haven't seen this before. This is the first time we've seen this. I would suggest this is not the appropriate witness for this.
THE COURT: Why don't we quit moving the bag around here.
MR. DARDEN: This is the only witness that can lay the foundation. Excuse me. I'm talking on the record. This is the only witness that can lay the foundation I believe in terms of size and--
THE COURT: I understand.
MR. DARDEN: And he is going back to New York tomorrow.
MR. COCHRAN: Are these the same gloves? What's the offer of proof, your Honor?
THE COURT: All right. The Court has examined these particular gloves. They have a label on them that purports to say, "Aris leather lights, cashmere lined" and has the size "Extra large." The Court has examined the right-hand glove. It has a similar label indicating, "Aris, 100% cashmere consider lined, size extra large, made in Philippines." I think there's a sufficient offer of proof that these appear to be similar gloves. I'll overrule the objection.
MR. COCHRAN: The other question is, if he does that, is the Court going to allow them to have the Defendant try these gloves on?
THE COURT: I'm sorry?
MR. COCHRAN: Are you going to allow them to have the Defendant try these gloves on?
THE COURT: I think it would be more appropriate for him to try the other gloves on.
MR. COCHRAN: That was exactly my point. So--
THE COURT: I mean the real gloves that were found.
MS. CLARK: The only problem is, he has to wear latex gloves underneath because they're a bile hazard and they're going to alter the fit.
THE COURT: We'll take that up when we get there.
MR. COCHRAN: I object to them having him try these gloves on.
THE COURT: Let's proceed.
MR. COCHRAN: What's the year of these gloves?
THE COURT: We don't know yet.
MR. COCHRAN: Don't you want to know?
THE COURT: We'll find out.
MR. COCHRAN: In front of the jury. We can always do it outside.
THE COURT: Do you want a hearing on it?
MR. COCHRAN: I don't think they want to hear this. I think we should excuse the jurors for a minute to find that out.
THE COURT: Okay.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Ladies and gentlemen, I need to conduct some questioning outside your presence. So I ask you to step back in the jury room. It'll probably only take about 10 minutes.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Let the record reflect that all the jurors have withdrawn from the courtroom. Mr. Rubin is still on the witness stand. Mr. Darden, proceed.
MR. DARDEN: Your Honor, I have here in my hand what appears to be a pair of leather gloves. There is a tag attached. The tag reads, "Aris leathers by Isotoner, extra large, cashmere lined," selling price of $55 by Bloomingdales. May they be marked 372-C?
THE COURT: 372-C.
(Peo's 372-C for id = leather gloves)
Richard Rubin (402), called as a witness by the People, pursuant to evidence code section 402, having previously been sworn, testified as follows:
DIRECT EXAMINATION (402) BY MR. DARDEN
MR. DARDEN: Before I hand these gloves to the witness--showing you the gloves that have been marked 372-C, are those Aris Isotoner gloves?
MR. RUBIN: They're Aris gloves, but these are not Aris lights gloves that were like the ones we're talking about from 1982 until 1990.
MR. DARDEN: When were those gloves manufactured, if you know?
MR. RUBIN: These gloves?
MR. DARDEN: Yeah.
MR. RUBIN: Only because of what I've learned recently, I was given the impression that starting in 1992, they changed the actual sewing configuration to a different type of construction, but still use the same connotation that was in Aris lights glove.
MR. DARDEN: Are those gloves cashmere lined?
MR. RUBIN: Yes, they are.
MR. DARDEN: Looking at those gloves and the two gloves that you've seen here in court today, can you tell us whether or not they're the same size?
MR. RUBIN: Same size?
MR. DARDEN: Yes.
MR. RUBIN: They're tagged the same size.
MR. DARDEN: Okay. They appear to be the same size?
MR. RUBIN: They appear to be the same size. They were supposed to be the same size.
MR. DARDEN: Okay.
MR. RUBIN: If I had to speculate though--actually I wouldn't speculate. I could tell you that this particular pair would actually fit tighter than this pair (indicating).
MR. DARDEN: Okay.
MR. RUBIN: Because of the sewing construction.
MR. DARDEN: Are they both made of leather, that is the pair in your hand as well as the glove on the bench there?
MR. RUBIN: They're made from leather, but they're not the same leather by any means.
MR. DARDEN: Okay.
MR. DARDEN: One moment, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: You couldn't tell us whether or not those new gloves--well, strike that. Have you noticed Mr. Simpson's hands at all?
MR. RUBIN: I actually haven't.
MR. DARDEN: You can't tell us whether or not either of these three gloves will fit his hands?
MR. RUBIN: I would venture to say that almost every glove that was manufactured by Aris Philippines from size medium to extra large would get on his hand. Some might be tight, some might be loose, but they would get on his hand.
MR. DARDEN: Thank you.
MR. DARDEN: That's all.
MR. COCHRAN: I don't think I have to ask any questions at this hearing. Thank you for the hearing.
THE COURT: You're welcome.
MR. COCHRAN: I object.
THE COURT: Mr. Darden.
MR. DARDEN: Nothing further.
THE COURT: All right. Why don't you collect the new exemplars from Mr. Rubin, please. Mr. Darden, you want to collect the exemplar from 374-C--372 C. I take it you're not going to use that in front of the jury?
MR. DARDEN: Well, your Honor--
THE COURT: Probably not.
MR. DARDEN: Probably not.
THE COURT: All right. Let's have the jurors, please.
MR. DARDEN: Before the jury returns, however, we would like to have Mr. Simpson try on the original evidence items.
THE COURT: Mr. Cochran, any comment?
MR. COCHRAN: Well, the only problem is that I wouldn't want--he would have to have gloves on underneath--I mean try the gloves on without the rubber gloves, that he use the latex gloves we used. And I'd like to approach--we'd like to approach. We have one other item I would like to put on the record.
THE COURT: Sure. Don't go away, Mr. Rubin.
(The following proceedings were held at the bench:)
THE COURT: We're over at the sidebar.
MR. COCHRAN: With regard to this, I think that this is an inappropriate time for it. I think it's inappropriate at this point. My client has no objection basically, but the problem is, he doesn't want to do it with the TV cameras trained on him, all that sort of thing. I think that--I'm not sure how I want to phrase this objection. First of all, I don't want him to have to do it without having latex gloves on, and I think the evidence is such that I would like to ask more questions of this witness. This witness says he thinks anything from a medium to extra large is going to fit him. That will be helpful to us.
THE COURT: Well, it would. Clearly, you will be able to recross after Mr. Darden finishes redirecting, and you'll ask him that question now that you know what the answer is going to be.
MR. COCHRAN: I would ask if the Court insist that the camera be directed--he doesn't want this to seem like he's giving some kind of performance--
MR. DARDEN: I would just say that he was more than willing to walk over to the jury and show them his hand and show them his knees and everything else when it suits his purposes.
MR. COCHRAN: That's far different than somebody exhibiting injuries. They just got caught trying to bring some ringer gloves in here. I'll submit it, but the thing I want to indicate to the Court is that--I'll submit it to the Court. All I'm asking is with regard to this not being like some circus atmosphere. That's all I would point out.
MR. DARDEN: I did show them to counsel. I learned that from Mr. Bailey, the glove.
THE COURT: All right. The asking of a Defendant to don a piece of clothing or somehow to utilize some other piece of evidence is pretty clear. I don't know that I can restrict the camera.
MR. COCHRAN: Judge, I think you're asked to rethink things every day, Judge.
THE COURT: I know.
MR. COCHRAN: I just think--I'm just saying to you from a standpoint of--sense of, you know, what's right. Maybe we can ask Mr. Bancroft for a wide shot, not a tight shot.
MR. DARDEN: Why? I mean why now? It was okay before.
THE COURT: I don't--
MR. COCHRAN: Because we request it.
MR. DARDEN: This is a court of law, not Live at the Improv.
THE COURT: All right. I'm not going to concern myself with the camera at this point.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Let's proceed. All right. Let's have the jurors, please. And let me see Deputy Magnera, please.
(A conference was held between the Court and the Bailiff.)
THE COURT: All right. Deputy Magnera, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Mr. Rubin, you may be seated. All right. Thank you, ladies and gentlemen. The record should reflect we've been rejoined by all the members of our jury panel. Mr. Darden, do you have any further questions of Mr. Rubin?
MR. DARDEN: Just a few, your Honor.
Richard Rubin, called as a witness by the People, having previously been sworn, testified further as follows:
REDIRECT EXAMINATION (RESUMED) BY MR. DARDEN
MR. DARDEN: Mr. Rubin, you said that eight percent of the gloves sold of the extra large, brown in color, Aris leather lights would be?
MR. RUBIN: Eight percent of the actual brown. Out of the 12 pair per prepack, one pair would be extra large.
MR. DARDEN: And so how many in 1990 then brown extra larges were sold?
MR. RUBIN: 300 totally available and possibly sold 200 to 240 depending upon the conditions.
MR. DARDEN: Okay. Your Honor, at this time, the People would ask that Mr. Simpson step forward and try on the glove recovered at Bundy as well as the glove recovered at Rockingham.
THE COURT: All right. Do you want to do that?
MR. COCHRAN: No objection, your Honor.
THE COURT: All right. He can do that seated there. All right. And I think so the jury can see, I'll ask Mr. Simpson to stand. All right. Mr. Darden, which glove do you have?
MR. DARDEN: This is the Bundy glove, your Honor.
THE COURT: All right.
MR. DARDEN: And after Mr. Simpson tries on the gloves, I would ask that he be required to step back over to the jury and again show him his bare hands.
THE COURT: Well, we'll get to that in a second. All right. The record should reflect that, as is our practice with these gloves, Mr. Simpson will have a pair of latex gloves on while doing this.
MR. DARDEN: I'm handing Mr. Simpson the left glove, Rockingham.
THE COURT: That's People's 77?
(The Defendant complies.)
MR. DARDEN: Your Honor, apparently Mr. Simpson seems to be having a problem putting the glove on his hand.
MR. COCHRAN: Your Honor, I object to counsel's statements.
THE COURT: Sustained.
MR. COCHRAN: Thank you. Move to strike.
MR. DARDEN: I'd also like to hand Mr. Simpson the other glove. What exhibit number?
THE COURT: This is People's 164-A? Is that the right-hand glove?
MR. DARDEN: Yes, your Honor.
(The Defendant complies.)
THE COURT: All right. Deputy Jex, would you just take a step back, please. Thank you. All right. The record should reflect that Mr. Simpson has both gloves--
MR. DARDEN: May he show his hands in front of the jury so that they can see--
THE COURT: Yes.
MR. DARDEN: Mr. Simpson is indicating that his fingers aren't all the way into the gloves, your Honor.
THE COURT: All right. Thank you, counsel.
MR. DARDEN: Mr. Simpson told the jury that the gloves are too small.
THE COURT: All right.
MR. DARDEN: Your Honor, before Mr. Simpson goes back, can we ask him to replace the left glove onto his hand?
THE COURT: All right.
MR. DARDEN: Can we ask him to straighten his fingers and extend them into the glove as one normally might put a glove on?
THE COURT: Yes.
MR. COCHRAN: Your Honor, object to this statement by counsel.
(The Defendant complies.)
THE COURT: All right. He appears to have pulled the gloves on, counsel. All right. Would you show that to the jury, Mr. Simpson, in that manner?
(The Defendant complies.)
THE COURT: Thank you. Other hand, please.
(The Defendant complies.)
MR. DARDEN: Could we ask him to make a fist with his left hand with the gloves on, your Honor? Could we ask him to make a fist with his right hand while the gloves are on, your Honor?
(The Defendant complies.)
THE COURT: He is doing both.
MR. DARDEN: Could we ask him to grasp an object in his hand, a marker perhaps, your Honor?
THE COURT: All right. Mr. Simpson.
(The Defendant complies.)
MR. DARDEN: Would we ask him to grasp the marker in his hand like this, your Honor (indicating)?
MR. COCHRAN: Object to this, your Honor.
THE COURT: Yes. I agree.
MR. COCHRAN: Object to counsel--
MR. DARDEN: Could we ask him to completely grasp the marker in his hand?
THE COURT: Yes.
MR. DARDEN: Whether raised or not?
THE COURT: Yes.
(The Defendant complies.)
THE COURT: All right. Thank you, counsel.
MR. COCHRAN: Thank you.
MR. DARDEN: Thank you. No longer an issue of cross-contamination, your Honor. I have nothing further. Well, strike that.
THE COURT: Mr. Cochran.
MR. DARDEN: I'm sorry. Can we approach one moment before we--could we approach one moment?
THE COURT: Yes, with the court reporter.
(The following proceedings were held at the bench:)
MR. DARDEN: I needed to ask the witness whether the latex would alter the fit of the glove; but also, I want him to come back over and show his hands again to the jury.
MR. COCHRAN: We object, your Honor. Counsel--first of all, we agreed to do that without counsel making those statements over there. That's why I stayed `way back. We tried to object to that. So we've done what they've asked. We would object to anything else at this point. We never talked about anything else. I didn't want to object in front of the jury, but we've done everything you asked him to do. I would object to him doing anything else, your Honor.
MR. DARDEN: I want him to show his hands to the witness as well.
THE COURT: For what purpose?
MR. DARDEN: So he can tell us whether he expects that Mr. Simpson can place his hands into those gloves.
MR. COCHRAN: The best evidence is what happened. This witness had an opportunity to observe what he did in front of the jurors, and the Court indicated that he had to do what he did. He did it and I had no objection to that. That's totally improper, to have him showing his hands. The jurors are the ones who have to determine whether his hands go in there or not.
THE COURT: The jury saw what happened. They'll make the judgment. You can ask the witness about what impact latex gloves might have and you can ask him to step over to where Mr. Simpson is to look at his hands. You can ask him to do that.
MR. DARDEN: Can he walk through the well?
THE COURT: Yes. I have to break at a quarter to, and it's raining.
MR. COCHRAN: Judge, may I just ask for what purpose they want a follow-up question to ask him to look at his hands? I mean what's that--I mean, I don't understand that.
THE COURT: He is an expert witness in gloves. He can tell us what size hands those are. Could be extra, extra large. Who knows?
MR. COCHRAN: But he's been a businessman now for like 10 years.
THE COURT: He's a leather glove expert.
MR. COCHRAN: He was, but I'm not sure he is now.
THE COURT: Thank you.
(The following proceedings were held in open court:)
THE COURT: Mr. Darden, would you wrap it up?
MR. DARDEN: Your Honor, if it pleases the Court, could we have Mr. Rubin step down from the witness stand, walk through the well and have a look at Mr. Simpson's hands?
THE COURT: And this is for the purposes of the size, glove size?
MR. DARDEN: Yes.
THE COURT: Yes. Mr. Rubin, would you please do that.
MR. DARDEN: Will the Court ask Mr. Simpson to extend his hands?
THE COURT: Yes.
(The witness and Defendant comply.)
THE COURT: All right. The record should reflect that Mr. Rubin has examined both Mr. Simpson's left and right hands. Mr. Darden.
MR. DARDEN: Mr. Rubin, you sold thousands and thousands of leather gloves throughout the world, correct?
MR. RUBIN: That's correct.
MR. DARDEN: What size glove would you say would fit Mr. Simpson's hand?
MR. COCHRAN: I object to that.
THE COURT: Overruled.
MR. COCHRAN: I object to the form of the question.
THE COURT: Overruled. You can answer the question.
MR. RUBIN: In some styles, size large, in most styles, extra large.
MR. DARDEN: Should the gloves shown to you here in court today have fit Mr. Simpson's hand in your opinion?
MR. COCHRAN: Object to the form. Calls for speculation without further foundation.
THE COURT: Overruled. You can answer the question.
MR. RUBIN: At one point in time, those gloves would be actually I think large on Mr. Simpson's hand.
MR. DARDEN: So you would expect then that these gloves would have fit his hand today; is that correct?
MR. COCHRAN: I object to the form of that question. Calls for speculation.
THE COURT: Sustained.
MR. DARDEN: Well, the question is this. Would Mr. Simpson's hands fit into these gloves as they are today in your opinion?
MR. COCHRAN: I object to the form of that question. That calls for speculation. He saw the exhibit.
THE COURT: Sustained. Sustained.
MR. DARDEN: Should they be able to fit into these gloves?
MR. COCHRAN: I object to the form, should they. Object to that.
THE COURT: Overruled.
MR. RUBIN: His hands should be able to fit into that pair of gloves.
MR. DARDEN: Now, would you expect that the fact that he's wearing latex gloves here today inhibit--would that inhibit his ability to extend his hand through the glove?
MR. RUBIN: I personally have never put on latex gloves and tried on gloves. So I really couldn't say. But I would say that appears to be a factor because--
MR. COCHRAN: He's answered the question, your Honor.
MR. RUBIN: When he showed--
THE COURT: All right. That's fine.
MR. DARDEN: Can you give us--can you give the jury any explanation as to why Mr. Simpson couldn't fit his hand into the glove here today?
MR. COCHRAN: Your Honor, I object. Calls for speculation. Counsel--
THE COURT: Sustained.
MR. DARDEN: Did you observe the manner in which Mr. Simpson put the gloves on today?
MR. RUBIN: Yes, I did.
MR. DARDEN: And you've seen people put gloves on in the past?
MR. RUBIN: Yes, I have.
MR. DARDEN: Did he put the gloves on in a manner consistent with what you've seen other people--
MR. COCHRAN: I object to that. It's irrelevant and immaterial, your Honor. There's no foundation.
THE COURT: Sustained. The jury observed what happened.
MR. DARDEN: Anything unusual about the way Mr. Simpson put the gloves on based on your experience?
MR. COCHRAN: I object, your Honor.
THE COURT: Sustained.
MR. DARDEN: Could you tell whether or not he was intentionally holding his thumb in a certain position so that he couldn't put the gloves on?
MR. COCHRAN: Your Honor, objection. Object to that. It's argumentative.
THE COURT: Sustained. Sustained. Counsel, the jury--
MR. DARDEN: I have nothing further. I apologize.
THE COURT: All right. Mr. Cochran, anything else?
MR. COCHRAN: May I have just a second, your Honor?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: A few questions, your Honor. I'm mindful of the hour. I think we can finish.
RECROSS-EXAMINATION BY MR. COCHRAN
MR. COCHRAN: Mr. Rubin, does your company--did Aris glove lights make a size of glove called double XL?
MR. RUBIN: Not prior to 1990.
MR. COCHRAN: And since 1990, have they made a double XL?
MR. RUBIN: I understand they have.
MR. COCHRAN: And that's an extra, extra large; is that correct?
MR. RUBIN: That's correct.
MR. COCHRAN: Now, with regard to the sizes of gloves, these gloves that were made back between the period `82 to `92 that we talked about, were they made so that each extra large was the same size as the next extra large or is there some variation in sizes?
MR. RUBIN: The intent was for them to be exactly the same. The patterns that were utilized were exactly the same size. But each few square feet of leather does have its own characteristics as far as stretch ability.
MR. COCHRAN: So that some--one extra large might actually be smaller than another extra large. Is that a fair statement?
MR. RUBIN: That's correct.
MR. COCHRAN: And there is that variability in the lots as they turned out; is that correct?
MR. RUBIN: That is correct.
MR. COCHRAN: And you would expect that an extra, extra large would be larger than an extra large; is that correct?
MR. RUBIN: Yes.
MR. COCHRAN: All right.
MR. COCHRAN: Thank you very kindly, sir.
THE COURT: Mr. Darden.
MR. DARDEN: No, your Honor.
THE COURT: All right. Mr. Rubin, thank you very much, sir. You are excused. All right. Ladies and gentlemen, we are going to take our recess for the evening. Please remember all my admonitions to you; don't discuss this case amongst yourselves, don't form any opinions about the case, do not allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. tomorrow morning. All right.
(At 4:45 P.M., an adjournment was taken until, Friday, June 16, 1995, 9:00 A.M.)
Superior Court of the State of California for the County of Los Angeles
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Thursday, June 15, 1995
Volume 168 pages 32177 through 32448, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 168 pages 32177 - 32448
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Day date session page vol.
Thursday June 14, 1995 A.M. 32177 168 P.M. 32305 168
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
Sathyavagiswaran, Lakshmanan 168 (Resumed) 32180S 32290Bk 32320S
Vemich, Brenda 32325D 32343C 32369D 32375C 168 (Further) 32378D
Rubin, Richard 32384D 32390C 32414D 32375C 168 (Further) 32378D (Resumed) 32434D 32447C
Rubin, Richard (402) 32425D 168
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Sathyavagiswaran, Lakshmanan 168 (Resumed) 32180S 32290Bk 32320S
Rubin, Richard 32384D 32390C 32414D 32375C 168 (Further) 32378D (Resumed) 32434D 32447C
Rubin, Richard (402) 32425D 168
Vemich, Brenda 32325D 32343C 32369D 32375C 168 (Further) 32378D
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
85-A - Document 32252 168 copy of California driver's license of Ronald Goldman
372-A - 1-page document 32336 168 entitled "Bloomingdales glove purchase"
372-B - 1-page document 32336 168 entitled "Bloomingdales glove purchase" (Microfiche copy)
372-C - Leather gloves 32424 168
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1194-A thru 1194-J - 32277 168 photographs depicting the stomach contents retrieved from victim Ronald Goldman
1195 - Documents 32315 168 consisting of a 5-page letter dated June 2, 1993, from the law offices of Charles E. Linder, the autopsy records of Ronald Gay, the autopsy records of Linda Phillips, and the disposition report by Deputy District Attorney Robert Grace
1196 - 1-page document 32330 168 entitled "Homicide investigation"