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. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Bailey. The People are represented by Miss Clark and Mr. Darden. The jury is not present. Counsel, what is our status at this point?


THE COURT: Good morning, Mr. Cochran.

MR. COCHRAN: Good morning, your Honor. Your Honor, you will recall that yesterday after the jury had been recessed for the day, we had to ask your Honor to order Mr. Deedrick, the FBI agent, to turn over this notebook, and we now know why he didn't want to turn over that notebook because contained in that notebook is a five-page single-spaced report which makes the discovery violations that we talked about yesterday seem like child's play. And given that, we want--I would ask the Court to allow us about ten or fifteen minutes now to mobilize our discussion, and we just uncovered some additional things we wanted to bring to the Court's attention. And we would like to have until about 9:15 and come back and argue these matters to the Court as to the appropriate remedies.

THE COURT: Would you tell me the nature of this report that you found?

MR. COCHRAN: We can give your Honor a copy of it. Here, let me give him that. The nature of this report is entitled "The search for the source--carpet fibers found on the leather glove and the knit hat in the O.J. Simpson case." It was inside that book that you ordered him to turn over that we had so much trouble getting. There is a litany of events that took place before we got it. They gave us a little single-spaced first. This agent was questioned. He kept putting off and not answering. It was only after you made the order and then he wanted to talk with you, as you recall, when you gave him the order, in which Miss Clark concurred in, and it was only after that we discovered this, but we found even additional things that we are now aware of this morning we did not know about. We just need a little bit of time to discuss with our client the appropriate way to address this and we have--I am ready to argue except I need to discuss it with my co-counsel and with the Defendant and then we may proceed. In the meantime, I have no objection, I will be glad to give the Court a copy of this report.

THE COURT: All right. Any comment from the People before--with regard to the request for some additional time this morning to confer amongst each other?

MS. CLARK: We have no objection. But just so the Court will know, what Mr. Cochran is referring to is simply that Mr. Deedrick called--what do you call them--the automotive industry's carpet manufacturers to ask them about the production of the carpet fibers in question and what cars they were placed in, and that is what we are talking about, which is a source available to the Defense as well. He made the call. That is the report they are referring to.

THE COURT: Uh-huh.

MR. COCHRAN: If I might, your Honor, that is a nice spin, but I would like for you to see the report and I would like for you to hear arguments on this. This is not what this report is about. It is discoverable and we did not get it. We only got it after you made that order, questioning about it at this stage of the trial and it is very, very disturbing. So I would like to give to it your Honor's clerk.

THE COURT: All right. How long do you need to confer?

MR. COCHRAN: About fifteen minutes, your Honor.

THE COURT: Okay. We'll take 15.


THE COURT: Back on the record in the Simpson matter. All parties are again present. Mr. Cochran.

MR. COCHRAN: Thank you very much. First of all, thank you, your Honor, for the recess. It was necessary for us to be able to talk and discuss this matter. We certainly appreciate the Court's indulgence in that regard. Your Honor, I stand before you today in a very, very serious, perhaps the most egregious, outrageous thing that has happened in this trial thus far.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Yes, your Honor. I was going to ask at the outset, this argument will be rather lengthy, and I would ask that Mr. Deedrick be excused for reasons I think will become obvious during the course of the argument.

THE COURT: I'm not going to excuse him at this point. This is a discovery matter that has to do with when things were done.

MR. COCHRAN: If the Court feels at some time appropriate, then I hope will Court that discretion.

THE COURT: All right.

MR. COCHRAN: The Court will recall that yesterday you recessed early because of what was a serious discovery violation in which the Court in your own words indicated that the arguments of the Prosecutor were specious with regard to whether certain evidence was evidence or exhibits. And you indicated, quite frankly, they could do without that. And so after having done that in an effort to move this case along--and I think the Court is aware that certainly from our standpoint we have indicated we would like to get this case to the jury as soon as possible--we made an effort or at least started to make an effort. Your Honor made it clear to all of us that Mr. Deedrick was to remain, we would have access to look at the boards and to talk to Mr. Deedrick. The Prosecutors didn't apparently understand that. You had to come back out and ask them to leave. We were delayed by that. Finally you asked them to leave, Cheri Lewis and Miss Clark and the others, and they did finally leave. We then started to talk with Mr. Deedrick. Messers. Blasier and Bailey--I had a brief encounter with him--and after a few questions from Mr. Blasier, this agent, this FBI agent, handed us a one-page report which is supposedly a summary of what he had. He wrote this out and handed this to us. And this becomes really important, because this was part of the disguise, part of the guile, if you will, of this agent in trying to throw us off. This was handed to me actually, and I then handed it to Blasier, and Blasier, however, being the lawyer that he is, continued to ask reports that this man may have written and this booklet that he was carrying. I walked over at some point and we talked about the booklet and I then felt the need to call your Honor out a second time, if you recall, because there was a question, he wanted to talk with you and I said we don't do that in court, you don't just talk to the Judge, the Judge talks to us. And I asked you to come out and then you made an order, and as I said before, Miss Clark concurred in that, that he turn that book over to us.

THE COURT: Well, we summoned Miss Clark at that point.

MR. COCHRAN: We summoned Miss Clark down and then at some point when she sat and talked with him, your Honor made the order and I believe she did concur in that order at that point. The book--

THE COURT: That was to make available to you the contents of the notebook that the agent had--

MR. COCHRAN: That's correct.

THE COURT: --here in court. All right.

MR. COCHRAN: We have been trying to get that and we had to have your intercession. We then got the notebook. And at that point it became clear exactly why he had been so reluctant to provide that notebook to us. Now, you have now been provided a copy of this five-page single-spaced report entitled "The search for the source--carpet fibers found on the leather glove and the knit hat in the O.J. Simpson case." Now, your Honor, yesterday you talked about sanctions and appropriate sanctions, and yesterday my learned colleagues argued to you that preclusion of certain of the photographs was certainly appropriate, and I will address that more than as we talk about it. However, this more egregious discovery violation that has now surfaced we think requires even harsher sanctions. This Prosecution's expert, FBI agent Deedrick, prepared a written report from this case and this report basically summarizes his so-called rareness of the alleged beige fiber found in Bronco vehicles. And I would like to quote from a wise Judge on this very issue, page 29129: "If it comes to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction. That was an order that I made early this year." Now, your Honor, that might sound familiar because those words came from your Honor's mouth, from your Honor's lips, and you said on it a number of occasions.

THE COURT: Standing right there.

MR. COCHRAN: And you have said it more than once and you said it in response to Mr. Rock Harmon's ranting about our supposed experts and whether they should be entitled to reports. You made it very, very clear that preclusion was the appropriate sanction that anyone should expect. Now, the Prosecutors heard that, we heard it and in Cheri Lewis' latest brief she quotes your remarks also. So your Honor, they knew what the rules were. It became very, very clear. And for Miss Clark to stand here yesterday and to say to you I didn't know, it must have been in my office or some other place, Miss Clark has not had a witness for two months, it seems, and she has had plenty of time. This is a fine lawyer who knows what she is doing. She is running this case. She is the leader, make no mistake, the leader on their side. She knows what's going on. They are planning, they are ending this case with this evidence. And for them to come up with this, I think you can agree with this, is absolutely outrageous and totally egregious. So I wanted to start off with letting your Honor hear those words which I think are very wise words and are very appropriate and I think they probably lead us to the solution to this problem right off. So now in this case, not only was a report prepared by this witness, and then he attempted to avoid disclosure and to conceal its existence. We learned of the report only when you interceded and we interceded and we were allowed to photocopy the entire loose-leaf binder material. What does this discovery consist of? I won't bore you in detail, but it consists of a five-page single-spaced report which I have given you the title of. This report contains extensive figures about numbers. And you may say, well, Mr. Cochran, you come have done this, you could have gotten this, and we are not sleeping at the switch, your Honor. We tried. Let me direct you to the bottom of the page 2 of this report to these words, the last paragraph: "On January 31, 1995, Julie Shaw, legal representative for Dupont, advised that all production information of type 1405 fiber is proprietary." And I can tell you further--and if you want to take testimony regarding this, we have an investigator who was given disinformation by the Masland company, disinformation. They didn't give us the information, even though we tried to seek it just in a general sense. The FBI could get information; we couldn't. They knew they had this and I wouldn't be surprised if Masland didn't go along with what the FBI had already told them to do, not to give us anything, so we couldn't have gotten it. So I want to make that clear right at the outset, your Honor. So this report goes into a number of things, total number of cars, carpets, square yardage and that sort of thing. And in addition, your Honor, there are 50 additional pages of supporting documents on his research into this area. We have not given you, I don't think, a copy of the entire notebook, and perhaps we should do that before you are asked to rule on this matter. This includes information from many, many different sources. And just again to briefly summarize that the conversation that Deedrick had had with Blasier, so you get an idea of the concealment and the guile that was involved here, Blasier first asked him where he had obtained the information about the carpet. He mentioned Ford and Masland. He asked him if he had any written information. And he said he did, although he did not go into detail. He asked him if we could have what we had obtained. And he said possibly. A few minutes later he gave us then the one-page report which I'm going to ask to have marked as an exhibit and give you a copy of it, whatever our next exhibit is, this one-page handwritten outline providing the rough figures, et cetera. Blasier then asked him if this was all he had and he wouldn't answer the question directly, your Honor. He kept saying this was the information. Blasier kept pressing him. He finally admitted there were source documents and that the one page he had given me was not the source material. Blasier then asked him what he had. He reluctantly showed Blasier some letters that were in this binder; however, he never showed this report. Talked about it being his report or his research. Talked about starting this research last year, your Honor, and that it was completed several months ago. Clearly discoverable, your Honor. We should have had this. And he goes on and on and he did not turn this over, your Honor, until you ordered him to do so. "Preclusion then it seems to me," citing this learned Judge, "Is the only reasonable remedy. Preclusion of the witness entirely or preclusion of at least any testimony concerning commonness or rareness of the Bronco fiber." You talk about prejudice, your Honor. Consider this. You saw the cross-examination of Bob Blasier. Thoughtful, to the point, concise. He asked questions at the end, your Honor. The questions he asked dealt with, if you recall, the commonness or rarity of carpet fiber and whether or not police cars had been checked. If this report had been discovered as it had been, he wouldn't have asked those kind of questions, we would have had this fiber. But that is the prejudice. You can't unring that bell. He asked those questions because they hid this. And when you talked about prejudice, you can't unring that bell, if the Court pleases, so we think that we have been severely prejudiced, and "We" meaning O.J. Simpson who is here trying to get a fair trial if they are then allowed to present testimony concerning this issue. We will not ask any questions on this topic during our part of the examination, if and when this man testifies, if you don't preclude him totally, and we think they must also be precluded from doing the same. The elimination photographs, the elimination subject photographs, your Honor, we are asking also they be precluded from using the exemplar hair boards and their two blue black fiber boards. Prejudice--it is clear from the photos that the reference hairs of Mr. Simpson, within their reference hairs there is considerable variation, your Honor, within each person. Hair comparisons are never done on the basis of photographs and never on the basis of a small portion of a single hair. Had we known that they had intended to do this, had they complied with your Honor's rules, had they complied with the rules of the laws of the State of California, we would have handled this much differently. We would have had or made additional photographs, your Honor, of the elimination subjects to show the great variation in hair and point out that some of the hairs of the so-called eliminated subjects, at least photographically, appear to be similar. Re the photographs of the blue black fibers. Had we known the Prosecution prepared photos, we would have compared them to the slides of the fibers to make sure they were being presented in a way that was not misleading, since your Honor is aware that photographs can be manipulated easily to make things which are dissimilar appear similar. We would have done things far, far differently at a time when they have announced to the world that they have this wonderful compelling case and they are about to rest. At the very end of their case, they do this, your Honor. And so we come back to the law, your Honor.

Miss Clark said something very interesting, it seemed to me, in our little brief discussion of this motion. She said, well, it was just his report, as though that didn't make it discoverable. Well, let's look and see what the law says on that, your Honor. 1054--and this Court is very aware of that, you have talked about it many, many times--deals with 1054.1, information to be disclosed by the Prosecution. Let me skip down because this Court knows this by rote, I'm sure, but let me just refresh everyone's recollection, 1054.1(F): "Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the Prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments or comparisons which the Prosecutor intends to offer in evidence at the trial."

Now, your Honor, all we ever asked for during the course of this trial is a level playing field. We ask they be treated just like we have been treated, and I'm sure your Honor will do that. But in addition to that, we now have additional information that we hope to have in Court today, sent from back east where this may not have been the first time that this particular agent has done this. We expect to have information by the end of the day that there was a case in Fairfax, Virginia, in 1991, where this same surprise tactic was tried by this agent and the Prosecution, and certainly the information we have is one of the reasons that that testimony was precluded was because again of a discovery violation and the unfair attempt to do this to the Defense. Now, we hope to have that today, along with still another case in Pennsylvania we expect to have today. Now, the Court may ask what about this whole thing with the FBI and the Prosecution? Well, I need point out to you only that Mr. Bodziak came in here and testified, an honorable witness who came in and said I can say this and no more. He didn't become an advocate for the Prosecution. He wasn't trying to hide things. In fact, in the course of the Prosecution turning over all those documents, we asked the appropriate questions. That is what discovery is about, and in doing that, we are prepared to deal with that. There was no delay, they didn't hide anything back. And it pointed out, your Honor,

That Mr. Goldberg who I think had Mr. Bodziak, he understood what the obligation was, he works under Marcia Clark, so certainly she understood. They complied with it with Bodziak and the FBI. Things went smoothly. There was no attempt to deceive and we went right through it, your Honor. So they can't come and claim they didn't understand what the deal was. But it is clear, your Honor, that the reason we weren't given these photographs and things because if we were given the photographs of the fibers, it would have piqued our interest. We would have asked questions about this question of the fibers and their supposed rareness or uncommonness. So this was calculated when they did this. When this agent sat here in Court yesterday and said those photographs and those boards were prepared sometime ago--these reports were done in April or May, several months ago--that is no excuse for the Prosecution, your Honor.

And I'm real sensitive about being the so-called head of a team where you take responsibility like a human being, without gender. And so I remember in this very Court a time when--a time before I was even as lead counsel, we were held responsible for something we never even knew about or ever saw. As the Court said, we knew or should have known was the test you gave us. And that test applies in the only to the Defense; it applies to the Prosecution. And so in this instance, we also last night had occasion, Mr. Neufeld had occasion to speak with Mr. Scholberg. Mr. Scholberg indicated that--and they went through the photographs. Of the photographs the District Attorney indicated were turned over by Mr. Deedrick to Mr. Scholberg--and by the way, they worked together. Scholberg was apparently Deedrick's boss at some point. Mr. Scholberg never turned those over to us. He thought that those photographs were for him. We never got them. We were not complaining about that because they were given to him, but he now says, and Mr. Neufeld will correct me if we are wrong, but there are at least 13 photographs that he has never seen, he never got, so a further violation. Is that right?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: 13 that are on the board that he never got. He never gave us any of them, but we won't complain about that. But there was a previous relation between this agent and Mr. Scholberg, and so he is prepared to so indicate that based upon the conversation last night. I have already indicated to the Court that with regard to our investigation this Masland corporation was not forthcoming, they did not give us information. In fact, it seems they gave us disinformation, information that is proprietary, generally, information the FBI would have that we could not get, and it is information, your Honor, that is prejudicial to Mr. Simpson. And this is all--make no mistake about it--this is about Mr. Simpson. This is about whether Mr. Simpson can receive a fair trial. This is about a trial that started on September 26th, your Honor. And you have gone out of your way to try give us a fair trial and to have this occur when we know we are coming to the end, when you have made it abundantly clear you don't want delays, that you want to move this on, that when you warned all of us there would be preclusion if we don't comply with the laws. And we have seen the sanctimonious pious posturing by the Prosecution so many times in this case. Now we find that the most egregious violation of all calculated comes forward on a day when our jury is sitting back there waiting and you have told them this case is going to be over and the case whimpers to a conclusion we have got to wait even now further because, your Honor, we cannot just sit here and accept we haven't received certain photographs. We isn't sit here and accept what is going on, this report we never got. What are we to do? We don't want to delay the proceedings. So what do you do to keep that from happening? In the spirit of what you say, you preclude these things. That is the only test. Even you said yesterday how tough it was as you sat there trying to think about how do I deal with this? And you oftentimes say we never make it easy on you. Well, this time it is not us, it is them that haven't made it easy on you. And you know what, Judge? You never asked for a rose garden when you took this job. This is a tough job and you are equal to the task and you want to be equal in the way you've dealt with it.

We felt the sting of your sanctions. We dealt with them like human beings like we should. The Prosecution has to do the same. They can't stand up here and give you a lot of mealy-mouthed explanations about yesterday, well, it is an exhibit, I'm not going to use this. I don't know what this is. That doesn't fly. You've got to end stand up ultimately and I call upon them now to stand up and say that they are wrong, they made a mistake, they are caught and under what you've told us preclusion is the only appropriate remedy. Otherwise, your Honor, how are we going to recover? How are we going to deal with this if you don't do that? Continuance isn't going to help. We don't want a continuance. Well, how long will it take us to get stuff and to get up to speed on things we should have had three months ago? It is totally, totally unfair and--

THE COURT: Mr. Cochran, which of these 13 photographs were not received by the Prosecution?

MR. COCHRAN: I know--

THE COURT: By the Defense?

MR. COCHRAN: I know we have a one-lawyer speaking rule. I am not finished yet. Can Mr. Neufeld answer that?

THE COURT: When you are concluded, yes.

MR. COCHRAN: May I get some water, your Honor?

THE COURT: Certainly.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: When I have concluded, your Honor, Mr. Neufeld will stand before and tell you that the photographs we have never seen and Mr. Scholberg never got and none of these reports we have never seen anyway. With regard to the so-called elimination photographs, your Honor, in just looking at those photographs, it has become clear to us--we ask your Honor to look at one of these photographs. This--

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: With regard to, as I said, the elimination photographs, we have--I have indicated to you that there are that there are great variations between a single individual and a single individual's hair strand. And so we need additional time to look at that, to prepare for cross-examination, but if the Court precludes that, that doesn't become a real problem for us. But further, your Honor, and I want to show this to your Honor, and I will show it to counsel first, in getting copies of these photographs of alleged hair strands, this agent or someone has taken what was K, a known hair, and made it a Q, so you will see Q7, which I think was O.J. Simpson and he has made it Q8A so that--Q--K7, I'm sorry, K7 and made it Q8A, looking at the photograph, and I will pass this up as your Honor can see this. And I think, your Honor, that again this points out the kind of things that they are seeking to do. It occurs to me that as I said before, the Prosecution understands their duty. I was reminded by one of my colleagues that when I said they made a mistake, this is more than a mistake. This was calculated. This was intentional. This was a tactical decision to try to gain an advantage at the very end. This was because their case was going poorly. This was because they thought they were losing. They had to string to try to pull something, but it just won't work, because there is something about truth, something about honesty that will be revealed. And that is exactly what happened in this particular case when you came out and ordered that report and allowed us to see this. So I'm going to ask you to look at those photographs. I'm going to ask you to look at the one-page we were given, and it is just part of the deception that we were given. And finally, your Honor, all I'm going to ask you to do--because Mr. Simpson can't address on you this issue--I'm going to ask you to do what is right and what is fair under these circumstances. We want to go ahead with this case and finish this case. This jury deserves nothing less. It is not their problem. It is the Prosecution's problem when they intentionally do this, your Honor, and they have to be held accountable. And the way you hold them accountable is to preclude this witness or at a minimum preclude those things where they violated discovery laws in the State of California. And there is no other remedy otherwise. Nothing else helps us because you don't want to wait two or three months for us some get up to speed where we would have been, do you? Would you now please hear from Mr. Neufeld, your Honor.

THE COURT: Mr. Neufeld, what I'm specifically interested in, in which of these 13 photographs were not received?

MR. NEUFELD: Yes. Just to sort of explain to you the source of the information, I spoke to Mr. Scholberg last night and he did say that he had received some photographs from Mr. Deedrick and I asked Mr. Deedrick--

THE COURT: Where is Mr. Scholberg located?

MR. NEUFELD: He is in Virginia. He had been the head of the hair and trace unit at the Federal Bureau of Investigation up until the late eighties when he retired. And I asked him to please read off the Q's and K's on every photograph that he had. He did that. I then gave the list to Chuck Morton this morning and asked him to compare that list to all the Q's and K's on the evidence boards that have been broad into Court and to give me a list of all items--all items that appear on the boards that weren't on the list from Myron Scholberg and they are as follows: K53--

THE COURT: Which board are we talking about?

MR. NEUFELD: I don't have it by board. Mr. Morton simply wrote out the list of K's and Q's. During the recess I can actually do that, your Honor, but I'm just giving to give you the actual--


MR. NEUFELD: K54, Q7A, Q3, Q1, Q3B, Q27, K19, Q7C, Q8B2, K18, K47 and K17. Your Honor, the only other--the only other just fact that I wanted to present to the Court, just for clarification, the problem with these photographs that we received last night is that because someone changed the description, what once was thought to be a standard hair reference hair from Mr. Simpson has now become allegedly the photograph of some evidence of an unknown hair in this case, we would have to go back, no. 1, to check whether or not on the negatives or the contact strips of these photographs to know if in fact it is a k or it is a Q. Obviously the person who made this description on these photographs wasn't sure and changed his mind. Also, we don't know whether or not these photographs on the board have had their descriptions changed as well or whether other photographs on the board have had their identifications changed as well because they are glued to the board. We would need to see the backs of those photographs to see on how many other occasions the Prosecution did that with these photographs and then we would have to go back and look at the negatives to see--as well as any contemporaneous notes that Mr. Deedrick made when these photographs were taken--to confirm that it is a q as opposed to a k or a k as opposed to a Q, because as the Court can readily see, unless you have some kind of note taking, it is easy to confuse them. There is nothing so unusual about a photograph like this that one will readily know, oh, it is a k as opposed to a Q, so these photographs simply illustrate that problem to the Court.

THE COURT: All right. For the record, do you want to identify the markings on those photographs?

MR. NEUFELD: Yes, your Honor. First is a photograph with a number on the back which says "17170 to 17179." It says on the back "40808026." Originally it said "K7," and the "K7" is crossed out and written above it is "Q8A." The second photograph, the numbering is 17--and there is a cross-out on the number, your Honor, but it looks like "17240 to 17249," but those numbers themselves have been crossed out and written over. And it then says "40808026." Once again there is a "K7" which has been crossed out and written over the "K7" is "Q8A," as in Albert.

THE COURT: Thank you.

MR. NEUFELD: Thank you.

THE COURT: Miss Clark. I'm concerned about two things: The rareness report and I'm concerned about the 13 photographs.

MS. CLARK: I only counted 11, your Honor, but--

THE COURT: I counted 13.

MS. CLARK: With respect to--let me first start out with the report then. First of all, you know, Mr. Cochran has argued to this Court in bad faith. He is very well aware of the fact that the Prosecution did not know about this report until it came to the attention at the same time that it did for the Defense, at which point I readily agreed it should be turned over. I had never seen it. I did not direct that it be prepared, I did not know the research was going on. I found out about the report last night and immediately turned it over. That is a far cry from the egregious and willful violations perpetrated on us by the Defense throughout this case, hiding witnesses, hiding reports. And what is very important to point out, Mr. Cochran read your words, but he obviously did not understand them. The words that he read stated that conclusions that are reached by expert witnesses must be turned over. Conclusions of this witness were indeed turned over. And this Court also stated that if instructions were given not to prepare reports, preclusion would be the remedy.

At no time has anyone on my team ever instructed a witness not to prepare a report, ever. Quite the contrary. Every witness, if we knew about anything ongoing, was instructed to prepare a report for immediate production. This research that was conducted by agent Deedrick was done for his own purposes. Yes, tangentially, yes, this case triggered that, but this is something that is ongoing by all of the agents at the FBI. They don't just sit behind a microscope. When they see a fiber they investigate the background. Now, what is important here is that obviously the reports turned over to counsel indicated very clearly what his conclusions were, that he identified the Bronco carpet fibers as being the source of the fibers found on the Rockingham glove and on the knit cap and he gave enough information for them to go forward and contact Masland. Obviously then the conclusions and opinions of the witness were turned over in an adequate form to allow the Defense to do further inquiry. That is the point of discovery, so that they are informed so that they can do their own investigation.

Now, Mr. Cochran complains only today of the fact that months ago his research went nowhere, that Masland was stonewalling, that they weren't being helpful. On previous occasions when they have had trouble with a witness or with some agency getting information from them, they have not been shy about asking for our assistance, for the Court's assistance. And where is the subpoena that they could have issued on Masland for this information? Where is the request to the Court for assistance to gain some help in getting the information from Masland? They obviously knew where to go to get it. They obviously made these phone calls. They got some information from them. Why was no one told that they were having difficulty? They could have even done it ex parte with the Court and never chose to do so. And now they are complaining that their own failure has caught them off guard. They had the information to go forward and do the research. They did a limited amount, stopped and decided it wasn't worth it and it wasn't important to them. Agent Deedrick did. He made the phone calls. Now, the problem with their position is that it is specious. They have the conclusions, they have his opinions, that is what the Court properly indicated we had to turn over. Now the cases that counsel is relying on indicate that we are required to turn over the reports of witnesses, their opinions and their conclusions, and that is what we did, and that is what agent Deedrick included in his reports. The report that is in front of this Court now indicates only the information obtained from Masland pursuant to routine telephone inquiry that is conducted by the FBI whenever they find questioned fibers of an unknown source. And that is what he did. So what that is, is inquiry that supported the ultimate conclusion and opinion that the Defense has had for months. We didn't delay in turning over agent Deedrick's reports and notes, all of them. They have had them. Moreover, the complaint and the hue and cry over these photographs is--is ludicrous. They've had this evidence not once, not twice, but three and I think possibly four times in their custody with multiple experts examining all of the evidence. Could they have taken photographs? Absolutely. On any of those occasions they could have.

And what precludes them from doing so now? Nothing. Nothing. They are saying that that they are very concerned about the photographs being representative. Fine. You know you have taken the evidence four other times. You know, they didn't know what to do with it then they didn't know how to take photographs? Now that they have an idea of how to do it from agent Deedrick maybe they can tell their experts to do it. Certainly the Court will not hesitate to let them have the evidence again, but it is not a question of them not knowing what was here, not knowing what the conclusions were, not having an opportunity to have every expert they can get their hands on examine them stuff and come to his own conclusion. They have been denied nothing. There has never been a Defendant in the history of this state, I warrant, that has had everybody bend over backwards for him the way this one has. We have shut down laboratories, we have sent evidence all over the country, multiple times. We have allowed Defense experts into our laboratories, multiple times. We have dug up records going back God knows how long from other cases for this Defendant on multiple occasions, reams and reams and reams of discovery. And they don't get some photographs of evidence that they have had in their control and possession on four separate occasions and they are complaining? Go take photographs. Fine. This is nothing about a graphic depiction of what was seen under the microscope by our expert and by their multiple experts. They want to take pictures of their own, they are entitled to do so. Do I regret that the photographs they explained of were not turned over? Yes. We have nothing to hide. There is no reason for them not to have seen them other than that it was an oversight. And though Mr. Cochran waxes eloquent about how I should be taking responsibility for the failure, to turn those over, and I do, I have never heard Mr. Cochran do so for the Defense, never in a warrant, not once. It is everybody's else's fault and we didn't know and all that. I'm telling the Court I take responsibility. I do. I do. I wish it had been turned over. Is it all this egregious? No, it is not. No, it is not. They have had the conclusion, they have had all the opinions, they have had all the reports that are pertinent that are discoverable under the statute. They wanted the underlying research done by Mr. Deedrick, fine, now they have it. Had I known of it earlier they would have had it earlier. They got it as soon as I knew about it. And the Court knows that is what happened. The Court was here yesterday when I was called down and shown for the first time the book repaired by agent Deedrick that contains that report. I read that report myself last night for the first time. What the Defense thinks they are going to do with the fact that an inquiry by telephone gave certain dye information--formulations and calculations, I have no idea, but they are entitled to do it.

THE COURT: Doesn't this report really speak to the rareness, the relative rareness of this particular fiber, and doesn't it eliminate--say, for example, one of the things that piqued my interest yesterday, and I asked Mrs. Robertson to pull up the crime scene photos to see how many Ford automobiles were driven by the police officers to the crime scene. And I was looking to see how many Ford Taurus's at the crime scene, but I know that Ford Taurus automobile are eliminated as a source of carpet which I found interesting.

MS. CLARK: Right, right, right.

THE COURT: But the thing is this report tells me how relatively few Ford Bronco automobiles there could possibly be that would in the--registered in the County of Los Angeles that would have this carpet fiber, this particular formula and this particular color, and that is very compelling circumstantial evidence. I mean, it really narrows it down to what kind of--what kind of--where this carpet fiber came from, don't you think?

MS. CLARK: And I agree with you, your Honor, but this is not--the problem I have with this, is that this is information that is reposed in a third party. This is not information that is retained by the FBI.

THE COURT: Let me ask you one other question. When was this report completed by Mr. Deedrick?

MS. CLARK: I have no idea.

MR. DEEDRICK: I don't consider it a report. I just consider it a narration of my investigation.

THE COURT: When was it completed?

MR. DEEDRICK: I'm sorry?

THE COURT: When was it completed?

MS. CLARK: When was it completed?

MR. DEEDRICK: Sometime this year. I don't recall.

THE COURT: A month ago, two months ago?

MR. DEEDRICK: A couple months ago probably.

THE COURT: Okay. All right. Miss Clark, any other comment?

MS. CLARK: Yes, your Honor. The problem that I have with the Defense argument is that obviously they are arguing out of both sides of their mouth. You know they say, we don't have information. It wasn't fair that we didn't get this. Obviously they did get enough information. They went to the source. They asked the questions. Their failure to follow up on their--on the refusal of the company by requesting the assistance of the Court or the Prosecution is up to them. They chose to drop the ball at that point. That is their--that is their choice. But to now turn to us and say, you know, it is our fault that they didn't follow up on that line of inquiry. We are required to give them the information necessary to challenge the evidence and we did, and they began to do so and then dropped the ball. Now, had they gone to the Court, requested assistance and then not been able to get the information, I can understand that, but they dropped it. They went to Masland, they didn't get the answer or they did get an answer, I don't know what exactly occurred, but obviously they had enough information to follow through and that is really the bottom line. That is what discovery is about. Now, I'm not saying I don't wish that we had turned this report over earlier. I do. I do. Because we don't need to be having all these delays right now. Is it compelling in the sense that this is an egregious violation? Again, I can only tell the Court the Defense was given information that they could have gone and followed through on. They did begin to, so obviously they had enough. And now that they do know they can give it to their experts and they can have their experts examine the reports, examine the underlying information, talk to anyone from Masland that might help them, speak further to agent Deedrick if that the help them. They are not precluded. They have a Defense case to put on. But to preclude the People from putting on important evidence like this in light of the fact that they have the report that contains the opinion and the conclusion of the expert with sufficient information furnished to the Defense to follow up on that and see what they could find out, I mean, they have everything that they are entitled to under the law. What they are complaining is that something else was prepared that they did not see, that simply documents Mr. Deedrick's further investigation through phone calls to Masland--

THE COURT: Does the report--

MS. CLARK: --as the third party.

THE COURT: Does the report turned over by Mr. Deedrick previously contain this information?

MS. CLARK: The report turned over to the Defense?


MS. CLARK: You mean the one yesterday or earlier?

THE COURT: No, previously, his previous report.

MS. CLARK: No, it doesn't contain the detailed information. It contains the opinion and conclusions about the match and about what fibers matched. It will contained information I think about the type of carpet fiber that it was, manufactured by Masland.

THE COURT: Any indicia of its rarity? Number of vehicles produced that have this carpet, this particular color?

MS. CLARK: I don't believe so. I don't believe so, because I didn't know that until last night, so--

THE COURT: All right.

MS. CLARK: If I didn't know--let me indicate what the photographs are that the Defense--

THE COURT: I was just about to ask that.

MS. CLARK: I thought so. Okay. The K53 and K54 are the exemplars of Kato and Chachi, the dogs. K47 is a hair exemplar from Collin Yamauchi.


MS. CLARK: I'm sorry, that is K47.


MS. CLARK: Uh-huh. Now, that is pretty interesting. If those are the photographs that the Defense claims that they don't have, then they must have photographs of the other police officer exemplars that we took and lab personnel, if that is the only one, because that is one of that series of the police officer and lab personal elimination standards, your Honor, that we have on the board. K47 is one of those.

THE COURT: All right. Go ahead.

MS. CLARK: K18--K17 is the exemplar from Nicole's dress. K18 is the exemplar from Ron Goldman's shirt.


MS. CLARK: 18, yes. K19 is the exemplar from Ron Goldman's jeans. Q27 is fibers from the Defendant's socks. K8B2, fibers from the blue knit cap. Q7A fibers from--hair and fiber--I'm not sure if these are hair or fiber, your Honor--K7A from the Bundy glove, K7C from the Bundy glove, and then Q1, Q3 and Q3B are from the Rockingham glove. I should indicate also that Tony Longhetti to took 65 photographs to Mr. Scholberg along with the evidence. There were thirty additional photographs that were left with him because they were extras and Mr. Neufeld asked him to give the photographs to him. He said he would. However, he has since checked evidence log and seen that Tony Longhetti to took all the evidence photographs back and he therefore is probably not going to return the photographs to Mr. Neufeld. And Mr. Scholberg should talk to Mr. Neufeld about this. In any case, 65 photographs were given to Mr. Scholberg back in September of `94.

THE COURT: But did they include these?

MS. CLARK: Well, I'm taking Mr. Neufeld's word for it that they didn't. That is what he says. I don't know.

THE COURT: All right. The Kato and Chachi exemplars I'm not particularly excited about. I don't think either side really cares about the dog fibers, but the Bundy glove, Ronald Goldman, I mean, these are critical fibers.

MS. CLARK: These are just photographs, your Honor. I know the Court--I'm not going to say it again. I just think that we probably see the issue differently, but the Defense has now had all of yesterday, last night and this morning, to look at all of these photographs. They have taken photographs of the boards themselves. How much more--how much more would they have done had they had these photographs earlier? If the Defense is complaining that they want the opportunity to take photographs, too, nothing prevents them from doing that. The evidence is readily available. It hasn't gone anywhere. It is in the same condition it always was. Nothing has been denied them. They are not precluded from it. And now they have examined all of the evidence. You know, by way of example counsel points out that Bob Blasier asked a series of questions that would not have been asked. Well, certainly they would have. They were pointing out the fact that LAPD didn't do the research when they know that the FBI did, so, you know--so I don't think that it would have changed that cross-examination any. But the Defense has now seen all of the photographs they are telling the Court now that they did not have, they have seen, they have taken pictures of. How long do they need to look at the photograph to be ready for cross-examination? I mean, isn't that the bottom line here, your Honor? We have an exhibit they had--they saw the day before we intended to introduce it. They've had now additional time to examine it and how much more would they have done if they had had the photograph a month ago?

THE COURT: All right. Any other comment, Miss Clark?

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

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

THE COURT: Certainly.

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

MR. NEUFELD: Your Honor, while she is doing that, I clarified with Chuck Morton that--

THE COURT: No. She is entitled to hear what it is you are saying.


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

MS. CLARK: Let me cite to the Court a couple of cases on the discovery issues. Hinz versus Superior Court, 20 cal.app.4th, 1818, page 1822 and 1823, and Sandifer--excuse me. Wood versus Superior Court, 25 cal.app.4th, 178 at page 182, both of which stand for the proposition that the underlying data on which an expert relies is not the subject of the discovery statute that is compelled to be turned over. We did not intend to offer the information given to Mr. Deedrick from Masland industries, simply that it was his opinion that the fibers matched and showed the fact that Bronco fibers did change over the years through the photographs which pins it down to a `94 Bronco or late `93, and that is it. We were not going to offer the information that Mr. Deedrick obtained from Masland industries, although there would arguably be some basis to do so because an expert can testify to some of the hearsay he relies on. That was never the intent. It wasn't the intent because I didn't know about it, but I could certainly understand the Court precluding him from referring to that at all in light of the discovery issue. But at least according to the case law, the kind of information we are talking about with respect to the research done with Masland is not discoverable in any event. His conclusion is and it was turned over. With respect to the rarity--

THE COURT: Was the fact that it is consistent with the carpet in a late `93 or early `94 Bronco, was that in Mr. Deedrick's original report?

MS. CLARK: I don't know. No, no. No, it was not. I can only come back to the fact that this was information that was readily discoverable by the Defense as well, though. It is not as though--though it was something that was reposed in the FBI. This was a third party that the Defense can an access to, gained access to, and could have sought further assistance from the Court to gain access to. And I don't understand why further subpoenas weren't issued for it, but they didn't.

(Brief pause.)

THE COURT: All right. Miss Clark. Anything else?

MS. CLARK: No, that is it, your Honor. I just--they have seen all the photographs now. They've had overnight to look at them, they have had all day to look at them, yesterday as well. If they want more time to look at them--I don't see--you see the problem is this, your Honor: The Defense complains that they need two to three months to prepare for this, which is ridiculous. They have had six months. This case has been--they've had the reports concerning Mr. Deedrick's conclusion about the fact that the Bronco carpet fiber from O.J. Simpson's car matches those fibers on the Rockingham glove and the knit cap for at least six months, if not more. They have known where to find the information concerning the production of that carpet type for at least six months, if not more, by their own admission, and now they are complaining that they didn't do further or better research. And that is not our fault and it is not our obligation, and if they are having trouble getting that information, it is up to them to let us know. We can't go knocking on their door and say, excuse me, have you had any trouble getting information lately? That is something that they have to tell us. And with respect to the photographs, what benefit would they have had to see the photographs even if they existed six months ago? They look at the photographs. They want to take their own, they can take their own. They can still do that. And that is the bottom line, is there is no prejudice and there is no harm other than their own failure to follow up on their own lead.

THE COURT: All right. Counsel, let me just make a comment. I don't find the Hinz case to be appropriately cited in this situation. The Hinz case at 1823 states as follows: "The report of a non-testifying expert which is in some way utilized by a testifying expert is not a document at least in ordinary circumstances which the Defendant will intend to offer in evidence. It is not therefore literally embraced within the description of the statute. That such subsidiary report may be discoverable as an aspect of cross-examination of testifying expert does not undermine this conclusion." This is a report by a testifying expert, not a non-testifying expert, so the Hinz case has no application whatsoever to this situation.

MS. CLARK: But we are talking about the information obtained from a non-testifying party which is Masland.

THE COURT: I don't care what you call this. This is a report.

MR. COCHRAN: Thank you very kindly, your Honor. I'm not going to stand here very long, your Honor, because you heard all this and the issues are clear. Certain things I just feel compelled to a say and then I will sit down. Mr. Neufeld wants to make a clarification regarding the photographic exhibits and I will ask you to hear that also. Just briefly, your Honor, we've heard a lot of legal mumbo-jumbo with regard to whether this is a report, and you just said it best, this report--this report, your Honor, is entitled "The search for the source--carpet fibers," et cetera, "The O.J. Simpson case." And if you look at this report, your Honor, every page they are talking about O.J., O.J., O.J. Simpson throughout this report.

This is--that is folly for her to stand here and say that. You saw the report. The booklet this FBI agent had had "O.J. Simpson" on the outside. And so when she talks about Mr. Simpson getting special favors, never before has there been a Defendant who has been subjected to every law enforcement helping in the case, ever in the history of the state. We have to ask for things because we are fighting the power of the government and a man who is innocent, and that is what we are trying to do here, so let's make that clear. But I'm not--you've heard all that that and they can cite you cases, as they oftentimes times do, that are never on point. But I'm going to cite you Ito on the law, Ito on the law in this case, and it says: "If it comes to pass if there are reports or conclusions which were reached and there was a deliberate manipulation of the process, there will be preclusion." You said that. That is the relevant law in this courtroom. We all abide by that. We have lived with that and we do accept responsibility, contrary to what she said.

She tried to accept it and she tried to weasel out. You have to accept it or not accept it. And their--you know, it is very hard for Miss Clark to say they--she was wrong and this was intentional. And they she says they saw the photographs overnight. Your Honor, I remember one time there was a situation where you gave them like as long they wanted. They asked one time for a month over some little tiny thing that they wanted and we were--we were aghast they wanted a month. I think it was early on in the trial. I don't think it ended up being the positive. But now she says we saw the photograph last overnight. When we finished seeing the photographs last night, everything back east was already closed. And the last thing I wanted to bring to your attention, is this whole thing about Masland--and you know it is very interesting for the Prosecution to make these kind of thoughts, these kind of--largesse thoughts--I used to be a Prosecutor so I can understand that. When the FBI calls Masland, it is far different than a Defense investigator calling Masland. And Masland gave us disinformation saying this carpet was common is what happened. It was common, not rare, and that is the whole thing. Every time you ask a question about that report we were given, which throws us off, they have to then step back and say, well, you know, this rareness and commonness thing, well, you know, that is something I wasn't going to use. Well, whether or not Miss Clark knew about this or not, she should have known, and that is the test you applied to us, your Honor. She should have known. She is the leader of that team and she is a very thorough lawyer who hasn't had a witness in a long time who is building to this point. So it seems to me if Mr. Deedrick kept this from her, then she should take it up with him, but I--I would suggest that he knew, he knew it was there. And even now, your Honor, he sits over there says trying to tell you this isn't a report. If this is not a report, I don't know what you call it, and that is the essence of it. So you have listened to us. Now it is time for action. You have heard us. It is up to you. We just want a level playing field and we want fairness here, and fairness, your Honor, is preclusion. We don't want a continuance. We want hold them to the same standard of everybody else.

All I have to do is cite Ito on the law and I don't have to miscite any cases. I can cite your Honor. That is all I ask you to do. Would you listen to Mr. Neufeld now briefly?

THE COURT: Just to clarify which photographs we are talking about.

MR. NEUFELD: Your Honor, there was a mention by Prosecutor Clark about K47. Mr. Morton says that that is actually--it is a standard reference fiber from Q47 which is the knit hat. Apparently there is--we can check it out. It is not a big deal. There may be just a misunderstanding here. That may be one of the standards, blue black fibers from the knit cap, so that is why it was a "Q." It is not a "K." We didn't include it in this list any of the photographs from the elimination board. We never received any of them period, so that is not on this list. None of those photographs were ever turned over.

THE COURT: All right. Let me see K53 and K54, Mr. Escobar.

(Brief pause.)

THE COURT: All right. Thank you. All right. May I see--why don't you just put the next board up, Mr. Escobar, and let's see what's there.

(Brief pause.)

THE COURT: All right. This is the known head hairs from Nicole Brown Simpson compared with some of the q series. All right. On this particular board, Mr. Neufeld, are any of these photographs any of those that were not turned over to Mr. Scholberg?

MR. COCHRAN: May they get closer, your Honor?

MR. NEUFELD: May we approach? I can't read the number.

THE COURT: Sure, sure.

MR. COCHRAN: May he go through the well, your Honor?

THE COURT: Yes, he may.

MR. COCHRAN: Thank you.

(Brief pause.)

THE COURT: I don't see any of these on my list.

MR. NEUFELD: Q1 is on your list, your Honor.

MS. CLARK: They have K7B and K27.

MR. NEUFELD: We have K7B and we did get K23, but we did not get the K1's. You didn't have those on the list?

THE COURT: No, I just found it.


(Brief pause.)

THE COURT: All right. Thank you, Mr. Escobar. All right. This is "Known head hairs from Ronald Goldman, head hair from Ronald Goldman's shirt compared with Q3C and Q3C and Q23." I think you have all of those.

MS. CLARK: No, they have all of them.


THE COURT: All right.

(Brief pause.)

MR. ESCOBAR: This is the "Eliminated hair standards" board.

THE COURT: All right. The elimination board. All right. Thank you. (Brief pause.)

MS. CLARK: They have all these.

MR. NEUFELD: One second, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: We do not have Q8C. It wasn't on your list, but you have to understand Mr. Morton looked at it very quickly this morning, but it is not on Mr. Scholberg's list, because I have Mr. Scholberg's list here also.

THE COURT: Well, I have 13 photographs here listed that you gave me and Q8C is not one of them.

MR. NEUFELD: I'm saying is the no. 13 came from Chuck Morton's very quick review this morning comparing them to a list that I received last night from Myron Scholberg. I'm saying that there is one that Mr. Morton missed in his very quick review this morning, but it is not on Myron Scholberg's list. The additional problem, your Honor, with this exhibit, I'm going to ask the Court to consider, is the problem where we have photographs which were originally K7's which are now called Q's.

THE COURT: So you don't have Q8C? Is that the one?

MR. NEUFELD: Right. That's correct, but then we have the additional--

MS. CLARK: How are we determining what they do or don't have?

THE COURT: Hearsay from Mr. Scholberg.

MS. CLARK: I'm a little concerned.

THE COURT: Hearsay from Mr. Scholberg.

MS. CLARK: How do you know that what Mr. Scholberg is referring to is what you think it is?

THE COURT: Which is why I asked where Mr. Scholberg was, but we will determine that, but I want to know which are the contested photographs before we go any further.

MR. NEUFELD: Just the other problem, your Honor, is these two photographs on that one right now--

THE COURT: I am not interested in that at this point.


(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Your Honor, this was a board that Mr. Morton didn't actually see this morning because it was being photographed, so there are now additional items that are not on Myron Scholberg's list that he gave me last night and they would be Q10, Q13, Q18.

THE COURT: Q10, Q13.

MR. NEUFELD: Yeah, and Q18, and then there is this problem which is Q47 here is a hair from a knit cap. The Q47 that Mr. Scholberg gave me he said was a fiber; not a hair. I will just have to get clarification on that. That is all I know.

THE COURT: All right. Let's see the next board.

MR. NEUFELD: I mean that is one of the problems.


(Brief pause.)

THE COURT: There is another Q47.

MR. NEUFELD: That is the one--that would make sense, so that is the fiber that Mr. Scholberg was talking about.

THE COURT: We have a second Q47.

MR. NEUFELD: Right. We do not have K18. Never got K18. We do not have Q3B. We do not have Q1. We do not have Q8B2 and we do not have Q7C, but we do have Q47 fiber.

THE COURT: And the Q47 on the known head hair from the Defendant--

MR. NEUFELD: We do not have.

THE COURT: --was in fact a hair?


THE COURT: So you have two Q47's. All right. The next one, Mr. Escobar.

(Brief pause.)

THE COURT: All right. This is "Known fibers from knit hat and Nicole Simpson's dress."

(Discussion held off the record between Defense counsel.)

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

MS. CLARK: I think the K47 is actually the known standard from the blue knit cap.

MR. MORTON: So K47 is incorrect on that.

MS. CLARK: No. That would be correct.

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

THE COURT: All right. Counsel, Mrs. Robertson advises me that Mr. Scholberg is on the phone and is advising the Court through Mrs. Robertson that there is some confusion as to the numbering and which photos he has and does not have. We are going to take a brief recess. I'm going to ask counsel to consult with Mr. Scholberg, get an inventory of what he had, what he didn't have, and let's get this clear. All right. We will stand in recess.


THE COURT: All right. Back on the record. Counsel, have we had the opportunity to clarify the photos, who has what photos?

MR. NEUFELD: Yes, your Honor. Mr. Scholberg confirms the correctness of the list. He called because he was concerned about why photographs were being confused at all. He thought there was confusion about photographs. But there is one other problem here which Mr. Morton pointed out. What they are calling K47 is actually a known fiber from what has previously been called Q47, that K47 on the FBI reports is in fact a standard from Collin Yamauchi, so it is actually mislabeled there.

MS. CLARK: Right.

MR. NEUFELD: You see what I'm saying?

MS. CLARK: Yes. Counsel is correct. It should read Q47, parenthesis, "Known." That is our fault. That is why I was explaining to the Court yesterday, you know, the labeling was not completed on these until yesterday afternoon and on some Jonathan informed me this board has not been corrected yet. As you can see, there are patches on them. We had to relabel a lot of things because they were incorrect because there were so many, which was part of the delay in getting this to the Court, so that will be relabeled if we are permitted to use it.

MR. NEUFELD: So then it is the K17 and K47, though, that we did not have which they call--I'm sorry. Which--well, we knew it as Q47, okay.

THE COURT: You know it as q but you have the photograph?

(Discussion held off the record between Defense counsel.)

THE COURT: All right. Mr. Escobar, next matter, next board.

MR. NEUFELD: Your Honor, I can't answer that question based on what I know.

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

MR. NEUFELD: May Mr. Morton and I step up again, your Honor?


MR. NEUFELD: Thank you.

(Brief pause.)

MR. NEUFELD: Your Honor, he was given a photograph of K14. He was not given the photographs of K9 and then on the--

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: We have the two Q3C's on the left and right side, your Honor, but not the electron microscopic photograph in the middle. That we never received. So in other words, neither of those electron microscopic photographs, K9 or the one that is Q3C in the middle, were ever disclosed.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Your Honor, Mr. Morton has also brought to my attention that the Q47 fiber we had is the fiber from the knit cap listed here, not the--not the--not what is listed as K47 on the previous board, which is really a known from a Q47, so we hadn't those photographs either. This is the only Q47 we did have.

THE COURT: All right. You don't have Q3C and K9.

MR. NEUFELD: We have the Q3C on the far left, but not the Q3C in the middle, which is the electron microscopic photograph of Q3C. On this board they are both labeled Q3C.

THE COURT: Uh-huh. Got it.

(Brief pause.)

THE COURT: All right. This is the "Bluish black cotton fiber associations."

MR. NEUFELD: We do not have Q3B. We do have Q23. We do not have Q37. That is it.


(Brief pause.)

THE COURT: This is "Known cotton fiber from Ronald Goldman jeans, questioned cotton fibers from Ronald Goldman man's shirt."

MS. CLARK: They have Q23.

MR. NEUFELD: We have Q23; we do not have K19.

THE COURT: All right. Thank you, Mr. Escobar.

(Brief pause.)

MR. NEUFELD: Is that it?

MR. ESCOBAR: This is the last board, your Honor.

MS. CLARK: They have all that.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: We don't have Q3A.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Mr. Morton believes he didn't actually see this board either because it was being photographed. We don't have Q3A nor Q21.

THE COURT: All right. Thank you, Mr. Escobar.

(Brief pause.)

MS. CLARK: May I make an observation to the Court about these, your Honor?

THE COURT: Briefly.

MS. CLARK: Very briefly. Of the photographs on the boards, the ones that they complain of not having are all accompanied by photographs they do have and have had since September of `94. Q1 is on the same board as other photographs questioned hairs that were photographed that they did have. Q8C is again the same thing on the same board as photographs of hairs that they did get. Same thing for Q10, 13, 18 and 47, on the same board with photographs that they did get. Q8B2 and Q7C, same issue on the same board as photographs that they do have. With respect to the blue black cotton fiber that we heard so much screaming about, in fact yesterday, in fact they did have a photograph of that, Q23. They have photographs of Q23 which is on the board with other fibers--with--which is photographs that they do have on the same board with photographs they claim not to have. The issue here is that the Defense clearly knew as of September of `94 that photographs of the microscopic comparisons were taken. They had them in their possession and have had for, what is this now, ten months. So they were on notice that such photographs were taken. We decided to present them in--on the form of boards and presented them to them the day before. And now we hear there are some photographs that they do not have, they have had the opportunity to examine them. They have had the opportunity to photograph them. There is nothing else that could be done to provide them with discovery and time to examine it, but the bottom line here is that they were on notice that these photographs existed. And if they were concerned that they wanted to provide their own photographs, they certainly have had ample time to create them. And access, having had the evidence in their hands for at least three occasions, on three separate times with all of their experts and knowing that photographs had been taken by our experts, what stopped them from taking their own photographs? And how can they complain that there were some photographs that they didn't see on boards with photographs that they did see? All right. Now, you have seen them.

THE COURT: Counsel, you were just making some observations regarding the associations. Is that it?

MS. CLARK: Anyway, that is it.

THE COURT: All right. Thank you.

MS. CLARK: I did want to point that out. But let me say this, your Honor: To preclude evidence that is important to the proof of the elements of the crime would unfairly punish not just the victims, but the People of the State of California. And I do point out to the Court the families of Ronald Goldman and Nicole Brown Simpson. To preclude that kind of evidence in a case, and it is important evidence, your Honor, not willfully withheld, not knowingly withheld, and the Court knows that, and even the Defense knows that, it has been turned over, turned over as soon as we found out about it, it penalizes the wrong party. If the Court feels that we have been remiss, then I would urge the Court to penalize us personally, or myself personally, but please don't, please don't penalize the proof of the case.

MR. COCHRAN: Your Honor, with regard to those last remarks of counsel, the District Attorney's office are the representatives of the People, as we all understand. They are representing the People, they are representing the victims, they are representing everybody. They represent O.J. They represent the innocent as well as the guilty. That is what justice is all about. And when they do something in this case, as they have done, they have to be held accountable. It is fine to make that kind of a speech, and the Court is going to have to weigh that. When your Honor recited what you would do in this case, you were mindful that that applied--you weren't just saying that applied to the Defense, it applied to both sides, so we can't carve out an exception for the People just because they want to say we messed this up and we don't want this to be to the detriment of our case. When the lawyer makes a calculated decision, and they are caught in that decision, they are held responsible for that and their case does suffer, because you see, it is not just the People, it is the jury, it is everything, it is justice, it is the Defendant and his right to a fair trial. And the only thing I wanted to say in response to what she indicated, you listened to us enough. Based upon the errors we have seen on this board, we want to look at the microscopic slides in addition to these photographs. I mean, we are not going to take their word for things, your Honor, and I think you can see that there are enough errors here that there are problems with regard to this and we just can't accept their word for what has happened. And we tried to point that out in the course of our remarks, so you have heard it, and I will submit it, and I have expressed to you how we feel.

THE COURT: Thank you, your Honor.

MS. CLARK: Your Honor, I don't want you to be mislead. The errors are ours on the labeling; not Mr. Deedrick's.

THE COURT: I understand. All right. The Court has before it two particular issues; the late disclosure of photographs that the Prosecution hopes to offer before the jury, but also has before it the content of a report regarding investigation into the source of the carpet in the Bronco automobile which speaks to the relative rarity of that particular carpet--that particular formulation and color and date of manufacture. I will address the photographs first. The Court will overrule the objection to the photographs for the following reason: The Defense has had access to most of the photographs. None of the photographs that are in dispute depict items that other photographs of which do not similarly exist. The Defendant also had access on at least three occasions to each piece of the physical evidence that the photographs depict, so the objection on that basis will be overruled. The objection to the content of the report prepared by Mr. Deedrick regarding the source and rarity of the carpet fiber, that objection will be sustained. The Prosecution will be precluded from presenting any evidence that is contained in the report. All right. Let's have the jury.

MS. CLARK: May I just ask for one clarification, your Honor? With respect to agent Deedrick's conclusion that the Bronco fibers are consistent with what was contained in his report, is that admissible?

THE COURT: That is admissible.

MS. CLARK: All right.

MR. COCHRAN: Your Honor, before those questions are posed, will counsel approach the bench so we don't have any misunderstanding on that when we get to that point, so there is clarity?

THE COURT: Trust me, all of our antennas will be up.

MR. COCHRAN: Your Honor, I would think so. There is one other thing we would like to bring up.

MS. CLARK: The Court's ruling is very clear.

MR. COCHRAN: We hope, your Honor, but your Honor, with regard to--would the Court entertain our proposed jury instruction with regard to this delay and what has happened the last half day or so, as you have done in the past? Professor Uelmen is here, and rather than take the time now, we would like to be able to prove something to you as to what occasioned this delay.

THE COURT: Well, it would have been nice if you had asked before I invited the jury to rejoin us.

MR. COCHRAN: Let me suggest this: I had to hear what your Honor's ruling was going to be first. Professor Uelmen is here and we wanted to get this case underway. What I was going to suggest to you, if we draw up something will the Court entertain it or we can do it real fast right now. I think it is appropriate.

THE COURT: You can submit it to me. I want to start with the jury, though.

MR. COCHRAN: That is fine. I'm not saying we shouldn't start with the jury.

THE COURT: You can submit it to me and I will consider it.

MR. COCHRAN: That's fine.

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

THE JURY: Good morning.

THE COURT: As you recollect, yesterday we ended a little early because there were several things that I needed to take up with the lawyers, and we spent a long time yesterday and we spent a long time again this morning. I apologize to you for that. Unfortunately these things happen during the course of the trial, hard fought trial. Miss Clark, the People may call their next witness.

MS. CLARK: Thank you, your Honor. Good morning, ladies and gentlemen.

THE JURY: Good morning.

MS. CLARK: The People call Mr. Douglas Deedrick.

Douglas W. Deedrick, called as a witness by the People, was sworn and testified as follows:

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


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

MR. DEEDRICK: My name is Douglas W. Deedrick. Deedrick is spelled D-E-E-D-R-I-C-K.

THE COURT: Miss Clark.

MS. CLARK: Thank you, your Honor.


MS. CLARK: Mr. Deedrick, can you tell us where you are employed?

MR. DEEDRICK: I'm a special agent with the Federal Bureau of Investigation. I'm currently assigned at the FBI laboratory in Washington D.C.

MS. CLARK: How long have you been with the FBI, sir?

MR. DEEDRICK: Well, I have been with the FBI for 23 years and I have been working in the laboratory now for a little over 17.

MS. CLARK: What is your current assignment?

MR. DEEDRICK: Currently I'm the unit chief in the hairs and fibers unit of the scientific analysis section. I have been the unit chief for approximately two years.

MS. CLARK: What are your duties as unit chief?

MR. DEEDRICK: Well, as unit chief I'm responsible for supervising other special agent examiners, support examiners and physical science technicians. I review reports that they compile. I provide protocols and information regarding the operations of the unit. I supervise various programs that are undergoing in the unit, such as skeletal remains. We have a DNA program that we are currently researching and other matters that deal with evidence admission and evidence examination.

MS. CLARK: Approximately how many employees do you supervise, sir?

MR. DEEDRICK: I supervise about twenty employees.

MS. CLARK: Are they all hair and trace examiners?

MR. DEEDRICK: Yes, they are.

MS. CLARK: And what is your education?

MR. DEEDRICK: I came into the FBI in 1972 with a bachelor's degree in biology from Indiana University.

MS. CLARK: Can you tell the jury what you've done with the FBI over the past 23 years?

MR. DEEDRICK: Well, in 1972 I hired on with the FBI as a clerical employee and I was a file clerk. I gave tours at FBI headquarters for several years and then I went in to new agent class in 1976. After completing new agents training, I was assigned to New York City as my first office, where I was involved in fugitive investigations and other matters. In late 1977 I was reassigned to the laboratory division into the hairs and fibers unit where I had one year of training and after that time became an examiner. Since that time I have primarily been an examiner in the unit.

MS. CLARK: And you continue to examine as part of your duties?


MS. CLARK: And by "Examine" we mean hair and trace submitted to you in various cases?

MR. DEEDRICK: We get evidence submitted to the FBI laboratory from local and state law enforcement agencies around the country and around the world. We also do support work for our FBI field operations, such as investigating bank robberies or kidnappings, hijackings, extortions, a number of investigations that we are responsible for as a law enforcement agency. We may conduct examinations in those cases.

MS. CLARK: So it sounds like all kinds of cases?

MR. DEEDRICK: Well, there are number of violations, federal violations that we may get involved with, and from the standpoint of local and state, most of our work deals with homicide investigations, sexual assaults, aggravated assaults and other matters that are primarily the concern of local and state law enforcement.

MS. CLARK: So you are testifying in this case--it is a local case, right? This is not a federal case, is it? It is a state case?

MR. DEEDRICK: Yeah, it is a state case, right.

MS. CLARK: Is it unusual for you to be testifying in a state case for a local agency?

MR. DEEDRICK: No. Probably most of my testimonies have been in state Court.

MS. CLARK: Now, approximately how many cases have you examined in the lab?

MR. DEEDRICK: Well, I've examined probably 4000 cases since 1978. That is about when I finished my training. I've testified in maybe 400 of those cases, so about ten percent of the cases that I work involve some form of testimony.

MS. CLARK: And in those 400 cases in which you have testified, have you qualified as an expert in the field of hair and trace examination?

MR. DEEDRICK: I have. I also do feather examinations and I do some wood examinations, too, but it is trace-related.

MS. CLARK: Have you always testified for the Prosecution?


MS. CLARK: You have testified for the Defense as well?

MR. DEEDRICK: Maybe 25 or 30 times.

MS. CLARK: Whenever they ask you to?

MR. DEEDRICK: They request it. Sometimes the evidence that I look at exculpates or indicates in some way that the Defendant in the case may not have committed the crime and in that instance or in those instances I would go and testify as their witness, which I have.

MS. CLARK: Have you been involved in any training duties in the unit?

MR. DEEDRICK: Well, as unit chief I kind of added on the training coordinator responsibilities which I had already had prior to becoming unit chief, so I am responsible for making sure that the training programs implemented in the unit for all the--the technicians, as well as the examiners, are complied with and the requirements met. I also teach at the FBI academy. I teach--I haven't taught new agents yet, but I have taught national academy individuals, people--law enforcement individuals who go to the FBI academy for a 15-week training period. I have lectured them. I have lectured in-service training for agents in the field and also I teach introduction to hairs and fibers, which is a two-week course that we provide other law enforcement agencies and other laboratories in how to do hair and fiber examinations.

MS. CLARK: Now, do you provide technical assistance to other agencies or institutions?

MR. DEEDRICK: I do. I have been involved with training other individuals that are interested in hair and fiber type examinations. I've trained people from the CIA, from the postal inspectors. I've worked with people from the air force, the navy, NASA, Smithsonian. Quite often the Smithsonian will come up with some interesting artifact and they want some expertise on maybe hairs that are recovered or fibers that are found to determine the authenticity of a particular item. They may--and they have in the past come over to the laboratory and I've done examinations for them.

MS. CLARK: Now, have you made any presentations at international symposiums?

MR. DEEDRICK: I have. I made two presentations in Mexico at the Forensic International Symposium.

MS. CLARK: And what was that concerning?

MR. DEEDRICK: Well, that was primarily the significance or the value of hair and fiber evidence to promote it in a sense to show the value of it to these investigators so that they may incorporate that type of analysis in the investigation of crimes in their areas.

MS. CLARK: Do you collaborate with other experts through forensic associations?

MR. DEEDRICK: Yes. I have attended meetings down at--down at the academy. I went to the 1985 international hair symposium, sat on a committee there. I also--I have attended technical working group for fiber examinations--examiners which is at the academy and it is made up of individuals from around the country who are interested in developing knowledge about fiber examinations. I have attended the European fibers group meeting in Sweden just recently, and again that is working with the Europeans on the same type of work, but collaboration is part of growth and it is part of learning more about the field that we are working in.

MS. CLARK: You indicated that you did--you are involved in some training. Is there a training committee that you are involved with?

MR. DEEDRICK: Well, there was a training committee that was established to establish guidelines for the new examiners that are coming on board around the laboratory to make them more uniform throughout the lab, and I was designated as a member of that committee to establish those guidelines. In the past I have been involved with committees that have essentially supervised the training and during the whole year of their training to make sure that the requirements of that unit were met, and it is sort of an outside review, as opposed to an internal review.

MS. CLARK: So you designed the training program?

MR. DEEDRICK: Well, in the unit. I designed the hairs and fibers training program both for the technicians and for the new examiners.

MS. CLARK: Have you ever heard of proficiency tests?


MS. CLARK: Do you take--do you administer those, in the course of your job as unit chief, to your employees?

MR. DEEDRICK: I design the proficiency test relating to hair and fiber examinations for all the examiners in the unit. They take two tests a year. I have one of the examiners make up--make tests for me so I can maintain some proficiency. Working cases helps, but it is just a way to check. We do have a blind testing program which is--comes out of Quantico at the academy at the training division where tests come in or cases come in from field offices or other agencies. They look like a regular case and they are worked as a regular case and then they are reviewed--they are sent back to Quantico for review to see if they were done properly, if they were done in a timely fashion, just to review the accuracy and timeliness of the case.

MS. CLARK: In that situation then you are being tested but you wouldn't know it?

MR. DEEDRICK: You wouldn't know it. As an examiner you wouldn't know it.

MS. CLARK: Well, what if you make a mistake on one of those blind tests, how do you find out?

MR. DEEDRICK: Well, the blind test results are returned back to the unit chief for review. The unit chief will then determine if the case was done properly. I would review the notes of the case to make sure they were done. No recommendation is done at this particular time. I then return that to the training committee at Quantico who then makes final determinations. We are involved in external training as well. We have been taking external tests from the European fibers group and from other groups over the years.

MS. CLARK: By "External tests" you mean?

MR. DEEDRICK: Well, an external test is a proficiency test that is provided from outside your own group, such as the European fibers group over the past couple years has sent tests out that we've--we've worked with and sent back a response in the past. And I can't recall how many years ago I think the English were sending around a test and I was asked to take the test for our unit and I haven't heard any results on that.

MS. CLARK: What does that mean, you haven't heard any results on that? Is there any significance to that?

MR. BAILEY: I object as speculation.

THE COURT: Sustained.

MS. CLARK: Let me ask you, sir, if you know when you are tested, either through a blind proficiency test which you don't know you are being tested by Quantico or by an external test, are you notified if you made a mistake?

MR. DEEDRICK: You become aware of it, yes, they will let you know. And the purpose of these tests, whether they are internal, external or blind, is to see if anybody is having a problem. If somebody is not making the matches that they should make or they should--that they make the proper associations are not--

MR. BAILEY: I object to the use of the word "Match," your Honor.

THE COURT: Sustained.

MS. CLARK: May I lay a foundation, your Honor?

THE COURT: Proceed.

MS. CLARK: So you are notified if you make a mistake or you are made aware of that?

MR. BAILEY: I object to that. He can't testify to what others do and don't do.

THE COURT: Overruled. Proceed.

MR. DEEDRICK: The purpose of proficiency tests, as I said--

THE COURT: Go ahead and ask another question.

MS. CLARK: Did he answer it?

THE COURT: The question are you notified, yes or no?


THE COURT: He has answered the question.

MS. CLARK: And the answer was yes.

MS. CLARK: Okay. Have you ever been notified, sir, of having made a mistake on a proficiency test?


MS. CLARK: How about anybody else in your lab?

MR. DEEDRICK: I have no record of any such mistake being brought to my attention. We have been involved in proficiency testing in the laboratory since 1986.

MS. CLARK: And since 1986 when proficiency testing began you have not had any mistakes brought to your attention?


MS. CLARK: Made by anyone?

MR. DEEDRICK: No. In the last few years I have been grading the tests as well.

MS. CLARK: Now, when--okay. Earlier you used a term and I would like to ask you about its scientific propriety. When you make an examination of hairs or fibers and you attempt to compare them to see if they are the same or similar composition, do you ever use the term "Match"?

MR. DEEDRICK: Sure. We use the term "Match."

MS. CLARK: And when you use the term "Match" what do you mean?

MR. DEEDRICK: Well, a match indicates that the questioned material and the known material exhibit the same microscopic characteristics. With textile fibers they may also exhibit certain optical properties which are also the same. When I say "Match," we cannot say with absolute certainty that a fiber originated from a particular fabric. It is not possible to do that, nor do we say that a hair that is found at a crime scene or in a proficiency test originated absolutely from that individual. Now, on a proficiency test you know it did because that is the way the test is designed. You have a known sample from an individual and you have a questioned hair. Now the questioned hair, I know came from that person. That is a fact. But the most an examiner can say about that hair is that hair could have come from that person if it exhibits the same microscopic characteristics. It is a fine line but we only say "Could have."

MR. BAILEY: If it please the Court, in view of that explanation--

MS. CLARK: Your Honor, are we having speaking objections now?

THE COURT: Sustained. Counsel, side bar with the Court reporter.

MR. BAILEY: Right.

(The following proceedings were held at the bench:)

THE COURT: We are over at the side bar. You guys are just bound and determined to make this a difficult day for me.

MS. CLARK: No, your Honor, but I think this is now the second time Mr. Bailey has objected and the second time that we have been given a speech and I thought--

THE COURT: No, no.

MS. CLARK: Supposed to be limited to legal grounds.

THE COURT: Well, counsel, my concern is that we discussed yesterday the Court's concern about the term "Match" in whether or not that is appropriate in this particular arena, which I don't believe that it is, given the testimony that we have just heard.

MS. CLARK: The testimony I heard is that this is a--that they do use and this is what they mean by that term and he qualified it and explained it. This is the expert himself who says that the term is appropriate with the following meaning attached to it.

THE COURT: Mr. Bailey.

MR. BAILEY: My objection, your Honor, and I had a discussion with him last night as to whether this 1977 FBI manual on hair and fiber is still current, it has never been replaced. The policy of the department is that there is not a match. The most can be said is "Consistent with" or "Similar" and he agreed that that was still the case. Now we've had the word "Match" used with the DNA and I think it is very inappropriate to use that same term here. It is being deliberately used to try and enhance the Prosecution's position that this is Mr. Simpson's hair and not just one that is consistent. And it is plain English. This jury knows what the word "Match" means. To abuse it in this man's testimony is very prejudicial.

MS. CLARK: That is incorrect. We are not abusing it and I want Mr. Bailey to point out to the Court where it is written in that manual that you can't use the term "Match." Mr. Deedrick--I asked Mr. Deedrick last night is this inappropriate under your guidelines?

THE COURT: Keep your voice down.

MS. CLARK: I'm sorry. Is this appropriate under your guidelines and is this an appropriate term and do you go outside the hicks guide? And he said, "No, I do not, and my testimony is going to fit within these guidelines."

MR. BAILEY: The introduction here makes it very plain of what can and cannot done. Your Honor, in his record on fibers he used the word "Match." That is a term of efficacy. Mr. Deedrick is well-known.

MS. CLARK: I don't know about well-known and I don't think personal attacks are warranted, but the expert has indicated this is an appropriate term to use with the explanation that he has given and I think he has explained very well he can say could have come from, consistent with, and that is what we mean. We mean the microscopic characteristics match and they do. I mean, that is the bottom line, your Honor. That is how he makes his conclusion, do they match, they match. Does that mean that it could only have come from this person? No. He is going to say that about 200 times on direct, that it doesn't mean it comes from only this one person. I'm going to be bringing it out repeatedly. But do the microscopic characteristics match? Yes, they do. Does that mean it could only have come from him? No, it doesn't.

THE COURT: All right. I'm going to sustain the objection to the use of the term "Match." Instruct your witness.

(The following proceedings were held in open Court:)

THE COURT: Thank you, counsel. Proceed.

MS. CLARK: All right.

THE COURT: We were talking about proficiency tests.

MS. CLARK: In case work examinations what is the habit and custom in your lab concerning review by other examiners? For example, if you have a case and you draw conclusions about what you have seen in the course of your comparisons, does someone else review that as well? Do they just review your paperwork or do they review the actual items that you compared?

MR. DEEDRICK: Well, with regard to all hair--hair associations, that is when an individual, an examiner says that this hair exhibits the same microscopic characteristics as a known sample from an individual and that is what is being reported, another examiner will take a look at that same hair association and determine whether or not it is valid. If that person signs off on it, then the report will be reported out and it will come to my desk. I review all the documentation that is done in the case, not only just the hair--hair association, but any other work that has been done, such as if all the fiber tests have been conducted properly, if all the requested examinations have been answered, if all the items are correct, and so forth, so I'm kind of like the last stop in the laboratory for the report before it goes out.

MS. CLARK: Now, is there anyone in your unit that has as much or more experience than you do?


MS. CLARK: Who--who next to yourself in terms of years and experience is there?

MR. DEEDRICK: Well, we have two examiners that have approximately six or seven years of experience, case working experience.

MS. CLARK: And yet you have indicated to us that you have your case work confirmed by someone in your unit as well, correct?


MR. BAILEY: I object. Object, hearsay.

THE COURT: Overruled.

MS. CLARK: And why would you do that if they don't have as much experience as you?

MR. DEEDRICK: Well, I don't have any doubts in the abilities of any of our examiners, our qualified examiners, and their ability to properly associate hair evidence. They wouldn't be doing cases if I had any question about that. After a year of training, you get a pretty good idea as a training officer or as a unit chief as to the abilities of someone to make the proper call. Once they are qualified, they have an opportunity, as with any examiner who has had number of years of experience, to confirm or not to confirm hair associations that someone else has made. I would have them look at my work, just as they would have me look at their work.

MS. CLARK: And did you do that in this case?


MS. CLARK: Someone reviewed all of your work?


MS. CLARK: How many hair comparisons have you done over the past 17 years?

MR. DEEDRICK: Well, each case--each case that comes in, and a case being evidence submitted in a criminal violation, may contain a lot of items. I really don't know exactly how many the average is, but ten to twenty items of evidence submitted in a case is not unusual. That would be items from a suspect, items from the victim, items from the crime scene, so all of these items have to be processed for hairs and fibers, and you have to examine all of those. So there could be--there could be hundreds of examinations and comparisons conducted in each case, so if you multiply that out, that is a lot of hairs and fibers.

MS. CLARK: You said about 4000 cases?

MR. DEEDRICK: About 4000 cases, yes.

MS. CLARK: So 4000 times a hundred, 400,000 comparisons?

MR. DEEDRICK: That is--I would say half a million would be reasonable. I think--I feel like I've examined a lot more than that, but half a million sounds all right.

MS. CLARK: And that is for hair and fiber combined?

MR. DEEDRICK: That is both.

MS. CLARK: Okay. Let's talk about the composition of hair. What do you use to examine hairs?

MR. DEEDRICK: Well, hair examinations are conducted with a microscope, either a research microscope, a stereo binocular microscope or a comparison microscope.

MS. CLARK: And what can you tell from the microscopic examination of hairs?

MR. DEEDRICK: Well, the first thing you have to determine with regards to hairs is whether it is an animal hair or human hair, and if it is an animal hair, if it is important in the case, it can be identified through reference collections, confirmed through reference material. But also the first step is what is in your own head from your own knowledge. With human hairs, the race of the individual, the part of the body the hair came from, how it came out of the body, if it has been artificially treated, if it has been subject to some disease or some damage. And these are the first things that have to be determined on every hair that is examined with--under the microscope.

MS. CLARK: Those--with regard to those first things that you look for during your examination of a hair under the microscope, you indicated how the hair was removed?

MR. DEEDRICK: How the hair was removed. Hairs can be naturally shed, they would have a root that looks like the head of a wooden match stick. Kind of rounded, looks like a club shape. If it is forcibly removed, as is the case sometimes with matters that I look at, the hair, which is firmly attached, will be pulled and it will stretch, it will look all stretched out, and it may even have some tissue from the follicle or from the area the skin where it is attached. That is forcible removal. If the hair has been pulled, it may also break at the skin line. It may tear. It may be cut with a dull or a sharp instrument. These are things that can be determined microscopically.

MS. CLARK: Now, there are then--you were referring to these microscopic characteristics. Are there specific ones, characteristics of hairs that you use to compare when do you your examination?

MR. DEEDRICK: There are a number of microscopic characteristics that I look at and I consider and compare in every case.

MS. CLARK: Would it assist you in your explanation of those characteristics to the jury if you were to refer to a diagram?

MR. DEEDRICK: That would be wonderful.

MS. CLARK: People's 459, your Honor.

THE COURT: All right. People's 459.

(Peo's 459 for id = diagram)

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

MS. CLARK: Okay. We see before us People's 459, a diagram. Are you familiar with this diagram, sir?


MS. CLARK: How come?

MR. DEEDRICK: I prepared it.

MS. CLARK: All right. Since you prepared it, you can explain to us what you were trying to indicate on this chart with respect to the microscopic characteristics of hairs.

MR. DEEDRICK: I will be glad to. The hair shaft is actually what you look at under a microscope. First of all, under low magnification it shows the root area. Also diagrams out the follicle or the area of the skin where the hair is growing, the hair shaft and the tip of the hair. Each of these areas all have characteristics and have a particular look about them that is useful when comparing hairs between a crime scene and from an individual. Now, the enlargement beneath it shows an area of that hair that is magnified. Always keep in mind that these diagrams are two-dimensional structures, two-dimensional pictures. You are not saying--they are in fact cylinders, hairs of cylindrical type objects, and this is only working at one particular plane. The examination involves what is called optical cross-sectioning. By focusing up and down with the microscope you actually look all at the characteristics from the bottom of the slide as it is laying on the slide to the top of the hair. Now, that diagram shows that the hair has an outer layer of scales called the cuticle. Now, these scales always overlap in the direction of the tip. Any abuse, damage, blow drying, being from a dry environment, all affect the way the scales will protrude away from the hair shaft. Some individuals, they lay very close. Other individuals, they are--they are separated to a great extent, so the degree of scale protrusion is a consideration. Now, this is colored for your--for your enjoyment, I guess. It is actually not brown. The--the color of the cuticle is something that would be considered, for instance, if a person treats their hair, they dye their hair or even if they alter the color in some way, it is possible to determine when that treatment may last have been applied by considering the length of growth of that--the length that the hair has grown since the application of the treatment, so about a half an inch a month, you get an idea how far back the treatment was applied and this may be important in a case, depending on the circumstances. Now, the cuticle can be very thick, it can be very thin. It may have a very distinct border underneath it. Other times it looks like it blends very evenly with the underlying structure, which is called the cortex. Now, most of the hair is called the cortex. It is kind of like a pencil. The paint on the outside of the pencil is the cuticle. All the wood, that is the cortex, and the lead portion of the pencil, that is the central structure called the medulla. Now, in the cortex there are pigment granules. They help to give the hair color. The pigment granules can be different sizes and shapes and they can be stripped in certain ways within the hair. Black people the pigment granules are tightly grouped and often very dense. In Asians, the hair--the cortex may be quite a bit larger, it may have a reddish coloration. In Caucasian individuals you have a pretty good range. The distribution of the pigment is a consideration. Red-haired people the pigment is always grouped down toward the middle, down toward the medulla, but most everybody else it is grouped outside toward the cuticle. Now, also in this cortex you will have air bubbles called cortical fusi, scientific term, but they are just little air bubbles, and these little air bubbles can appear in different sizes and shapes and different places of that hair.

It will be something to look at and consider when you are comparing a questioned hair with a known hair. Sometimes the pigment is found in large groups and it looks like a solid structure and it is called the ovoid body. Some people have a lot of these. They may be all black. Some people have amber colored ovoid bodies, they could look like little footballs inside the hair shaft. They may look like circular structures. It just depends on the individual. If they are there, how many of them, where they are at, it might be something that is the characteristics of that person's hair. In the center of the hair is call the medulla. It may or may not be present. In head hairs sometimes you see it; sometimes you don't. With a Asian individuals the medulla is often very thick and continuous. If it looks black under the microscope, and I believe in this diagram it looks black, that is because there is air surrounding that area of the hair and the light from the microscope won't get through it, so it may look black. Sometimes there is no air, it will look clear, it just looks like a clear river running down the middle of the hair.

Now, it may be continuous, it may be broken, it may be in large lengths or it may be in small groups and there would be just trace consideration of the appearance of that medullary structure. And that is about what hairs look like.

MS. CLARK: Well, based on what you are saying then, sir, these characteristics of the cuticle, the cortex and the medulla, vary between individuals?

MR. DEEDRICK: Well, yes they are.

MR. BAILEY: Objection as leading, your Honor.

THE COURT: Overruled.

MS. CLARK: Would you be able to draw for us some of the ways in which you have seen it vary?

MR. DEEDRICK: I would be happy to.

THE COURT: Miss Clark, is it possible that we could do this here so that counsel can see what is being drawn at the same time?

MS. CLARK: I think we certainly can, but I think it might inhibit some of the juniors from seeing.

THE COURT: Well, we need to try to get as many people at one time to see this.

(Brief pause.)

THE COURT: All right. 165, can you see that?

JUROR NO. 165: Yes, sir.

THE COURT: All right. Thank you. Proceed.

MS. CLARK: Thank you, your Honor.

MS. CLARK: What color would you like?

MR. DEEDRICK: Well, black is fine.

MS. CLARK: There is also a thinner one here.

(Brief pause.)

THE COURT: Miss Clark, what would you like Mr. Deedrick to draw?

MS. CLARK: What would you like to draw first?

MR. DEEDRICK: Would you like me to step down and draw for you, please?

MS. CLARK: Yes, I would like you to step down.

MR. DEEDRICK: We talked about the diagram. I will just kind of redo this a little bit for you just so we can fill in the blanks. That is that magnified area of the hair shaft. The cuticle is the outer structure and again consider this to be a cylinder or three-dimensional structure. The scale protrusion may be great or it may lay very flat and you might not even be able to see where the edges of the scales lie. Again, the color, the thickness of the cuticle, the pigment granules, appear to be dots inside the cortex of the hair. Now, with gray-haired individuals you won't see them. If a person bleaches their hair, you will see them, but they will just be light. Pigment granules can be in groups. They help to define racial--the racial group. Clumping of pigment into groups within the hair shaft is characteristic of black individuals, but not all black individuals have heavy clumping of pigment. Some do; some don't. When I speak of microscopic characteristics, we go from models. Always go from a model. We have a model for the Caucasian, we have a model for black individuals and we have a model for Asians, but they don't always follow the model. However far they go away from the model, that makes it a little more difficult determine race.

MS. CLARK: And sir, why do you determine race? What is the point of that?

MR. DEEDRICK: Well, race is determined primarily for investigative purposes. That is first stage. You may have a hair that is recovered on an item of evidence in a case and they want to know who may have committed the crime. From an examination of the hair some direction may be given to the investigator by the lab examiner. It might help them in determining who they should be looking for perhaps. The bottom line in our work is comparison. You may be a little off in saying the exact racial group or maybe some of the other characteristics of the individual. You really can't go too far beyond what the hair looks like. But when we get the individual and you compare the hairs, that is the bottom line for us, if the hairs are the same microscopically.

MS. CLARK: Other than that, it is just a factor among other factors that you consider in determining what matches--excuse me--what can be associated and what cannot?

MR. DEEDRICK: Right. It is just the first stage on the microscopic examination of a hair, and I have already discussed this, is animal, human, body area and the internal characteristics just become part of your internal memory as you are doing the examination. Side-by-side comparison of the actual questioned and known hairs is the ultimate tool that is used for this comparison. Air spaces, they look like little air bubbles, they may be round and circular or they may be long streaks, and where they are in the hair shaft, if they are down near the base of the hair, down near the root here or if they are out near the tip or however they are distributed. I mentioned ovoid bodies you recall. They are called ovoid because many of them look oval-shaped and they may be black, but also can be round and large. I found that as a person gets older these tend to show up more. The air spaces tend to show up more. That is just a characteristic. The medulla in the central part of the hair, you saw the diagram, it was continuous, it was pretty broad. This can be real thin and can be much larger and it can be broken or just continuous. Again some hairs may not even have that. Now, this being an enlargement of the hair, if you go back to the original shape of the hair, from the root out to the tip there are characteristics in this area, the shape of the root, the length of the root, the presence of pigment in the root, if there is tissue around it indicating perhaps how much the hair came out of the body, the shaft shape. With black individuals the shaft of the hair is often very flat, often brittle. It will break quite easily and sometimes even split right down the middle of the hair.

With Asians, often very large, circular, and again I'm talking about the model here. The medulla, quite a bit larger, very thick cuticle, they lay very smooth and straight. Very characteristic of the hair shape. Caucasians may be somewhere in the middle. They can be round or they can be kind of even flat, depending on the person. This particular shaft may be curly, may be wavy and that has a lot to do with just the shape of the hair itself. But some hairs have what's called a shoulder, and it is just appearance of the hair, and again you think of this in terms of an entire hair and thinks your little shoulder area here, (Indicating). You can see that microscopically and that hair may be really kind of kinky and curly, but these are some of the characteristics. I look at the tip. If the tip has been cut with scissors, been cut with a razor, if it is a natural taper, if it is splintered, all of these things are considered; length, color, internal microscopic characteristics, the shape of the shaft, you look at everything that is there.

MS. CLARK: Thank you. Could we ask that this be marked People's 460, your Honor?

THE COURT: People's 460, diagram.

MS. CLARK: Thank you.

(Peo's 460 for id = diagram)

MS. CLARK: All right. You were referring earlier to a couple of terms. You referred to a known standard.

THE COURT: Excuse me, Miss Clark. Are we are going to need that, because we are shielding out juror no. 7?

MS. CLARK: Why don't I just move it back.

(Brief pause.)

MS. CLARK: You spoke of known standards, sir. Can you please tell us, define what you mean by that?

MR. DEEDRICK: Well, with regards to hairs now, a known standard is a collection of hairs that are taken from a particular area of the body of a human being. Known hair standards can be collected from the pubic region, often helpful in sexual assault cases. Head hairs from the head region and some hairs may also be taken from other body areas, from the arms or legs, which are called limb hairs, axillary, underarm, chest hairs and other body areas.

MS. CLARK: Well, I was going to ask you about limb hairs. Let me ask you that later. Right now can you please tell us, sir, how you begin, how you conduct an examination of hairs?

MR. DEEDRICK: Well, back again a little bit here, we--the first thing I do, once the hairs are prepared on glass microscope slides, is to examine the hair to determine animal, human, racial origin and part of the body it came from. I do that with all the questioned items. The questioned items may be from the clothing of the victim and it may be several items and they are all mounted on separate slides. The clothing of the suspect, again they are mounted on separate slides. I go through starting at Q1, questioned item no. 1, and I move through the case getting an idea as to what kind of hairs I'm seeing on the victim's clothes, what kind of hairs I'm seeing on the suspect's clothes. I then go to the known hairs. I examine the known, describe them in note form, but the notes are taken just for me to make sure that I look at everything and also to highlight some of the characteristics that are being seen. And ultimately take the questioned hairs using a comparison microscope and comparing them with that instrument.

MS. CLARK: All right. Would you please describe the process by which hairs and fibers are mounted on slides.

MR. DEEDRICK: Sure. The hairs and fibers that are recovered from the clothing of an individual are often retained in either paper folds or in plastic pillboxes or however. That--let's say a pillbox is taken to a stereomicroscope and then examined carefully to see if there is anything in it. Are there hairs in it? Are there fibers in it? What else do I see? And then those hairs are removed individually. Now, before you start even working on this, that whole area is cleaned off and you make sure that there is nothing on it that is going to be added to your case. A clean glass microscope slide is placed down on some clean paper. The hairs are then removed individually and mounted on that slide. The first thing I do is I place a thin film of solvent called xylene and it allows the hairs to stick to it.

MS. CLARK: May I interrupt you, sir? We have photographs. Would you like to narrate the photographs so the jury can see the process?

MR. DEEDRICK: That would be fine.

MS. CLARK: Okay. Can I ask that this series of photographs be marked collectively as People's 461, your Honor.


MS. CLARK: And this will be a.


MS. CLARK: Thank you, your Honor.

(Peo's 461-a for id = photograph)

MS. CLARK: Can you please tell the jury what we see in 461-a.

MR. DEEDRICK: Well, we see an examiner that used to have dark brown hair, but he has changed a little bit. Hairs do change a little bit. But what I'm doing here is looking through the stereomicroscope and looking at a pillbox that contains hairs and fibers that may have been collected from a particular item of evidence. The stereo binocular microscope allows me to look at the material from a three-dimensional look. The--the mechanics of it or the optics are set up in such a way that you are looking at it three-dimensionally so you can focus up and down and see what is underneath things.

MS. CLARK: Can you tell us what is being done in this picture? 461-b, your Honor.


(Peo's 461-b for id = photograph)

MR. DEEDRICK: Here you see the examiner removing a hair from the pillbox in preparation for placing it on the glass microscope slide.

MS. CLARK: Okay.

MR. DEEDRICK: Each hair would be measured. I mean, there is a ruler generally laid down for the purposes of determining the length of the hair before it is mounted on the slide.

MS. CLARK: Now, you are using a pillbox there to contain the hair and fiber that you recover from evidence. Have you ever heard of people using paper bindles to contain hair and fiber collected from evidence?

MR. DEEDRICK: Well, I never heard the word "Bindle" until I got to this case, but we've always heard them as druggist folds or paper folds, so if you want me to call them a bindle, I will call them a bindle.

MS. CLARK: You don't have to call them. You can call them paper folds. You have seen that before?

MR. DEEDRICK: I have seen them come all kinds of ways.

MS. CLARK: Is there anything wrong with collecting the hair and fiber that is recovered from evidence into a paper fold instead of a pillbox?

MR. DEEDRICK: No. I think it is just easier to work with a pillbox from an examiner's standpoint because you can actually see what is in it, but paper folds are fine.

MS. CLARK: And paper folds are what you received from Susan Brockbank of LAPD in this case?

MR. DEEDRICK: I did, yes.

MS. CLARK: Please tell us what we are seeing here in 461-c.

(Peo's 461-C for id = photograph)

MR. DEEDRICK: Okay. I have already mentioned that once you take the hair out of the pillbox, you place it on the slide with some forceps.

MS. CLARK: Okay. Do you ever do that with your hands?

MR. DEEDRICK: You can use your hands, sure. You may have to--you may have to hang onto the end of the hair when you are measuring it. Hold one end and hold another with the forceps or you can use two forceps. You always have to be careful with forceps because you can pinch the hair, you can break the hair, but it is kind of a little delicate operation. But, yeah, you can use your hands. As long as your hands are clean, that is not a problem.

MS. CLARK: And in this photograph, sir, 461-D.

(Peo's 461-D for id = photograph)

MR. DEEDRICK: Okay. Once the hair has been positioned on the glass slide and this glass slide is like one inch by three inches and on one end there is an area that you can write on it as to what you are putting on this slide, you place the hair on it, you blot out the excess solvent with some blotter paper and you place a few drops of permount which is a mounting media like glue, a yellowish substance. You don't really see the color microscopically, but you place three or four drops on the slide and you lay the coverslip down on top of that.

MS. CLARK: Okay. Now, the xylene that you mentioned before, a solvent--is that the process being shown in this photograph, 461-E?

(Peo's 461-E for id = photograph)

MR. DEEDRICK: Right. This would have been the step just prior to putting on the permount.

MS. CLARK: Why is it used? Why do you do this?

MR. DEEDRICK: For one thing, it blends with permount, it mixes with it. You couldn't use water. You would have do use something that would mix with the glue type substance you are using, so actually just to hold the material in place. You are working with fibers. You can't put a fiber down on a clean--just dry glass because the slightest air movement could move that fiber off the slide, so you just use it to stick things on the slide while you are moving--you are taking material out of your paper fold or your plastic pillbox or from a hatchet or whatever you are taking it off of just so you don't lose it.

MS. CLARK: Does either the solvent xylene or permount affect the hair or fiber in any way in terms of its appearance? Does it alter or damage it?

MR. DEEDRICK: No, just allows you to see it better.

MS. CLARK: How--let me ask you about that: When you--if you were to examine a hair or fiber mounted on a slide with water instead of permount, would that be a good or bad thing?

MR. DEEDRICK: I wouldn't do that.

MS. CLARK: Why is that?

MR. DEEDRICK: I wouldn't recommend it either, because there is too much contrast. If the hair or the fiber--these other materials have properties that do not--are not very clearly visible when you use water and you can use some other materials, too, but if the properties of that liquid are such that it is quite a bit different than what the--the item you are looking at is, you will have a large amount of contrast and you won't be able to see actually inside the characteristics of that material.

MS. CLARK: Okay. Might the use of a water mount also inhibit or affect your ability to determine how many hairs you have on a slide?

MR. DEEDRICK: Well, very easily, especially when you are using coverslips and that--that material could--could move very quickly over to the edge and you would be near the edge of the coverslip. You wouldn't even know it was there, because there would be so much contrast, but if a hair might be laying right next to another hair or on top of it, it may even look like an extension of the hair. You really couldn't even see that, whether there was one hair or two hairs or however many.

MS. CLARK: Prior to beginning your mounting process, sir, do you make any effort to determine how long or how short the hairs are that you are going to mount?

MR. DEEDRICK: Yes. I have that ruler down there and I measure the hair and put it on a slide and make a notation. Most of the slides that are prepared I--I make a note of the longest hair that I place on the slide. Sometimes at a later date this is not--may not work out so well because the hair that you find that looks like the individual known standard may be shorter than that measurement. You might say under six inches or so on the slide and the hair that you are looking at is two inches and you have to go back with some thread and try to figure it out and it works out pretty well. And you can take the slide apart anytime--well, maybe not anytime, but at least during the time you are still working with it because it is still workable, it doesn't set like through real hard, real fast, but you may have trouble ten years from now.

MS. CLARK: Because by then it gets set?

MR. DEEDRICK: It gets set, right, after about ten years. It is semipermanent initially.

MS. CLARK: So the slide that you create will create the initial examination and re-examination for hairs and fibers mounted for quite a long period of time?

MR. DEEDRICK: Sure. And quite often examination material may have to be removed from that slide so I may make a crack in the coverslip. A coverslip is just a very, very thin sheet of glass that fits on top of the slide just to hold it in place and a little tap with the scribe allows a crack to form and then you can remove carefully the material that you want without disturbing the rest of the slide.

MS. CLARK: But you would be able to tell then that the coverslip was cracked?

MR. DEEDRICK: You couldn't miss that.

THE COURT: All right. Ladies and gentlemen, we are going to take our break for the noon hour. Please remember all of my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you or allow anybody to communicate with you with regard to the case. We will stand in recess until 1:00 p.m. All right. Mr. Deedrick, you are ordered to come back at 1:00 p.m.

MR. DEEDRICK: Thank you.

(At 12:03 p.m. The noon recess was taken until 1:00 p.m. Of the same day.)


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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Anything we need to take up before we invite the jurors to join us?

MR. COCHRAN: Two quick things, your Honor.

THE COURT: Mr. Cochran.

MR. COCHRAN: Your Honor, we were not on the record, but at side bar we had an indication from the People regarding their list of witnesses to the end of their case, and I would like to do that on the record if we could at this point, what Miss Clark told us with regard to not having further witnesses, except for Miss Brown, so we can make it clear so we know where we are going to go.

THE COURT: Miss Clark?

MS. CLARK: That's correct.

THE COURT: Mrs. Brown?

MR. COCHRAN: Mrs. Brown.


MR. COCHRAN: Possible last witness and I indicated the possibility that there may be a stipulation if she is interested in that.

MS. CLARK: We will discuss that.

MR. COCHRAN: The other thing, your Honor, I want to show Miss Clark something and then just address another issue.

THE COURT: All right.

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

MR. COCHRAN: Your Honor, what I wanted to point out just a couple things to Miss Clark. I was showing her in some photographs we have from them. You remember the issue we talked about yesterday about the photograph of Mr. Simpson that was on the board, and I'm not usually one to belabor issues, but in their very photographs, your Honor--why are you looking up, your Honor, like that?

THE COURT: That was a rolling of the eyes.

MR. COCHRAN: A rolling of the eyes. Your Honor, with regard to this, there is a photograph that they wanted to show. There is a photograph right next to it in the book, and I would like for you to see these two photographs, and it seems to me, if they want to be fair, they would show this photograph in my left hand as opposed to this one, and they took the one where he looks the worse and they were taken at the same time but one has a scowl or whatever. And it seems to me that fundamental fairness would require them to choose one at least to be fair and that is the thing we are talking about. Would you mind looking at these two and see if the point is not well taken? I showed them to Miss Clark and she indicated she had not seen them. It is from her book.

THE COURT: I will take a look at them.

MS. CLARK: The boards are done, your Honor. It has all been completed now. I would point out also that we had a choice of Ronald Goldman serious picture and one of which he was smiling and also selected the more serious picture in his case. But I didn't know there was another booking photograph, but the board is complete and--

THE COURT: When do you anticipate getting to that?

MS. CLARK: I don't know. It depends on how long--

THE COURT: Well, we are going to go straight through to three o'clock. Do you anticipate getting to this before then?


THE COURT: Let's proceed. Let's have the jurors.

(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. Mr. Deedrick, would you resume the witness stand, please.

Douglas W. Deedrick, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: All right. Good afternoon, Mr. Deedrick.

MR. DEEDRICK: Good afternoon.

THE COURT: You are reminded, sir, you are still under oath. And Miss Clark, you may continue with your direct examination.

MS. CLARK: Thank you, your Honor. Good afternoon.

THE JURY: Good afternoon.


MS. CLARK: Okay. When we last left off you had indicated you--you had finished telling us about how you will mount hairs and fibers on slides.

MR. DEEDRICK: All right.

MS. CLARK: After you complete the mounting of the hairs and fibers, what do you do with the completed slides?

MR. DEEDRICK: Well, the slides are placed individually on a slide holder in numerical order. From that position they are taken to a research microscope for examination under a low magnification and then through the whole process.

MS. CLARK: Now, do you change paper between the preparation of each slide?


MS. CLARK: And were all of these slides prepared in the manner you have described in this case?

MR. DEEDRICK: They were.

MS. CLARK: Did you mount all of the hairs and fibers that were found in the paper folds on slides?

MR. DEEDRICK: I did not.

MS. CLARK: Why is that?

MR. DEEDRICK: Well, some of the hairs that were found or fibers that were found were consistent with others that I had mounted from the same material, such as from the gloves. And there were some fibers, animal fibers that were present. I didn't mount those.

MS. CLARK: Okay.

MR. DEEDRICK: Sometimes representative samples are prepared from material.

MS. CLARK: Nevertheless, are all of those fibers and hairs maintained, whether they are on slides or not?

MR. DEEDRICK: Right. They are either on the slide or they are in the original folded paper.

MS. CLARK: And so if anyone wants to reexamine them in the future they can do so, whether in slide or paper?

MR. DEEDRICK: Yes, they could.

MS. CLARK: Okay. Who mounted the questioned hairs in this case?


MS. CLARK: And were the known standards, that is, the samples taken from people's heads and from various clothes, were they mounted using the same procedure you have just described?

MR. DEEDRICK: They were.

MS. CLARK: And who did the mounting--

MR. DEEDRICK: Well, the original--

MS. CLARK: --of the known?

MR. DEEDRICK: The original known set of hairs was prepared by Susan Brockbank of the Los Angeles Police Department crime laboratory. All of the other known samples that I received later I prepared.

MS. CLARK: Okay. So then when you say the original known sample, who are you referring to?

MR. DEEDRICK: That would have been from the--from the Defendant and also from the two victims.

MS. CLARK: Ronald Goldman and Nicole Brown?

MR. DEEDRICK: That's right.

MS. CLARK: When Susan prepared those slides of their hair standard was she in the same room with you?

MR. DEEDRICK: Yes, she was.

MS. CLARK: She was at the same desk top as you?

MR. DEEDRICK: She was at a technician position which is in front of my desk.

MS. CLARK: Did you observe the procedures she followed?

MR. DEEDRICK: I did. I gave her some instruction as well as to how I would like to see the slides prepared.

MS. CLARK: And did she do so according to your direction?

MR. DEEDRICK: She initially started using her own just out of habit and we decided and it was more time saving to do them the way that we normally do them.

MS. CLARK: Okay. Now, do you mount more than one hair or fiber on a slide?


MS. CLARK: How many do you usually mount of either hairs or fibers on one slide?

MR. DEEDRICK: Well, with hairs it just depends on the racial origin, the length of the hair, the thickness of the hair, the curliness of the hair. It has a lot to do with it. There could be five, there could be three, there could be fifteen. It just depends upon the hair.

MS. CLARK: And what do you mean by that it depends upon the hair? Do you group them?

MR. DEEDRICK: Well, if a hair is removed from some debris and it is twenty inches long and it is from an Asian, you know it is going to be a big hair. I might only, you know, mount one hair on that slide because it takes up a lot of the space. You are only given a less than one inch by three inch space to mount that material, but if you have shorter hairs that are, let's say, half an inch long, for instance, from a black individual or from a white individual, you might be able to prepare more. You don't want the slide--the coverslip and the permount to be too thick, otherwise it is kind of like floating around in a submarine trying to figure out where these hairs are. You want to make a pretty flat mount, so it depends on the hair.

MS. CLARK: Do you--okay. Well, at the time that Susan Brockbank was mounting the known standards on slides, what were you doing?

MR. DEEDRICK: I was looking through the questioned debris, the questioned material, and preparing slides myself.

MS. CLARK: What is the possibility of any of her--the known standards she was working on jumping over onto your slide on the other desk?

MR. DEEDRICK: No, that is not a possibility. The--too much space in between and there are no air currents to speak of in that room.

MS. CLARK: Can you describe that room a little bit?

MR. DEEDRICK: Well, the room is about probably 12--15-by-15. There are two examiner's positions and in front of--in front of the examiner's positions are the technician positions, so each room will have two examiners, two technicians and there will be microscopes at each location.

MS. CLARK: So is it common to have two people working on slide mounting at the same time in that room?

MR. DEEDRICK: There could be four people mounting--working on slide mounting, slide preparation.

MS. CLARK: Now, after the mounting is completed, what happens next?

MR. DEEDRICK: Well, once the slides are prepared they are again laid out in numerical order and I follow the process of looking at the questioned material first, I try to look to see what do I find at the crime scene, what do I find on items from the victims, and then I move to the accused or the suspect in the case and then I look at the known standards in that order.

MS. CLARK: Okay.

MR. DEEDRICK: I just want to see first what I have. In the slide preparation, normally the slide preparation goes questioned material first and then known and that is to avoid having the known exposed.

MS. CLARK: So you deliberately separate by starting with the questioned hairs and fibers?

MR. DEEDRICK: Well, you do everything you do to avoid any possible contamination. You are concerned about that. We know the risk that is involved with contamination, so you take every effort possible to avoid that so that what you are seeing is actually what was on the item.

MS. CLARK: And you did that in this case?

MR. DEEDRICK: Every case is treated that way.

MS. CLARK: You see a photograph before you. I would ask, your Honor, that it be marked 462. This will be a series. Could I ask that it be 462-A?

THE COURT: All right. 462.

(Peo's 462-A for id = photograph)

MS. CLARK: I think we already saw this marked as 461.

MS. CLARK: But is this the--no, we didn't.

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

MS. CLARK: This is new.

MS. CLARK: Can you tell us what is shown in this photograph, sir?

MR. DEEDRICK: Well, here the examiner is looking at the slide using the stereomicroscope. It may be the first step for some examiners to examine that slide in that way. Low magnification, we start it at about, it could be ten "X" and go up to maybe 40 or 50 times magnification.

MS. CLARK: Now, in this initial examination you are looking for what?

MR. DEEDRICK: Well, you are looking for--if you are looking at hairs, mainly racial characteristics can be distinguished; length, color, shape, contour, appearance of the tip, appearance of the root. It is easier to say in that instance, perhaps, the apparent shape of the hair itself, the three-dimensional shape of the hair, because you are looking at it in three dimensions, but it is just a low screen--low magnification screening tool to look through the hairs to identify which hairs that you may want to look at under higher magnification.

MS. CLARK: Is it at this point that you determine--is there such a thing not suitable for further analysis or comparison purposes?

MR. DEEDRICK: Sure. There are hairs that aren't worth comparing.

MS. CLARK: And why would that happen?

MR. DEEDRICK: Well, there are head hairs, pubic hairs and some facial hairs are routinely the hairs that are compared microscopically. Hairs from the arm, from the leg, body hairs, for instance, for instance, from the trunk, the back, the eyes, eye hairs, eyebrows, eyelashes, these hairs are not routinely compared in forensic laboratories, nor are they compared by us routinely. It may be of some interest in some instances where someone may be hit with like a club, hit in the face, and on the club you find eye hairs that are imbedded in the club, then that takes on a little more significance, but looking at debris found on clothing or from vacuum sweepings from a floor, they probably shouldn't play a very significant role in any hair identification.

MS. CLARK: So what--what is it that causes you to determine whether a hair is or is not suitable for comparison purposes?

MR. DEEDRICK: Well, if they fall into the categories of the types of hairs worth comparing, it is just experience and the hair itself. You look at the hair, you determine from experience if it is worth comparing, there is enough of the hair to work with and if it is again from that region. And some hairs are very distinctive. You might not need a whole lot of hair to make a comparison.

MS. CLARK: So you are looking to have a sufficient quantity of distinctive characteristics?

MR. DEEDRICK: Well, there is no set number of characteristics that are needed to make a comparison. That is up to the examiner and the experience of the examiner and how many hairs they have seen, what types of hairs they have seen, what is unusual, what is usual. And based on all that the decision is made to determine--as to whether or not to compare it with a known standard.

MS. CLARK: Now, the next slide--excuse me--the next photograph that is on the screen now, 462-B, can you tell us what is being depicted in that photograph?

(Peo's 462-B for id = photograph)

MR. DEEDRICK: That is just a close-up of the slide. It is difficult to see perhaps by the slide on the stage of the stereo binocular microscope?

MS. CLARK: And 462-C.

(Peo's 462-C for id = photograph)

MS. CLARK: Can you tell us what do we see in this photograph?

MR. DEEDRICK: Well, here the examiner is sitting at the comparison microscope and that is the main--really one of the main tools of the unit and that is the tool that is used to take a questioned piece of material, like a hair or a fiber, and compare it in the same field of view with the known material. For instance, if a hair were recovered from a weapon or from an item, it would be mounted on a glass microscope slide. Now, that instrument--there are two microscopes there. One microscope would be used for the questioned slide. The other microscope would be used for the slide containing the known hairs from the individual. And by looking through the eyepieces, which he is doing here, those eyepieces will allow you to see both of the layers at the same time. The same type of comparison is done with fibers. You are comparing questioned material, known material in the same field of view. More people are familiar with comparing bullets. I mean, I grew up and that is all I ever saw on TV shows, was comparing scratch marks on bullets to see if this bullet came from this gun and they would line up the striations and you could see them. And the difference here is that the material that we are looking at, we are looking through it and inside of it to look at the characteristic because we are using transmitted light and not reflected light.

MS. CLARK: Now, do you count the number of characteristics that you find in hair samples?

MR. DEEDRICK: I don't, no.

MS. CLARK: And why is that?

MR. DEEDRICK: Well, I don't necessarily think there is a minimum number of characteristics that one needs for making an identification. You look at everything. You look at all the characteristics that you see, and based upon all of these things that you are looking at, an opinion is reached based on that, not on how many notes you take, not on how many points that you write down in your notes. It is actually based on what you are seeing.

MS. CLARK: So what component does experience, the number of hairs that you have compared and looked at in your--in your tenure as an examiner, what component does experience in that play in all this?

MR. DEEDRICK: Well, a good hair examiner has a lot of scope time, has a lot of time looking at hairs. The more things you see, the more value judgments you can make regarding what something is worth. We do this everyday ourselves in your own everyday experiences, and I just do it from a microscopic standpoint. We value things all the time and I place value or importance on certain characteristics that I see under the microscope, so the more time you have, the more decisions you can make that are of value, but still, people that come through the training after a year are still going to be seeing a lot more hairs than what many people would ever look at, and within several years they have a pretty broad base, but I have seen obviously a lot more.

MS. CLARK: Now, as you examined--you talked about notes, sir, as you examine the slide are you taking notes about what you see?

MR. DEEDRICK: I take notes on again the questioned items first. I look to determine if there are hairs present, the type of hair, animal, human, race, body area, the condition of the root, approximate length of the hair, how--if the hair had any treatment. I may indicate if it is not suitable for comparison or suitable for comparison and I just move through the material that way from item to item until I get to the known. The known hair slides are examined more carefully at this point because I want to make sure I have a good idea in my mind of the characteristics of this individual. I then can go to the comparison scope and make the comparison. It doesn't--it doesn't take--the comparison scope initially, once you get through to the questioned material, you have a pretty good idea what the hairs of this person look like, what the hairs of this person look like, because they are on their own clothes. When you get to the known hairs, you look at the characteristics and the lights go on, "I have seen that hair before. I have seen those hairs before" and you just go back through the questioned material and compare them side-by-side.

MS. CLARK: And when you said "Side-by-side"--

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

MS. CLARK: We have a chart, your Honor. I would ask that it be marked People's 463.

THE COURT: All right. 463.

(Peo's 463 for id = chart)

MS. CLARK: Can you tell us, sir, what this chart shows us?

MR. DEEDRICK: Well, it kind of gives you an idea of what you are looking at through the--through the comparison microscope, and essentially it looks like that first chart you saw with a line drawn down the center and that is the dividing line between your two microscopes. The best possible match, the one you try to really get, is where you have a mirror image set up that the hair on the left, which is here the known hair, and the hair on the right, which is the questioned hair, if you looked at them together, they would appear to be one hair and that is what you try to do when you are trying to determine if a questioned hair looks like the known hairs.

MS. CLARK: And that is the field of vision that you have, that circle with a line through it?

MR. DEEDRICK: You can see the hair kind of goes outside the circle, but the field of view is a circular field, a white background, and it has a center hairline down the middle which separates your two specimens or your two microscopes.

MS. CLARK: Now, is everyone's hair the same--for example, my hair, okay, I have--I almost lost it. We have one hair. If I pull out this one hair over here, is it going to look the same as, say, a hair over here, (Indicating)?

MR. DEEDRICK: With your hair they probably are going to be pretty close.

MS. CLARK: Are you commenting on something?

MR. DEEDRICK: Yeah. With most people there is pretty good range. I mean there could be a range from--you might have a dark hair a coarser hair on one side and you might have a finer hair on the other side. That is why we require that--that the Coroner or whoever is collecting the hair samples from the individual take a--pulls from different areas of the head as well as combings, because you have a couple things working here. You have hairs that are actively growing and you have hairs that are ready to fall out and then don't look the same. They look a little different. So I request that we get at least 25 to 30 pulled hairs and then take combings as well, so that you can get a good idea as to the types of hairs, that if they were pulled out, what they would look like, and if they fell out naturally, what they would look like, and use all of these hairs in forming an idea about the characteristics of the known hair.

MS. CLARK: So then is there like a range of characteristics for each person's hair?

MR. DEEDRICK: There is a range of characteristics, sure, and when I look at the individual hairs from a sample, I--I determine what the average hair is. You can do that. You can look at them and say, well, I see hairs that pretty much fall within a pretty narrow range and you are going to have some hairs that are outside on the outside or edge of that range, but you include all of those into the characterization or the analysis or the story line that you are writing on these known hairs. This range of characteristics, though, from my experience, is a much narrower range than what you see out in the population, out in other people.

MS. CLARK: Well, let me ask you to amplify that a little bit more, because if each of us has a range of characteristics, couldn't a hair from the back of my head match the hair from the front of another juror's head or Mr. Darden's? You know what I mean? If there is a range--I shouldn't bring Mr. Darden into hair discussions. I won't do it any more. You know what I mean. If we all have a range, isn't there going to be an overlap? How can you say that my hair didn't come from someone else?

MR. BAILEY: Objection, speculative.

THE COURT: Overruled.

MR. DEEDRICK: Well, as I said, there is a range with each person. Everybody has a range of characteristics. Some people have a broad range, some people have a lot of hairs that look very similar to each other. It makes it a little bit easier if they are closer together than if they are far apart, but the overlapping suspects, you might say a hair that you find on one person's head, it may have some similarities to another person's hair. There may be some overlap, but it won't match. I mean, it may look somewhat similar, but it won't exhibit the same microscopic characteristics.

MR. BAILEY: Your Honor, I'm going to object and move to strike the word "Match."

THE COURT: Well, the jury is ordered to disregard the use of the term "Match."

MS. CLARK: Can we replace that with the term "Same microscopic characteristics"?

MR. DEEDRICK: I meant to say they won't exhibit the same microscopic characteristics. That is, they won't look the same.

MS. CLARK: Now, you mentioned, you know, that my hairs would probably look very similar. You are referring to color treatment, correct?

MR. DEEDRICK: I think the color treatment would be a big help, yes.

MS. CLARK: You could see if someone had color treatment in their hair under the microscope?

MR. DEEDRICK: Oh, very easily, yes.

MS. CLARK: But even if someone has color treated hair, some kind of treatment with respect to the color, would you still see some kind of a range of characteristics?

MR. DEEDRICK: Oh, you will, sure, and for instance, some of your hairs may be lighter than others, and they may not have as much pigment. They will take on a much brighter color than a hair that is darker, that has absorbed the same amount of color, so you will see pigment granules, you will see medulla, you will see cuticle, scales, ovoid bodies, you see it all, unless it is so darkly dyed that they are covered up, and that is possible.

MS. CLARK: So when you mount a known hair standard from a given individual, for example, in this case the Defendant's known sample or Nicole's known sample, could you make any effort to assure that you represent the range of characteristics that you have seen in their sample on the slides?

MR. DEEDRICK: That--yes, yes, I do. That selection is made as you are taking hairs from the container, the original container, whether it is using a stereomicroscope or using your own eyes to gauge length, thickness, color and a range. I mean, her hairs, for instance, appear to have some highlighting or treatment to them, so and some hairs didn't appear to have too much, so it is just a matter of collecting hairs that--that exhibited all those characteristics.

MS. CLARK: So that you accurately represent the range of that person's hair?

MR. DEEDRICK: Well, the first thing you do is you mount up what you think is a range, I mean, a good range, and then you go to your material. You may find a hair, for instance, on an item of clothing from that person and you see some--a lot of similarities with the known that you prepared but maybe something that doesn't quite--it looks a little different. You may have to go back and mount additional hairs from the known sample just so that you can increase that range a little bit. You may see something that may not quite be present and you want to clarify it. You may need to go back and mount more hairs. And once in awhile in a case, it happens all the time, that I would call back out to the contributors or the police department and say I don't think you gave me a good enough known standard or I need hair combings, can I have additional hairs, so that I can make sure that what I'm seeing either looks like it or doesn't look like it. I want to make sure of that before I reach a conclusion that it is a valid association or exclusion.

MS. CLARK: Now, during the examination of known standards in any case, do you make any effort to see that you can--whether you can distinguish between the known standard, for example, in this case you had the known standard of Ron Goldman and of Nicole Brown, did you make any effort to determine whether you could tell them apart?

MR. DEEDRICK: This is the first thing you have to do when you are looking at known material, you want to make sure that the people you are going to be comparing the questioned hairs to look different. If they look the same, the conclusions or the strength of the association would be minimized. It could have come from either individual.

MS. CLARK: Well, has that ever happened?

MR. DEEDRICK: Not in case work since I have been working. All the known samples that I have gotten over the years, and there have been quite a few, I have never had a problem being able to distinguish the victims of a case and the suspects of the case and multiple suspects. I've had cases where I've had two or three or 400 known hair samples as elimination or possible suspects to compare with questioned hairs found at a crime scene or on a body of a young child, a victim of a case, and it is a job. One thing you have to do is make sure they all look different and that is--actually it is pretty easy to do.

MS. CLARK: And you have never had any trouble being able to distinguish between two different people's hair?

MR. DEEDRICK: Sample are pretty easy to distinguish. You have some problems with identical twins. Identical twins can be real close, especially if they happen to live in the same environment and they share very many common things, because environment, and diet and how much sun they get, how they treat their hair, all of these things add the differences that are often seen between hairs that may be very close microscopically. A person may take--may be an alcoholic. For instance, we had a case once where there were brothers. Their hairs looked very close but one person had--

MR. BAILEY: Your Honor, I'm going to object. This is way beyond the question.

THE COURT: Sustained. Ask another question.


MS. CLARK: Let me ask you this: How many known hair samples have you examined in your capacity?

MR. DEEDRICK: Easily 10,000, easily.

MS. CLARK: In the course of that experience, sir, have you ever had occasion to examine the hairs of multiple family members?


MS. CLARK: And in that experience were all the family members, were, say, of the same race?

MR. DEEDRICK: They were.

MS. CLARK: Same hair color?


MS. CLARK: What was--how did you distinguish--they were the same--what were they? Were they siblings, were they mother and father?

MR. BAILEY: Your Honor, I object. I don't think that is relevant to this case.

THE COURT: Overruled.

MR. DEEDRICK: Both. I mean brothers, sisters, cousins, aunts, uncles, mothers, fathers.

MS. CLARK: Were you always able to distinguish between them?

MR. DEEDRICK: Yes. You can distinguish between them. Sometimes you will have family members that are pretty close, but for the most part you can distinguish between even siblings or family members again because the characteristics that I look at are not based totally on genetics. I mean, we know that even brothers and sisters, unless they are identical twins, I mean, they don't--they are different. I mean, they just look different and their hairs will tend to look different as part of this unique thing that we have as a human beings.

MS. CLARK: Well, apart from genetics, is there something about the way a person lives that will make their hair distinguishable from another person's hair?


MS. CLARK: For example?

MR. DEEDRICK: Well, a person that has--doesn't wash their hair very much may have dirt and debris and other material in the hair, in the hair shaft, underneath the cuticle or the scales of the cuticle. A person may pick up head lice, pubic lice. You can see those on the hair shaft. A person may have will a lot of damage to the hair. It is not a clean hair, it is subject to a lot of damage. This might be characteristic of the type of person that he is or she is.

MS. CLARK: Say, for example, if you got the known standards from two family members whose hair color was the same and were of the same race, would you be able to distinguish between them based on these other characteristics that you are describing?

MR. BAILEY: Objection, relevance.

THE COURT: Overruled.

MR. DEEDRICK: Well, hair color and race are pretty broad categories. I mean, if you say brown Caucasian as an example, there is a lot of people with brown hair that are white. I mean, just an awful lot, so that is pretty broad categorization. There are other characteristics that you look for besides just color and racial characteristics.

MS. CLARK: Uh-huh.

MR. DEEDRICK: That is where you see the differences.

MS. CLARK: Have you been able to distinguish between the hair of two brown-haired Caucasian people in the past?

MR. DEEDRICK: You do it all the time, in cases that you get in, as well as the tests that you prepare.

MS. CLARK: Well, you were mentioning two brothers, one of which was an alcoholic, earlier. Did that--does that show up in the hair?

MR. BAILEY: Objection, relevance.

THE COURT: Overruled.

MR. DEEDRICK: Habits, alcohol abuse, drug abuse, will affect hair characteristics. There may be characteristics found within the hair shaft that I have seen over the years that--that may be characteristics of that person's habits and sometimes they may be the only characteristics that can be used if they are that close microscopically, but hairs are kind of the dumping ground, all right, kind of the dumping ground of the body.

MR. BAILEY: Objection, nonresponsive.

THE COURT: Sustained. Ask another question.

MS. CLARK: Well, you say hairs are kind of the dumping ground. Will you tell us what you mean by that?

MR. DEEDRICK: Well, it is a structure that materials are excreted or secreted in, so that they can leave the body. A person--as an example, a person has been poisoned, and this has been documented in a lot of cases, with arsenic, that by looking at the hair one can determine arsenic is in fact present in the hair. If a person is a drug user, the drugs will be excreted or secreted into the hair shaft and they can be tested that way and it is a test that is more commonly being used for employment type matters, rather than invade the body with taking blood samples--

MR. BAILEY: Objection, your Honor, nonresponsive, irrelevant.

THE COURT: Overruled.

MR. DEEDRICK: They take hair samples so it is a structure of the body that helps the body get rid of things.

MS. CLARK: Now, in this case I believe you indicated that you initially got the known standards of the Defendant, Ron Goldman and Nicole Brown, correct?


MS. CLARK: And I believe you also testified you were able to distinguish each of their hairs from each other?


MS. CLARK: Did each of the individuals--for example, did Ron Goldman's hair display distinctive characteristics?


MS. CLARK: Did Nicole Brown Simpson's hair also display distinctive characteristics?

MR. DEEDRICK: They did.

MS. CLARK: And also the Defendant's hair?

MR. DEEDRICK: They did.

MS. CLARK: Okay. With respect--start with the Defendant first. Did you find--with respect to those distinctive characteristics, at the FBI do you maintain reference samples, photographs of hairs from people of various racial groups?


MS. CLARK: And for what purpose do you do that?

MR. DEEDRICK: For training primarily.

MS. CLARK: Did you bring one of those charts with you here?

MR. DEEDRICK: I did prepare a chart, yes.

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

THE COURT: All right. 165, can you see that?

JUROR NO. 165: Yes, sir.

THE COURT: All right. Thank you.

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

MS. CLARK: May this be marked People's 464, your Honor?

THE COURT: People's 464.

MS. CLARK: Thank you.

(Peo's 464 for id = chart)

MS. CLARK: So are these all photographs that you have at the FBI?

MR. DEEDRICK: Well, no. Well, I photographed them. Those were hairs of different black individuals, blacks from this country and from Africa.

MS. CLARK: Okay. So tell us what you are trying to demonstrate with this chart.

MR. DEEDRICK: Well, these are hairs that were taken just at random from samples from individuals that were in the reference collection. Some--there is one there from a bushman from Africa, one from a Somali warrior, a couple of them in individuals that work in the laboratory. I think there is a blue hair there I believe is one of them, that is treatment. She is a clerk typist in the unit. There is another one that has a red coloration to it. Again I don't recall what type of treatment that was. Mahogany rinse or something like that. But the other hairs just represent some--some randomness, some random variation that is exhibited between different individuals to show you that the hairs do differ microscopically.

MS. CLARK: Did you also prepare a chart of photographs of Caucasian hairs?


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

MS. CLARK: I would ask that this chart be marked 465, your Honor.


(Peo's 465 for id = chart)

MS. CLARK: Okay. Before we move on to discuss this, let me ask you just a couple more questions. You indicated that the Defendant's hair was distinctive?


MS. CLARK: And what was distinctive about it?

MR. DEEDRICK: Well, it was very light-colored. It had very light pigmentation, prominent one-sided pigmentation, which was prominent in many of the hairs in the sample. There was a number of other characteristics as well, I have them jotted down in my notes, but I felt that those hairs were very distinctive, easy to select.

MS. CLARK: All right. Now, you indicated that with respect to Nicole Brown and Ron Goldman you also found distinctive characteristics and here we have the board 465. Can you tell us what you are showing us in this--in these 16 different photographs?

MR. DEEDRICK: Well, there is a couple things I believe in this chart, trying to show that there is a variation or randomness to the color, to the pigmentation, distribution, to medullation or the medulla that you see running down. Some of the hairs have them; some don't. You may find hairs that don't have a medulla and others that do. Again it just shows some of the variation. The three pictures on the right I had to bring in, they are my daughters' hairs, on the right second one, third one and fourth one, starting from the oldest, to the youngest.

MS. CLARK: Can you step down and show us which ones those are, because I couldn't tell.


MS. CLARK: Do you want to use the pointer?

MR. DEEDRICK: Okay. This is my 17-year old's hair, this is my 13-year old and she was a little upset because her hairs have some damage to it.

MS. CLARK: She didn't want them on TV?

MR. DEEDRICK: She didn't want them on TV and the youngest here has the darker hair of the--of the three. Again trying to show that there is some variation even within a family that they will exhibit different characteristics.

MS. CLARK: Thank you. All right. So you indicated that you examined questioned hairs and then you examine the known and then you go to the comparison process?

MR. DEEDRICK: That's right.

MS. CLARK: And you indicated to us the use of the comparison microscope. Let me ask you this: When you compare the questioned hairs--the questioned hairs that are recovered from evidence at a crime scene to the known hairs of an individual that were collected, would you--what would you say if only one hair from the known standard exhibited the same microscopic characteristics as the questioned hair?

MR. DEEDRICK: Umm, that is a tough one. It depends upon the hair, how many hairs were recovered, where it was recovered. It may have something to do with whether or not it might be reported. If a hair is on the outer edge of the range, a lot of time those are just thrown out. You don't consider them as a potential. And it is just logic and common sense here, what would you expect to see if this guy shed hairs at the crime scene. Well, would he lose hairs like most of his hairs? He won't lose maybe--just strange that he happened to lose one that looks kind of like one of the weird hairs in his head. I would throw it out. I would rather throw him out and not involve him at all in that type of examination.

MS. CLARK: So you try to err on the side of being conservative in your conclusions?

MR. BAILEY: Objection, leading.

THE COURT: Sustained.

MS. CLARK: In forming your conclusions--in forming your conclusions how do you--do you have some kind of standard that you go by in terms of trying to benefit the suspect?

MR. DEEDRICK: Well, it is objectivity, impartiality. You don't get involved with the case. You try to report out truthfully what you see based upon the observations you make, put no concern on the outcome. And it is normally a default mechanism built in. Even if there is any question, you throw it out. You don't try to make a match. It either matches--

MR. BAILEY: Your Honor, I'm going to ask you to instruct the witness.

THE COURT: Yes. Ladies and gentlemen, you are to disregard the term "Match" in this context.

MS. CLARK: You either have the same microscopic characteristics--

MR. DEEDRICK: I have to apologize because some of that comes out naturally, but if it exhibits the same microscopic characteristics, you call it that way. If it--if there is some differences and you can't account for them, you throw it out.

MR. BAILEY: May we approach, your Honor?


MS. CLARK: All right. So for example--well, strike that. We were talking about same microscopic characteristics and when you will form a conclusion, but let me ask you this, sir: Can you say that the hair--that a hair found at a crime scene, even though it exhibits the same microscopic characteristics as the hair taken from a suspect, even though you say that, can you say that it could only have come from this person and no other in the world?

MR. DEEDRICK: No, no. The--we do not say with absolute certainly that a hair came from a particular person no matter where the hair is found.

MS. CLARK: Are there databases that can tell you which source of the population could have been the source of a particular questioned hair?


MS. CLARK: When you say that you don't say that, you don't say that a hair could only have come from one person and no other, why is that?

MR. DEEDRICK: Well, because it--you can see that in some individuals that there are hairs that can be--they can look very similar to another individual, so that in that instance, just because it happens, you can't make a blanket statement and say that it--that it is a positive form of identification. If it happens once, the it happens twice, you cannot say absolutely and we don't say that. Every report that we send out has a statement in it to that effect.

MS. CLARK: Now, is the microscope, is use of the microscope to perform the examinations considered to be the best method of comparing hairs in a forensic community at this time?

MR. DEEDRICK: We think so, yes.

MS. CLARK: Is there any instrumental means of comparison currently recognized as reliable that have gained acceptance in the scientific community, other than microscopic comparison?

MR. DEEDRICK: There have been other techniques, other instrumental methods that have been used, none considered to be useful to individualize hairs.

THE COURT: All right. Miss Clark, are you going to use 465 any more?

MS. CLARK: Not any more. Do you want me to take it down?

THE COURT: Yes. We seem to be blocking juror no. 7.

(Brief pause.)

MS. CLARK: All right. Let's talk about fibers for a minute. Tell us what a fiber is.

MR. DEEDRICK: Well, a fiber is the smallest piece of a fabric, essentially.

MS. CLARK: Are there different kind of fibers?

MR. DEEDRICK: There are naturally occurring fibers such as from an animal. Woolen fibers is a good example. Cotton fibers that come from plants, plants provide textile fibers, and also there are man-made fibers and there are some others, but man made and naturally occurring are the two main groups.

MS. CLARK: We have a chart here, your Honor, it is on the screen. Ask that it be marked People's 466.

THE COURT: People's 466.

(Peo's 466 for id = chart)

MS. CLARK: Can you see the chart, sir, that has been marked as People's 466?

MR. DEEDRICK: I can see it fine.

MS. CLARK: On your monitor?


MS. CLARK: Tell us what is shown on this chart.

MR. DEEDRICK: On the upper right-hand portion of the chart you see what is depicted as a cotton fiber and it is probably the most common plant fiber that we wear. Cotton is used for a lot of other things besides wearing, but it is the most common fiber. It comes from a seed bowl, it is a seed fiber. The fiber beneath is a woolen fiber. It is an example of a wool fiber taken from a sheep. Woolen fibers could come from other types of animals as well. It doesn't have to come from a sheep, it could come from a goat. For example, camel hair, another one, cashmere goat is a good example. It is just an example of an animal fiber.

MS. CLARK: And that is how it appears microscopically?

MR. DEEDRICK: That is an artist depiction of it. Yes, it can. You can see the scales on the outermost portion of the hair. Woolen fibers are hairs, just animal hairs. They look differently microscopically. And some woolen fibers are very fine, not a lot of scale protrusion, they are comfortable to wear, that is what we like to wear. Those woolen fibers that are coarse, that are rough, you might be walking on them, they are not as expensive so we walk on them, but you wouldn't want to wear them.

MS. CLARK: And then manmade?

MR. DEEDRICK: Well, the manmade fiber--it might be a little difficult to pick out here on the right--I mean, the upper left you see what looks like a longitudinal view. If you looked at the fiber underneath the microscope and the borders on the top and the bottom are the borders of the fiber, all right, and it is just cut off at the end. It has in it a number of structures that might be found. Delustering particles may be added to the fiber to take away the shininess of it. It is just a pigment that is added to the fiber when it is produced. They may also have voids or just large spaces with nothing in them or there may have pigment in them, so it is just an example of what you might see in a manmade fiber.

MS. CLARK: Down below that I see shape and cross-section?

MR. DEEDRICK: Well, shape and cross-section are an identifying characteristic, especially of manmade fibers, because the industry decides and produces their fibers for specific end uses. The carpets that you work on may have a much different shape and size or they would, than--than you are--the clothing that you wear on your body. You wouldn't be wearing a rug around, nor would you walk on lingerie, just not that way. There is a design and a purpose for each of the fibers that are produced and certain fiber types have certain shapes and that is depicted there.

MS. CLARK: So does that chart kind of explain to us what you can tell from the microscopic examination of fibers?

MR. DEEDRICK: Well, that is kind of the first thing, right, that has--that you can look at and see right off with a manmade fiber or a natural fiber.

MS. CLARK: That is like your first determination?

MR. DEEDRICK: Just like that first determination with hairs, is it plant, is it animal, is it manmade.

(Brief pause.)

MS. CLARK: Your Honor, I have here a chart that is marked--entitled "Cotton fibers." I would ask that it be marked 467.


MS. CLARK: Thank you.

(Peo's 467 for id = chart)

MS. CLARK: Tell us what this chart shows, sir.


MS. CLARK: Would you like toe step down?

MR. DEEDRICK: It might be easier to see.

MS. CLARK: Sure. Is there a pointer?

(Brief pause.)

THE COURT: Miss Clark.

MS. CLARK: Please tell us about this chart.

MR. DEEDRICK: What I have done here is try to give you an idea of what can happen to cotton fibers that you might wear or you may encounter. Cotton fibers, they are pretty common. I mean, five billion pounds of cotton fibers every year just here in the United States. They go to a lot of different--a lot of different sources. They may go into clothing, draperies, upholstery. There is a lot of end uses for cotton, but the distinguishing features of cotton can be seen in the color, whereas a fiber that is uniformly colored would look different than a cotton fiber that had color at specific intervals or different portions of the fiber. The surface color that is seen in this particular cotton fiber would be characteristic of a printed fabric where the color is added to the surface of the fabric after it is produced. Uniform color might be made or produced when the yarns are coming off, after the yarns have been spun and the whole yarn has dyed. The degree of twist is something that is compared. There is a gray, greige, fiber like a cotton ball. You may see this particular unfinished fiber in blue jeans is a good example. A fiber that is more finished, that has been through a little bit more processing, would take a little bit of the twist out. You might find that in a shirt or a blouse. Mercerized cotton has been treated differently. You find mercerized cotton in threads. It doesn't have very much of these what are called convolutions or twists, back and forth twists that is commonly found in cotton fibers.

MS. CLARK: Thank you. (Brief pause.)

MS. CLARK: Thank you, Mr. Escobar. This is a chart I would ask be marked People's 468.

THE COURT: All right. So marked.

(Peo's 468 for id = chart)

MS. CLARK: Can you tell us--first of all, you told us about the cotton fibers. Now, is this chart about manmade fibers?

MR. DEEDRICK: It is a little bit of education on how manmade fibers are produced.

MS. CLARK: Can you explain to us starting wherever you want? I see the one, the title up to the upper left is "Cellulosic." What does that mean?

MR. DEEDRICK: Well, cellulosic refers to the origin, that is, wood pulp, cotton linters, something that has cellulose or material that is natural as a substrate, as a base material. It is a starting material that you work with.

MS. CLARK: Cellulosic would mean a material substance for the starting material, right?

MR. DEEDRICK: Some of the first manmade fibers that were produced were cellulosic in nature. That is, they started with something that was naturally occurring. They put some chemicals together and they extruded it into a fiber shape.

MS. CLARK: Extruded?

MR. DEEDRICK: Well, if I can step down, I will point that out. Thank you.

MS. CLARK: Please.

MR. DEEDRICK: When manmade fibers are produced they have to start with some beginning substance. Some start with a cellulose-based substance. Others start with other chemicals and perhaps even like a plastic chip. They felt the chip and then they make fibers out of it. But from this beginning solution it is forced under pressure out of what's called a spinnerette. Looks like a shower head and this--the shape of each one of these little holes and the possessing itself has something to do with this cross-section that you see, the shape of the fiber that comes out of it. Dry spinning, it is forced out in air. Rayon, which is a cellulosic, acetate and triacetate on these particular shapes. And as they dry, they crimp and looks--looks like you have a striated or streaky fiber as it is laying on a microscope slide. With non-cellulosic, we see that in nylon polyester, acrylic, modacetate, olefin. Olefin is polypropylene, polyethylene substance with maybe either melt spun or webbed spun that may be extruded or pushed out of this spinnerette into a liquid bath or it may be again in air and in hardness. With melt spin you start out with plastic chips in a big vat and they are melted and into this vat you can add color, you can add delustering, you can add a lot of different things, and then when the fibers come out, these particular fibers, especially nylons and polyesters and olefins, they are the types that end up on carpets and many of the fabrics that you wear. You can really control the shapes and the shapes have a lot to do with how long they last, where they are intended to go, what is going to happen to this fiber, how it is going to feel if you wear it. So these are just examples of some of them. Some of these they don't even make any more, some are still in production. This particular fiber, as an example, it looks like a dice. If you look at a cross-section of it, it has four holes that run right down the center of it, and the purpose, I'm not sure. Maybe to make it lighter, I don't know. But an end use, a lot of these things are included into the factors that make up the fiber you see. This one has five rows running down. This is called a tri-lobal fiber. It has three lobes. This particular one has a hole down the center of it. That is quite unusual. These particular tri-lobal fibers have different shapes and sizes of the lobes, an identifying characteristic or that particular fiber or fabric that you are comparing. Acrylic fibers may end up being shaped. This particular fiber is irregular or round. It looks like it has about six lobes. The bottom of the chart gives you an example here and this has to do with why I'm here, and that is, the types of fabrics that end up on individuals involved in crimes. Yarn types could be two types in particular, a staple yarn and a filament yarn. Staple yarns are made up of a lot of small fibers that are spun together very tight. They tend to shed a little bit more because there is a lot of loose little fibers, whereas a filament yarn, whereas in a nylon jacket, long filaments of indeterminate length, they would have to be damaged for them to be shed. They don't shed that easily, but all of these end up into a fabric, whether it is a knitted fabric or a woven fabric or a banded had fabric. And there are several different types. Most types that you encounter would be knitted fabrics and woven fabrics.

MS. CLARK: Is there a difference in the shedding properties of fabrics that are ever a staple or filament type?

MR. DEEDRICK: There is a difference, yes. Staple fibers--staple yarns and staple fabrics tend to shed more and also they tend to hang onto things more.

MS. CLARK: They are tacky?

MR. DEEDRICK: Just by their nature. Just the surface characteristics of the fabric are such. The more worn the fabric, for instance, you may wear away a lot of the loose fiber ends that are present. This particular fabric wouldn't hang onto things that well, whereas a new fabric that has a lot of loose yarn still on the fabric may hang onto something and keep the fibers longer. A bulky sweater, a bull ski sweater will shed and it picks up a lot of stuff just by its nature.

MS. CLARK: As opposed to the filament?

MR. DEEDRICK: Well, filament fabrics--you may find a filament fabric that is a very slick fabric. A nylon jacket would be a good example. You may find filament fabrics in lingerie. Any type of filament fabric that is made up of this particular type of yarn wouldn't shed very easily, it would hold onto things very easily. It is something to consider when you are looking at evidence. You kind of expect to see certain things based on the fabric that you are handling.

MS. CLARK: You know, you saw Nicole Brown's--the dress that she was wearing on June the 12th that she was found in. You examined that fabric, a known portion of that dress?


MS. CLARK: Could you tell us whether that was a staple or a filament type of fabric?

MR. DEEDRICK: I don't recall on that. It may have been filament. I'm not sure on that, though.

MS. CLARK: Okay. We will get back to that. You indicated earlier that you can examine fibers and you talked about mounting. Is the mounting process for fibers the same as the mounting process for hairs, on slides, that is?

MR. DEEDRICK: It is pretty much the same, the same techniques, same mounting materials, precautions, probably take a little more precaution with fibers because of their nature.

MS. CLARK: Their nature being?

MR. DEEDRICK: They are smaller and you can lose them if you are not careful. They tend to be--they tend to float around a little bit more.

MS. CLARK: But other than that?

MR. DEEDRICK: The same. Everything else is the same starting point.

MS. CLARK: And with respect to the examination process, how do you conduct a fiber exam?

MR. DEEDRICK: Well, the exam is conducted in a similar way in the beginning as with hairs. That is, you look at it with a stereomicroscope, look at it with a research microscope. You may compare it with a comparison microscope to see if the questioned material found on the victim's clothes look likes the fibers from the fabric of the suspect in the case. And once--once the determination is made that they either look the same, or if they look the same, then you go to the next step, and there are several steps beyond that which help to confirm this eyeball association that you are making.

MS. CLARK: Well, let's assume for a moment that you have compared a questioned fiber from the crime scene, say, a fiber on a victim's shirt to clothing that the perpetrator was wearing when he was arrested, and let's say that you determined that they exhibit the same microscopic characteristics. Is that where you stop?

MR. DEEDRICK: No, no. You go on. There are other confirming tests.

MS. CLARK: Are they the same with respect to whether the fibers are manmade or natural fibers?

MR. DEEDRICK: No, no. They will differ. Manmade fibers can--can use additional tests for confirming.

MS. CLARK: Then let's start with the natural fibers, naturally-occurring ones. Let me just back up and ask you this: You said there are additional steps that can be taken or tests that can be done on manmade fibers?

MR. DEEDRICK: There are.

MS. CLARK: So in other words, would it be fair to say that you can do a certain number of tests beyond the microscopic examination on manmade fibers and natural fibers and then you can do more than that if they are manmade?

MR. BAILEY: Objection, leading.

MS. CLARK: You know what I mean?

THE COURT: Sustained.

MS. CLARK: It would be much better not to lead because--

MS. CLARK: Let me just ask you, whether the fibers are manmade or natural, after the microscopic comparison reveals the same or similar characteristics, what steps do you take with respect to manmade or natural?

MR. DEEDRICK: Almost all of the steps beyond that point are still microscopic, but they are different instruments, different types of microscopes that can be used to confirm an identification of the fiber type and also to compare certain properties of the fiber. You might--as an example, a polarizing microscope might be the second step after a comparison is made. A polarizing microscope is one that is designed specifically to allow you to look at polarized light and how it affects the--the synthetic fiber that you are looking at. And a polarizing microscope is--it is not too simple, but it is simple to understand when you think in terms of sunglasses. If you have polarizing sunglasses, you know how when you wear them they tend to cut the glare. They do this because they are designed to let light only enter your eye in one direction. That the light coming and scattering in all directions hits your eye. It is like venetian blind, it only let's the light come through in one direction. You put a polarizer on the light source of a microscope and you can control which direction you let the light hit the fiber with. By placing another polarizer above it, which is called an analyzer, which he essentially the same thing, the polarizing filter, and by adjusting the orientation of these you can actually cross them so that no light comes through when you insert that fiber in between. The fiber interferes with that light and you will see color and it is called interference colors, and by examining the interference colors and by doing some measurements with some instruments that can be added to it, you can identify the generic group of the fibers. Is that a nylon fiber or it is a polyester fiber? These can be done with that instrument and you can compare them. You can do comparison of interference colors with questioned and known.

MS. CLARK: For example, if you have manmade--no, not fibers. After do you the microscopic comparison--the straight microscopic comparison, what would be the next thing that you might do to compare questioned and known natural fibers?

MR. DEEDRICK: Once a determination is made as an example of, let's say, a cotton fiber, looks the same under the comparison microscope, the next step would be to take it to what's called a microspectrophotometer. That is a big word. I don't know if we have a picture of that.

MS. CLARK: We do. People's 467--no, 9. 469, your Honor.


(Peo's 469 for id = photograph)

MS. CLARK: Is that a microspectrophotometer?

MR. DEEDRICK: It certainly is.

MS. CLARK: Tell us what it does.

MR. DEEDRICK: The microspectrophotometer is like a regular microscope that has a photometer head, it has a meter that sets on the top of it. As an example, here you can see I'm looking through the microscope. Above that white area, just above it is measuring the light that is passing through the fiber and it can measure light at specific wavelengths, so that if the color that is added to the cotton fiber, it comes--let's say, maybe three different colors are added to the fiber to give it the color that you see normally in daylight, that this instrument can show that these different components will interact with the light at specific wavelengths and it will present you with an absorption chart which shows where the colors are and where they are absorbing. Our eyes see one color. The instrument actually allows you to see where these components are in the visible spectrum.

MS. CLARK: And the chart you are referring to, is that actually shown on the screen of the monitor in this photograph?

MR. DEEDRICK: It is hard to see, but yes, that is the--what you get from looking at the fiber.

MS. CLARK: Okay. Now, we are showing you a chart. I would ask that it be marked People's 469-A, your Honor.

THE COURT: 469-A, all right.

(Peo's 469-A for id = chart)

MS. CLARK: Tell us what that is, sir.

MR. DEEDRICK: Well, this chart here shows you two brown carpet fibers that were examined under the same conditions. The chart that was prepared of one differs from the other. That is because they are different, different brown colors, just to show you when they don't look the same.

MS. CLARK: And is that a sample of a chart that would be produced by the microspectrophotometer?

MR. DEEDRICK: That is, yes.

MS. CLARK: Have you ever heard of the term "Spectral fingerprint"?

MR. DEEDRICK: I have heard that before, yes. It is essentially the spectral fingerprint or representation of the colors that go into the fiber, the dye components.

MS. CLARK: So when they say "Spectral" they mean?

MR. DEEDRICK: Well, the color range that we are familiar with. Fingerprint in a sense that it identifies the components of a particular fiber by the color components.

MR. BAILEY: I'm going to object to the use of the word "Fingerprint," your Honor.

THE COURT: Overruled.

MS. CLARK: Okay. Could we go back to that second chart.

(Brief pause.)

MS. CLARK: Mr. Deedrick what would you say about the results on this chart with respect to whether or not the blue cotton fibers match?

MR. BAILEY: Objection to the use of the word "Match."

THE COURT: Sustained.

MS. CLARK: Okay.

MS. CLARK: With respect to whether or not the--with respect to the results on this chart, can you tell us whether or not you would draw the conclusion, based on these results, that these fibers had the same origin?

MR. BAILEY: Objection, leading.

THE COURT: Overruled.

MR. DEEDRICK: The chart that you see indicates that the colors are different, that in fact one fiber, if they--if the question is did the one fiber come from the same source based on this spectral result, they did not. (Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: And you were looking then at the actual wave pattern; is that correct?

MR. DEEDRICK: You look at the absorption peaks, absorption and transmission of that particular color in specific wavelengths.

MS. CLARK: That second one, can it be marked 469-B, your Honor?


MS. CLARK: The blue cotton.

(Peo's 469-B for id = photograph)

MS. CLARK: I'm sorry, your Honor. Excuse me. Technical difficulty.

THE COURT: Anybody want to stand up and take a stretch while we are at this point? Well, I'm going to stand and take a stretch.

MR. DEEDRICK: Include me. I will stand up, yes.


(Brief pause.)

THE COURT: Mr. Fairtlough, do you have what we need?

MS. CLARK: I would ask that this chart be marked People's 469-C, your Honor.


(Peo's 469-C for id = photograph)

MS. CLARK: All right. Is this another chart that would be generated by the microspectrophotometer?

MR. DEEDRICK: Yes, it is.

MS. CLARK: Can you tell us, with respect to the results depicted in this chart, whether or not you would conclude that the two fibers measured by that instrument would be determined to have had the same origin?

MR. BAILEY: Object to the form.

THE COURT: Overruled.

MR. DEEDRICK: Well, I don't know if I would use the term "Measured," but yes.

MS. CLARK: Whatever term you like.

MR. DEEDRICK: When one fiber was tested it produced a curve like you see, let's say the top curve. The second fiber produced the bottom curve. And what an examiner looks for is to see if there is conformity at the specific absorption peaks and transmission peaks. In this particular case they do conform. This particular test was taken from the same fabric which shows you another thing, that they don't have to lay one right on top of the other, that they do--they will absorb dye differently. So you have to look at how the curves appear, not if they lay on top of one another.

MS. CLARK: Okay. So in this case the two blue fibers, they were actually picked off from the same material?

MR. DEEDRICK: Actually came off the same yarn.

THE COURT: We have many yarn experts.

MS. CLARK: I'm sorry, your Honor?

THE COURT: We have many yarn experts.

MS. CLARK: Yeah, that's right.

MS. CLARK: And if we measured their yarn and you would try to follow the same peaks and valleys and that is how you would determine whether or not it had the same origin?

MR. DEEDRICK: Same peaks and valley comparison, yes.

MS. CLARK: Is there anything that will produce a different peak, any kind of added--for example--if a piece of yarn--if you have two pieces of yarn from the same ball, the same origin, one piece has a little bit of blood on it, the other one doesn't, is that going to cause some difference in the result on a chart like this?

MR. DEEDRICK: It will. It will pick up the color. Just not knowing any difference, it will absorb in that particular region of the spectrum.

MS. CLARK: Is there any way to account for that in determining whether or not two fibers could have had the same origin so that you don't improperly exclude it because of the blood?

MR. DEEDRICK: Well, you could--you could do a test sample of the fabric and add blood to it to see the effect of blood to that particular known sample, or you could clean off the blood and see it without the blood present. The blood peak is pretty easy to see, and once you see it with the microspectrophotometer on the chart, you can infer that.

MS. CLARK: That is a pretty common issue in criminal cases?

MR. DEEDRICK: Well, it--in criminal cases often involve bloodshed and clothing, fibers, often pick up blood. The questioned fibers that you look at may have--may have blood on them. The known standards that are taken routinely are not--you don't try to take known standards from the bloody area. You try to take it from a clean area and you may have to take it from the bloody area just to show the comparison, but we are talking a real small piece of fiber, though, on the board, and we are talking about a very small area of the fiber that you are actually testing, but you can pick up an absorption in that particular--if it has blood on it.

MS. CLARK: All right. So let's assume for a moment that in your comparison of the natural fibers you have done the comparison on the comparison scope and they seem to have the same characteristics and you go to the microspectrophotometer and you produce wavelengths that have the same characteristics, peaks and valleys. Is there some further step you can take?

MR. DEEDRICK: Yes, there is.

MS. CLARK: And what is that?

MR. DEEDRICK: Fluorescent microscopy can be used.

THE COURT: Do you want to mark this 469--

MS. CLARK: 470, your Honor.



THE COURT: All right.

MS. CLARK: Thank you, your Honor.

(Peo's 470 for id = photograph)

MS. CLARK: This is the fluorescent microscope?

MR. DEEDRICK: Yes, it is. It is again a comparison microscope which has fluorescent tubes in the uppermost portion of it and they can be altered. A specific type of light is reflected off of the surface of the fiber, and if the fiber has fluorescent qualities, it will absorb certain wavelengths and will emit a longer wavelength. It appears to be a different color to the eye under different lighting conditions, we use ultraviolet light, blue light and green light, and comparison is made between the questioned and the known the same way. If the question fiber and the known fiber fluoresce the same and they are the same in all the other tests that are conducted, it is just another confirmation. Where you might have problems is you go through the steps and you find that they are all very similar but the fluorescence is wrong. That might be a way to eliminate that fiber as possibly coming from a particular garment.

MS. CLARK: Okay. So if you are trying to determine whether or not a questioned fiber and a known fiber could have had the same origin when you subject them to, say, did you say green light, for example, you might use--

MR. DEEDRICK: A green light.

MS. CLARK: --a green light under the fluorescent microscope, they should fluoresce the same way?

MR. DEEDRICK: They should, right. If they fluoresce, they should fluoresce the same. The color that you are looking at visually should be the same.

MS. CLARK: And if it doesn't?

MR. DEEDRICK: Some fibers don't fluoresce at any wavelength.

MS. CLARK: Okay. If one does--if the questioned fiber fluoresces under the green light and the known fiber does not fluoresce under the green light, what conclusion, if any, would you draw?

MR. DEEDRICK: Well, there is two possible: One, that they came from different fabrics. And two, something happened to the one that the--it didn't happen--for instance, you may have some time factor. You may have the fiber laying out in the sunlight for a long time and losing its fluorescent qualities or ability. It gets faded. It leaches out--leaches out whatever ability that fiber had to fluoresce. The known fiber was retained and wasn't affected the same way, you might find that the questioned fiber doesn't fluoresce, yet the known fabric still does, so then it is a matter of maybe doing some tests, taking some of the known fibers, heating them out in the sun for awhile, the same period of time, and then seeing if they act the same way.

MS. CLARK: So would you ever call an exclusion, that is, determined that a questioned fiber and known fiber could not have the had the same source based solely on what you see under the fluorescent microscope?

MR. DEEDRICK: You could. It depends on the circumstances, the historical information that might be available about a fabric. I have done it. I have done it before.

MS. CLARK: So far the steps that we have gone through, are these steps that you can do to both manmade and natural fibers?


MS. CLARK: After the fluorescent microscope stage is there some further step that you do on natural fibers?

MR. DEEDRICK: With synthetic fibers?

MS. CLARK: No, natural fibers. Can you go any farther in your analysis?

MR. DEEDRICK: There is other tests that could you use, sure. You could strip the die using thin layer chromatography, even using dye separation. There are a number of tests that could be use.

MS. CLARK: Are they routinely used?

MR. DEEDRICK: Some labs they are. He don't do thin layer chromatography in our lab. It is a destructive technique. Some instances we might, depending on the circumstances. You have to have a lot of known standard to work with. That is, enough so you can determine the system that you might want to use because you have to take the dye out of the fiber and then you have to see how it can separate on a chromatographic plate. So you need enough to work with to experiment to see if you only have one fiber found on the victim's clothes, but you have a lot of fibers from the suspect, you want to make sure that if you are going to do anything to this questioned fiber that you better know the results you might expect to get, because once you take the dye out of the fiber, you have destroyed it.

MS. CLARK: Okay. That is thin layer chromatography?


MS. CLARK: The processes that you have outlined for us so far, any of these deinstructive processes?

MR. DEEDRICK: The ones that we use are not destructive.

MS. CLARK: So that when you complete all of the steps that you use at the FBI is the hair or fiber intact as you found it?

MR. DEEDRICK: Yes, it is.

MS. CLARK: All right. Now, for manmade fibers can you go farther than fluorescent microscope and thin layer chromotography?

MR. DEEDRICK: Yes. You can use ftir, infrared spectroscopy.

MS. CLARK: People's 471, your Honor.


(Peo's 471 for id = photograph)

MS. CLARK: So after all the steps you have gone through, everything looks the same and you come to FTIR--what does that stand for?

MR. DEEDRICK: I will probably really--it is Fourier Transfer Infrared Spectroscopy. Fourier, spelled F-O-U-R-I-E-R, and I apologize to these people who know more about it.

MS. CLARK: We will say ftir?

MR. DEEDRICK: Ftir is beautiful.

MS. CLARK: What does it do?

MR. DEEDRICK: The instrument that we have has a microscope attachment. A small portion of the fiber is flattened, actually a roller is applied to it to make a thin layer of the fiber. And then passing infrared light through it, it will--it will again absorb and it will affect--it will affect based on the polymer that is in that particular fiber. The molecules that make up the fiber interact with the infrared light and they start shaking and vibrating in all directions and this shaking and vibrating allows the chart to be prepared and this chart will identify the polymer and also can be useful for a comparison.

MS. CLARK: Okay. Let's--let's pull up the chart and tell us how it can be useful for a comparison, as well as the identification of a polymer. Actually, before we do all that, what is a polymer?

MR. DEEDRICK: A polymer? It is a--it could be a manmade fiber as an example. It is a long chain of synthetic material, manmade material, made up of a lot of smaller components. It could be called monomers and a lot of them are poly, so it is a polymer. You might start with some small building block and you make a lot of it, a long chain of it, and that is what makes up a particular fiber. Different--different building blocks make up different materials.

MS. CLARK: Okay.

MR. DEEDRICK: A nylon material is different than a polyester material.

MS. CLARK: So when you say identification of the polymer, you are telling us that when you identify the polymer you are identifying whether the manmade fiber is rayon or nylon, that sort of thing?

MR. DEEDRICK: Or nylon 6 or nylon 66 or nylon 11. It depends on the type. There are different types of nylons and there are different types of acrylics and there is different types of polyesters. And this instrument can be a little bit more specific. Whereas I can say it appears to be a nylon fiber based on my tests, this could tell me it is a nylon 66 fiber.

MS. CLARK: So then after the molecules are all shaken up a chart is produced?

MR. DEEDRICK: A chart is produced.

MS. CLARK: Which measures what?

MR. DEEDRICK: Well, then again you are kind of going into the field of ftir that perhaps I'm not most expert at, but it gives a chart of the reaction of the infrared light through that material.

MS. CLARK: Your Honor, may this chart be marked People's 471-A?


(Peo's 471-A for id = chart)

MS. CLARK: Is this an example of a chart that would be produced by the ftir?

MR. DEEDRICK: Yes, it is.

MS. CLARK: Tell us--tell us what it shows.

MR. DEEDRICK: Well, this particular--this particular chart is indicative of a nylon 66 chart and that is based upon a comparison with a database of spectra of nylons. By comparing that spectra that is produced with known standards, that particular polymer can be identified. It is useful also from the standpoint of comparison because dye components, coloration, anything that is added to the fiber will also interact with the infrared radiation that is hitting the particular fiber so that you may have dye peaks that may not be characteristic of an undyed fiber, so it can be useful for comparison as well, besides identification.

MS. CLARK: In which case you would be comparing the different peaks for each fibers?

MR. DEEDRICK: Yes, the position of the peaks in relationship to each other, questioned and known.

MS. CLARK: Now, this just reflects one fiber's measurement?

MR. DEEDRICK: One fiber.

MS. CLARK: I think you spoke earlier about the cross-section of a fiber on one of the charts. Is that something that you routinely compare, the cross-sections of fibers?

MR. DEEDRICK: Yes. It is a very excellent way of comparing fibers.

MS. CLARK: And what is a cross-section of a fiber?

MR. DEEDRICK: Well, a cross-section is how it looks. If you look down the end of it, it could be lopped off a tree, you know, it is round, or you lop off a fiber, you know what shape it is.

MS. CLARK: Can you also see the cross-section of a fiber without cutting it?

MR. DEEDRICK: Sometimes you can. Sometimes you can. The more intricate the cross-section or the more unusual the cross-section may require using a sectioning technique that is a manual technique which you can do right in the unit, or you might take it to the scanning electron microscope and this is a technique that can be used there which will allow a different type of section and a different type of look.

MS. CLARK: Okay. On the chart concerning fibers that we saw before, you pointed out the tri-lobal look and then had one that had the four holes in it like a die--like dice?


MS. CLARK: Were those example of cross-sections?

MR. DEEDRICK: Those were examples of cross-sections, yes.

MS. CLARK: What is the scanning electron microscope that you said could be used in connection with the examination of cross-sections?

MR. DEEDRICK: The scanning electron microscope actually passes a beam of electrons striking the surface of a material and then it is depicted. The material, the reflection of that--of those electrons onto a detector will give you an image, a three-dimensional image of what you are looking at.

MS. CLARK: Did you have--did you furnish some photographs to be shown to the jury of the example of the kind of photographs that are taken by the scanning electron microscope?


MS. CLARK: People's 472, your Honor.


(Peo's 472 for id = photograph)

MS. CLARK: Tell us what this is, sir?

MR. DEEDRICK: This is a nylon fiber.

MR. BAILEY: Your Honor, may we approach?


(The following proceedings were held at the bench:)

THE COURT: We are over at the side bar. Mr. Bailey.

MR. BAILEY: If it please the Court, it seems to resemble the image that we saw yesterday in conjunction with the Bronco carpet report which report you have excluded. I'm wondering how far the Prosecution is allowed to go with these exhibits and what is going to be said about them.

MS. CLARK: It was my understanding of the Court's ruling that we were allowed to use photographs and it is going no farther than Mr. Deedrick explaining here is an example of a `91 fiber, here is an example of a `92 fiber. He is just going to show the difference in the cross-sections. That is all.

MR. BAILEY: Is he going to say the Bronco fibers?

THE COURT: Well, I'm going to allow this photograph right now just because it is an example of an electron microscope photograph of a fiber, of a synthetic fiber. We will take up that issue later.

MR. BAILEY: All right.

MR. NEUFELD: Your Honor--

MS. CLARK: I thought that the Court permitted the use of the photographs. I'm not going to tie it into the report.

THE COURT: We will see.

(Discussion held off the record between Defense counsel.)

THE COURT: Finish with this and we will take it up later.

MR. BAILEY: Will there be any other photo shown of other fibers?

THE COURT: No, we are not even close to that, guys.

MS. CLARK: Well, he does have another photograph.

MR. BAILEY: I just don't want him saying--

MS. CLARK: Are we going to have the one-attorney rule?

MR. BAILEY: Please, Peter.

THE COURT: All right.

MS. CLARK: I have a photograph of a `92 as well. Neither one of those goes to `94. We are not at that point yet. These are just instructional right now. I thought the Court already ruled that yesterday.

THE COURT: I'm going to allow these as electron microscope photography. That is all it is.

MR. BAILEY: One other matter, your Honor. Will you instruct the Miss Clark to tell the witness please don't use the word "Match" any more.

MS. CLARK: I did.

THE COURT: I'm sure it will happen over the evening hour. Let's wrap it up here.

(The following proceedings were held in open Court:)

THE COURT: Miss Clark, why don't you take it until five minutes till. There is one other thing I need to discuss before we let the jury go.

MS. CLARK: Sure.

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

THE COURT: Proceed.

MS. CLARK: Okay. This was 472. Please tell us what this is.

MR. DEEDRICK: It is a regular tri-lobal fiber.

MS. CLARK: What does that mean?

MR. DEEDRICK: Well, the lobes on--the three lobes of the fiber are uniform as--in length and appearance.

MS. CLARK: Meaning that no one curve is longer or different than the other two?

MR. DEEDRICK: Well, that is what that means, yes.

MS. CLARK: And is that a photograph taken from the scanning electron microscope?

MR. DEEDRICK: It is, yes.

MS. CLARK: And what--what does this fiber come from?

MR. BAILEY: Object to that.

THE COURT: Sustained.

THE COURT: Just what type of fiber is this?

MS. CLARK: What type of fiber is this?

MR. DEEDRICK: It is a nylon automotive fiber.

THE COURT: Proceed.

MS. CLARK: Next. What is that--may I make this, I'm sorry, your Honor, 473?


(Peo's 473 for id = photograph)

MR. DEEDRICK: This is a nylon automotive fiber of a different cross-section.

MS. CLARK: Okay. This is a different--this looks different. How is it--

MR. DEEDRICK: Well, it is different from the standpoint of appearance. That is--I call it the jack cross-section. It has--if you had toys as a child, some of you may not be old enough, but jacks had the little knobby ends on them with the little ball and the jacks. Oh, well. Anyway, I call it the jack cross-section, but it has three lobes, little knobs on the end of them, and it is a little bit unusual, it is different. Again, it is another automotive fiber.

MS. CLARK: What is that?

MR. DEEDRICK: That is a--that is called the Michelin man. I didn't label this one, but it is the same--essentially the same fiber as the previous one as two components made by the same company but they changed the cross-section of it and it appears differently. This is again another automotive nylon fiber made by the same company.

MS. CLARK: People's 474, your Honor.

THE COURT: So marked.

(Peo's 474 for id = photograph)

MS. CLARK: Were all three of these, 472, 473 and 474, scanning electron microscope pictures?

MR. DEEDRICK: They were.

MS. CLARK: And all of them were taken of a nylon carpet fiber from an automobile?

MR. DEEDRICK: They were.

MS. CLARK: And by the same manufacturer?

MR. BAILEY: I'm going to object.

THE COURT: Overruled at this point.

MS. CLARK: Were they taken from different years?

THE COURT: Sustained.

MR. BAILEY: Objection.

THE COURT: Sustained.

MS. CLARK: All right. After all the tests are conducted with respect to comparison microscope, microspectrophotometer, fluorescent microscope and polarizing light, scanning electron microscope, ftir--have I missed any?

MR. DEEDRICK: I think you have them.

MS. CLARK: After all of that, what conclusions can be reached concerning the comparison of fibers?

MR. DEEDRICK: Well, after all that I can only say that the fiber could have originated from that fabric.

MS. CLARK: Could have?

MR. DEEDRICK: Could have.

MS. CLARK: And when you draw that conclusion, what has to be similar? To what agree do you have to find similarity? Can you have any differences at all to reach that conclusion?

MR. DEEDRICK: There can't be any significant differences, anything you can't account for. They have to be all pretty much the same right down the line. All the tests, the original tests and the confirming tests, have to agree.

MS. CLARK: When you say "No differences you can't account for," what does that mean?

MR. DEEDRICK: Well, as I said, you may run some tests initially that there may be some--something that comes up in the subsequent tests that you can't explain. You may need to get some information about the--historical information about the fiber or the fabric or what happened to the suspect's clothes before they got the clothes. As an example--as an example, the suspect goes home, changes his clothes, uses an optical brightener, Fab with borax or something, I don't know, but whatever, and the police get the clothing and they think that that is the clothing that he wore. The reaction of that particular fiber will be different using fluorescence for instance. It may fluoresce, whereas the other fiber didn't, so you may have to do a test, you may have to get information, what happened to the clothes afterwards, can we recreate the same situation? You might not be able to, it just depends, but for the most part, they will confirm--conform all the way down the line when a match--when association is made.

MR. BAILEY: May the word "Match" be stricken, your Honor?

THE COURT: Yes. That is to be stricken and disregarded.

MS. CLARK: I didn't hear.

THE COURT: Stricken and disregarded, the word "Match."

MS. CLARK: I didn't hear it.

THE COURT: Not in this context.

MS. CLARK: So you cannot say that a particular fiber definitely came from this one piece of fabric and no other?


MS. CLARK: Can't say that, okay. But if the fiber--if you find that the fiber does exhibit the same characteristics, a questioned fiber as a known sample of cloth, what is the likelihood of finding another fabric at random that has fibers exactly like those of the questioned fiber?

MR. BAILEY: Objection.

THE COURT: Sustained. Foundation.

MS. CLARK: Okay. Let me back up.

MS. CLARK: What is the significance of a conclusion that a questioned fiber could have come from a given known sample of cloth or item of clothing?

MR. BAILEY: Objection to the form.

THE COURT: Overruled.

MR. DEEDRICK: There is a great deal of significance to certain fiber associations. Some are more common than others. That when you take, for instance, a manmade fiber of a particular type and you color it, you add color to it, it takes on a--sort of a uniqueness. Now, it is a fact that the manufacturer is not going to make--

MR. BAILEY: Excuse me. Excuse me, your Honor. I object to "Sort of uniqueness." There are no degrees of unique and unique would be improper.

THE COURT: Speaking objection, counsel.

MR. BAILEY: All right.

THE COURT: I think we are going to quit at this point, though. All right. Ladies and gentlemen, we are going to take a recess at this point. Hold on. Don't go away. Let me see Miss Clark and Mr. Cochran with the Court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: At the side bar. Any final argument regarding the books?

MR. COCHRAN: Yes. Did you see the letter we gave you?

THE COURT: No, I didn't get a letter.

MR. COCHRAN: Excuse me. I'm sorry.

(Brief pause.)

THE COURT: Mrs. Robertson says it is on my chair.

MR. COCHRAN: I apologize. I was giving Carl a bad time. Can you just glance through that. And I think we gave you a copy, Marcia. Not that you wanted to read it, but I think we gave you a copy.

(Brief pause.)

MS. CLARK: Why don't I get Mr. Darden because he may have read it. I didn't.

THE COURT: Any other comment regarding the Grisham book? And I will mark this letter as a Court's exhibit for this discussion.

MR. DARDEN: Well, I would think that as long as the Court reminds the jury that the book is fiction, I would think that that would be okay for them to review the book. As I mentioned yesterday, when we objected to jurors reading books having to do with prison life, the Defense convinced the Court, as I recall, that that is appropriate reading and now that we have a book that discusses domestic violence, now they want that book excluded. The point being the jurors are intelligent enough to distinguish between what is fact and what is fantasy and what is the evidence is in this case. And my position is that they should be allowed to keep their books.

MR. COCHRAN: If I might just respond briefly your Honor. First of all, correct me, your Honor. I don't recall us having a discussion about if "He Makes Me Want to Holler." I don't think anybody ever made an objection on that. This is the first time that I can recall that we had an objection based upon even a subplot of domestic violence. And the Court has gone out of its way to be very careful about that. We brought this up only out of an abundance of caution and what we did is we had Miss Chapman read this to point out certain things. It involves a 19-year old player, a washed up jock, and life goes downhill ever since. And sure enough, it is absolutely fiction, but at the same time--and you can't even compare it with "Makes Me Want to Holler." That is basically a true story of a guy who is not a journalist with the Washington Post. This case has incident, your Honor, of the gentleman involved, batterer, wielding a baseball bat, which is his weapon of choice. He comes home drunk all the time, pins his wife's wrist, tries to have sex. The police officers come, they never do anything, charges are dropped. She said that over and over again people tell her if you don't get rid of this jerk you might be dead in a month. I can't file for divorce, he will kill me. He tells me so all the time. She has bruises on her shoulders and that sort of thing. Charges are dropped against the husband because the wife won't testify and they go on and on and they have an incident with a Judge. And so there is an incident at page 390 where she has another beating, cuts and bruises, 391 black and blue, swollen bruises on thighs and fists, all those things, your Honor.

So you know, I think that we have been very careful in trying to do this. I'll submit it to you. I just think that even though it is fiction, there is some concern we have, and I think in a case like this where they try to make a big thing out of the whole issue of domestic violence, and we didn't raise that as an issue, that abusive relationships and things and alleged abusive relationships, one has to be careful, and that is the whole thing. And we have put restrictions and jurors and we are not saying they can't read this book. All we said is that they shouldn't read it while they are sitting on jury duty. There is lots of book they can read and we have been very careful about this. This particular book was spotted, so that is why I would ask your Honor to be mindful of this.

THE COURT: All right. I think the Court's obligation is to make sure with a sequestered jury that they get information regarding the case itself. This is clearly a novel, it is clearly fiction, and I think the jurors understand their obligation to decide this case based upon the facts and the evidence presented here in Court and not on anything else. So I'm going to return to the book to the jurors.

MR. COCHRAN: Let me ask you this--


MR. COCHRAN: Will you say something about fiction?

MR. BAILEY: Your Honor--


MR. COCHRAN: Wait, wait, wait. If we could say something to them, I think that will be appropriate, and then the other thing is I think our lawyers, Blasier and Bailey, are very upset that People--as a lawyer, really upset with what they think the People are doing with regard to this questioning and they want to be heard further about what happened with this questioning.

THE COURT: That is why I stopped.

MR. COCHRAN: They are very upset, and if you take a break, we want to address this again in Court, if we could do that as soon possible. I'm sorry.

MR. BAILEY: One other matter, your Honor. We would like out of the presence of the jury to inquire or have you inquire of Mr. Deedrick whether he has any statements, summaries or reports about other types of fabrics or hairs similar to what.

THE COURT: We will get to that.

MR. COCHRAN: So that you know, Blasier will make a representation that he told him yesterday he had some kind of report that he was going to charge us $85.00 for, and he has something, so that you know I may want to inquire. We will pay the $85.00 if that is reasonable. Perhaps the People will inquire.

THE COURT: I think I was joking about having him stand there and photocopy the report.

MS. CLARK: Right.

THE COURT: That is what that is.

MR. COCHRAN: Just what Blasier told me that he says there is another report.

THE COURT: Let's get rid of the jurors first. Stay there.

(The following proceedings were held in open Court:)

THE COURT: Mr. Deedrick, if you could step down, you are ordered to return tomorrow morning at nine o'clock. All right. Ladies and gentlemen, before I let you go and give you the standard admonitions, one other different matter. Earlier this week it was brought to my attention that there was a certain book that a couple of you were reading and some concerns were expressed to me about the contents of that book which is why I asked the bailiffs to collect them in an abundance of caution. But I have thought about it and that book is clearly a work of fiction. You promised me that you will decide this case based solely upon the evidence that was presented here in Court and only upon using the law as I instruct you. And I will return these books to you. I apologize to you for the inconvenience, but I hate to have this case have something happen for reasons that have nothing to do with the facts and the evidence. I'm sure you understand and I'm sure you will follow my instructions to reach a verdict on this case solely on the facts, the law and the evidence. All right. Remember all my other admonitions to you, however. Don't discuss this case among yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, don't conduct any deliberations until the matter has been submitted to you. See you tomorrow morning at nine o'clock. As far as the jury is concerned, we will stand in recess, and we will reconvene in fifteen minutes.


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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, let me just get rid of a few easy issues first. With regards to the use of the two photographs, there is apparently a first booking photograph of Mr. Simpson which does show him in a more benign attitude than the--what appears to be the--for lack of a better word--more sinister visage than the one they've chosen to use, which they're entitled to use. I mean, it's their exhibit board. They're entitled to make it the way they want to, but they do so at their peril since I'm sure that will be part of the argument.

MR. COCHRAN: You're absolutely right, your Honor. Thank you.

THE COURT: All right. As to--

MR. COCHRAN: May I get those back, your Honor?

THE COURT: Yes, you may. Mrs. Robertson? All right. I was a little concerned--the reason we stopped two or three minutes early is, I was a little concerned where we were going with those electronmicroscope photographs in light of the Court's ruling with regards to the report. Miss Clark, do you want to let me know where we were going with that?

MS. CLARK: We had just about--that was about it. I think I had one last question. I was not going to elicit the fact that this was a Bronco carpet or the manufacturer or manufacturer's Bronco carpets because I think I'm pretty clear on that. I was simply going to ask if that was representative of different years. The manufacturer changed the carpet type in different years. That's it as far as that was going. Then I believe the last objection--I didn't think that that would be objectionable. That's why the Court probably saw me give a quizzical look. I didn't intend to go any farther than to indicate that the manufacturer did change over a period of years and it's illustrative in nature, nothing more, and I thought that would be acceptable and within the perimeters of the Court's ruling.

THE COURT: Well, I thought it was illustrative of different types of fibers as they appear in electronmicroscope photography and I thought that was about the extent of it. So I think you've covered it at this point.

MS. CLARK: Right. And I won't go back to that.

THE COURT: All right.

MS. CLARK: The question I think that elicited or the answer that elicited the last objection, I don't understand counsel's objection. This is an expert. Perhaps I should lay some further foundation with respect to the number of fiber comparisons he has done, but I think I already have elicited the fact that he's done half a million comparisons in his 17 years and some--roughly half or some of those were--

THE COURT: I'm sorry. Refresh my recollection as to which one we're talking about.

MS. CLARK: What question?


MS. CLARK: I asked, after an objection by counsel: "What is the significance of a conclusion that a questioned fiber could have come from a given known sample of cloth or item of clothing? "Objection overruled." And then this is what the objection was focused on and the following answer: "There's a great deal of significance to certain fibers association. Some are more common than others. Then when you take, for instance, a man-made fiber of a particular type and you color it, add color to it, it takes on sort of a uniqueness. Now, it is a fact that the manufacturer is going to make--" and then there was an objection to the use of the term "Uniqueness."

THE COURT: Where are we going with this?

MS. CLARK: Just fibers. We're not talking about Bronco fibers. We're talking about in general the fact that, you know, that all red fibers are not created equal, all black fibers not created equal, and this witness has seen enough of those fibers to know. But we're not--we're just talking about fiber comparisons, your Honor.

MR. BAILEY: If it please the Court, I think this witness is obviously much too intelligent to misuse the word "Unique" accidentally. There is no such thing as sort of unique, pretty unique or more unique. You're either unique or you're not. And if you're unique, you're in the match category, and I think that we ought to have some pretty firm rules about that. And I see everybody walking right up to the line, automotive carpet fibers, years they were made. I thought these were the things that were not going to be mentioned. There were mere examples.

THE COURT: Yes. Mere examples. All right. Miss Clark, as to the--you know, he can testify to how differentiation is made between fibers which includes colors, dies, other examples of how one goes about talking to manufacturers and finding out from databases, that sort of thing. That goes to the technique. I don't know if you really want to do that since you're not going to be able to offer that.

MS. CLARK: Well, there's other fiber matches besides the Bronco, your Honor.

THE COURT: Oh, I understand. But see, you fall into that. There are others that appear to be similar.

MS. CLARK: I'm sorry. Right.


MS. CLARK: But what I'm--

THE COURT: No, I understand that.

MS. CLARK: Okay. The other question I have is this. I understand the Court's ruling with respect to not using any of the information in his testimony concerning the report from Masland, but the witness is permitted to testify to his conclusion that it was turned over to counsel, that he found--that he identified--he found the same microscopic characteristics in the Bronco fiber from the Defendant's car as he did from the carpet fibers found on the Rockingham glove and knit cap.

THE COURT: That's correct.

MS. CLARK: Okay. And if the Defense then opens up this area and says, "Well, there were tons of carpet made," then he should be permitted to answer that question rather than lie to the jury.

THE COURT: Well, if they're so fool hearty as to do that, but I suspect the cross-examination will be, "All you can really say is, it looks similar, correct, but you can't absolutely say it came from this source, can you?" "No, I can't." "Thank you very much. Goodbye."

MS. CLARK: Uh-huh. Okay.

MR. BAILEY: Your Honor is very specific.

MS. CLARK: I should also indicate--

THE COURT: Because the shorter the cross-examination is, that gives a message to the trier of fact who cares.

MS. CLARK: I wonder if that message was received. But let me ask you this, your Honor. With respect to this expert's opinion--

THE COURT: But what I'm doing by saying that though is, I agree with you there's a possibility that if we get into commonalty and that sort of thing, if they get into that area, that's a different story.

MS. CLARK: Okay. Okay. Further, this witness, the reason he undertook the further inquiry to Masland is that he found something unusual about those carpet fibers, and then based on the--what he saw in them in his experience--has nothing to do with Masland. This is before that ever happened. In his experience, he looked at them and said, "This is unusual." He then looked for other item--he looked through other items and found the match to other items in this case, and based on that, went to Masland. Everything up to the point of going to Masland, as I understand it, is within the range of his admissible testimony.

THE COURT: Is it in his report?

MS. CLARK: Yes. All of those matches are in his report. All of those--

THE COURT: The report that was turned over to the Defense.

MS. CLARK: Correct.

THE COURT: All right. Mr. Blasier. I'm sorry. Mr. Bailey? Who is going to address this?

MR. COCHRAN: May we have just a second, your Honor?


(Discussion held off the record between Defense counsel.)

MR. BAILEY: First of all, your Honor, the reports that I read prior to yesterday's revelation had nothing to do with randomness, rareness or anything else. They simply said it was similar as you have correctly figured out. Second, we have a real problem here. Mr. Deedrick has a virus called "Match" and he's infected Miss Clark and that word keeps cropping up, and I don't know how you're going to enforce it unless you get a little bit tough. I ask that you do that.

MS. CLARK: Let me respond to that though, your Honor. I have spoken with the witness about the word "Match" and we're not going to do that anymore. We're just not. And I apologize to the Court. We'll have a longer discussion about it. What we will do is, I'm going--I propose to ask the witness a series of questions so we can both practice using the word saying "Microscopic characteristics" and other terminology that the Court will find acceptable. With respect to the unusual features of the carpet fiber, this is no different than the hair comparison. This all goes to the same general body of information that all hair and fiber examiners have, which is, in order to compare hairs, they have to have unusual or distinctive characteristics or else you can't compare them.

THE COURT: I understand.

MS. CLARK: And that's the same things with fibers.

THE COURT: I understand.

MS. CLARK: Okay. So we don't have any--

THE COURT: But to say I compared the questioned fibers amongst themselves with the known fiber from the Bronco that we have, that's one comparison.

MS. CLARK: Right.

THE COURT: But then comparing it to other things, that's something different, which we don't have involved here.

MS. CLARK: You mean other years of broncos? Is that what you're talking about? No, we won't do that. All right. I understand. Thank you.

MR. BLASIER: Your Honor, may I be heard on a discovery request?


MR. BLASIER: I'm extremely concerned about where this is all going. When I had my conversation with Mr. Deedrick yesterday about the carpet fiber and he didn't show me his report, it wasn't provided until you ordered it, I asked him whether he had done any similar research about blue black cotton fibers, and he said, well he just does that kind of as a general--for all of his cases in a general way. And so I asked him if he could give me copies of what he had or what he accumulated. He said, "It will cost you $85." I said, "I've got $85." I want that material because I think he's done other research. I think there's a large amount of other material that we have not gotten that they intend to try to get into.

THE COURT: My recollection of that conversation, as if you recollect, you all were using my photocopy machine to make copies of this stuff, I took that as a jocular comment by Mr. Deedrick that he ought to charge 85 bucks for the services of photocopying. That's the way I understood it.

MR. BLASIER: This happened before you came out and ordered the material. This had nothing to do with that.

THE COURT: All right. Is there any other similar report regarding blue black cotton fiber?

MR. DEEDRICK: No, sir. It's the only research I did on this case.

THE COURT: All right. Thank you. Okay. Anything else with regards to carpets and fibers?

MR. DARDEN: Your Honor, before--

THE COURT: And hairs?

MR. DARDEN: Before you hear from Mr. Uelmen and Mr. Goldberg, there is the issue of the Defense witness list. Now, we are probably a day from finishing with Mr. Deedrick or a day and a half in terms of testimony.

THE COURT: You think so?

MR. DARDEN: Yeah, I think so. I think you've suggested the appropriate cross-examination in this case and I'm sure they'll take your advice.

THE COURT: You know, we ought to go to the Talmudic Courts where the Judge does all the questioning.

MR. DARDEN: Then we'd have to object to that, wouldn't we? And it could take six months.

THE COURT: Not in this Court. All right. Go ahead.

MR. DARDEN: In any event, I think we have a right to know what the witness lineup is going to be for the Defense.

MR. COCHRAN: I think it was agreed, your Honor, that--and we talked about this--they'll get a list and--first of all, I think they're being optimistic with regard to when they're going to finish. Miss Clark has previously indicated she would take a minimum of two days for direct. That's what she told us herself. And there will be cross-examination. And what we agreed was that as soon as they finish their case, we'll give them a list. And I think you agreed that was appropriate. We'll give them a list--and we'll give them more time than what they've given us. We're not going to just hold back and give a witness at a time. I want to give them enough so they can keep busy because we're going to move this case along, your Honor.

THE COURT: All right. My only concern though is, Mr. Cochran, you know what the Prosecution case is. We're going to finish with Mr. Deedrick my guess is Wednesday or Thursday.


THE COURT: And the next witness for the Prosecution will be Juditha Brown, which my guess will be a 20-minute witness.

MR. COCHRAN: Should be.

THE COURT: And that will be a wrap. Then we will have to go into perhaps a day of the People moving their various evidence into evidence. And I anticipate--however, I only anticipate between 12 and 20 objections to pieces of evidence because I think everything else was previously agreed to. So we should be able to do that in half a day, and then we will get to the Defense case probably Thursday afternoon or Friday. So--

MR. COCHRAN: We previously indicated, we'll be ready to give them a list as soon as they rest. Your Honor, the problem with this Prosecution team is that as soon as they see something on our list, they may very well not rest. And that was the issue you--

THE COURT: No. They told me--they told me they are going to rest after Miss Brown--Mrs. Brown.

MR. DARDEN: That was the representation and we think that will be the case. Of course, there are probably a few stipulations we may need to enter into in terms of some of the exhibits, but I don't think there will be any need to call any additional witnesses beyond what we've indicated already. At any event, the rule of the deal has been three days and, you know--

THE COURT: I agree with you that by tomorrow, we may hit the three days.

MR. COCHRAN: Well, unfortunately, I won't be here tomorrow as the Court is aware. May I give the list on Wednesday morning when I return? And I'll make sure they have it Wednesday morning. Your Honor, there's going to be--by the time they finish this case, trust me, it will be probably more like Friday before we can start, but they'll have enough time, your Honor.

THE COURT: Wednesday morning.

MR. COCHRAN: Wednesday morning? Thanks, your Honor.

THE COURT: 9:00 o'clock.

MR. COCHRAN: What time--by the way, since I won't be here, are we starting Wednesday what time?

MR. DARDEN: That's five days from now.

THE COURT: Yes, I know. Mr. Darden, we're not going to finish Mr. Deedrick tomorrow.

MR. COCHRAN: We're going to start a little bit--I don't think to.

THE COURT: If you recollect, we agreed on Wednesday we would start at 10:30.

MR. COCHRAN: So Wednesday at 10:30, your Honor? Thank you.

THE COURT: And so that--that gets us to Thursday and Friday.

MR. DARDEN: Well--

MR. BAILEY: May I inquire of Miss Clark, your Honor, whether there's any possibility she'll finish in the morning?

MS. CLARK: I'd like to say yes, but I really doubt it.

THE COURT: Mr. Bailey, there's just too many of these hairs and--

MR. BAILEY: I understand. I simply want an understanding that if she does finish, I would like the weekend to go through all these exhibits which we just saw yesterday with my expert in detail before having to start. Thank you.

THE COURT: Okay. Let's move on to the motion. There is a motion to strike--actually a renewed motion to strike with regards to the foundation for the blood evidence, which I think is the appropriate characterization of where we are at this point.

MR. UELMEN: I believe that's an accurate characterization, your Honor. Actually, this motion really renews our prior objection to the admission of comparative evidence using the reference sample of Mr. Simpson's blood sample prior to the appropriate laying of a foundation for the admission of that blood sample. And I believe your Honor's ruling at the time was that you were not going to dictate to the Prosecution the order of their proof, that we could proceed subject to the laying of a foundation. Our motion at this point calls to the Court's attention that there is no foundation in this record for the admission of a reference sample of Mr. Simpson's blood. And, therefore, unless the Prosecution is going to offer some additional evidence to lay that foundation, all of the DNA comparisons and all of the conventional serology comparisons comparing the reference sample of Mr.--the alleged reference sample of Mr. Simpson's blood must be excluded from evidence. Now, the Prosecution has filed with the Court a trial brief, trial brief no. 7, in which they assert that there is no need to call the nurse who actually drew the blood from Mr. Simpson in order to--

THE COURT: Excuse me. Mr. Uelmen, forgive me for interrupting. Do we have People's 183 available?

THE CLERK: Yes, your Honor.

THE COURT: All right. May I have that, please.

MR. UELMEN: I believe what we have available is a photo of People's 183. The actual exhibit itself has never been produced or offered in evidence other than a photograph. Certainly, calling the nurse would be the most obvious and direct way to lay this foundation, and there is at this point no explanation for the failure to call the nurse. The closest thing to an explanation comes in an argument contained in this brief that somehow, the Defense should be precluded from inquiring of the nurse as to how much blood was drawn at the time of the actual taking of the sample. But the problem, of course, is that what is represented in this brief misrepresents the testimony of the nurse. It's asserted here that: "The Defense will never be able to establish a sufficient foundation for nurse Peratis to testify to the amount of blood drawn from the Defendant. The reason is that nurse Peratis will testify that he has virtually no experience measuring the amount of blood drawn from a person and put in a reference vial. Moreover, he did not measure the amount of blood drawn in this case. His prior testimony is to the amount of blood drawn was a complete guess lacking any foundation whatever." And that is simply not an accurate characterization of nurse Peratis' testimony at the preliminary hearing. The testimony at the preliminary hearing proceeded as follows:

THE COURT: Counsel, can you give me the page on that, please?

MR. UELMEN: Yes. This is page 25 of the preliminary proceedings on Thursday, July 7th, 1994.

THE COURT: Thank you.

MR. UELMEN: Cross-examination by Mr. Shapiro: "Question: How much blood did you withdraw from Mr. Simpson? "Answer: Approximately 8 cc's. "Question: When you say `approximately,' you did not measure the amount? "Answer: Well, it could have been 7.9 or it could have been 8.1. I just looked at the syringe, and it looked at about 8 cc's. I withdrew the needle from his arm. "Question: Nobody asked you to take a precise amount of blood? "Answer: No. "Question: And you did not record the amount of blood you took? "Answer: No. It's just routinely, that's about the amount I usually draw. "Question: And you do this on a routine basis every day? You do this every day in the jail, take blood? "Answer: Whenever--not for this sort of thing. It's usually for alcohol, blood alcohol. "Question: But you do take blood on a regular basis?

"Answer: Yes." So it's quite clear from the prior testimony that the nurse looked at the syringe and gave a very precise range, that what he drew was from 7.9 to 8.1 cc's. We believe that the testimony of this nurse is essential to lay the foundation necessary for the People to prove as they must, that the reference sample to which they are comparing all of the unknown blood exemplars for DNA analysis and conventional serology analysis is actually the blood of Mr. Simpson. That is not established in the record at this trial thus far by the testimony of Detective Vannatter. Detective Vannatter simply testified that he was present when the nurse drew the blood and then he was later given a vial, a purple-topped vial, which he put into an envelope and transported back to the Rockingham scene. And there is an essential gap in that testimony. Detective Vannatter did not testify that he observed the transfer of the blood from the syringe into the purple-topped vial, nor can we simply infer that what he was given was the same blood that was drawn in the syringe or fill that gap simply by speculation, because any inference to that effect is rebutted by the affidavit itself that the nurse allegedly filled out at the time this transfer took place. Now, your Honor will observe the language of that affidavit certifies that--and I'll read it. "I, Thano Peratis, collected a blood sample from the right arm of the above-named subject on June 13th, 1994 at 1430 by vena puncture using a sterile, dry hypodermic needle on a--needle or syringe and using the disinfectant as identified."

THE COURT: Aqueousciphron I think.

MR. UELMEN: Right. "I deposited the sample into an evacuated dry, clean vial, which vial I received from Vannatter; and after initialing a label on the vial, I returned the vial containing the blood sample to the above officer. "I declare under penalty of perjury that the foregoing is true and that this declaration was executed on May 19th, 1994." Now, there's a real problem here, of course, because the date that appears on that affidavit under the evidence code must be presumed to be a true date. That is, the Court in the absence of any absence to the contrary, must presume under evidence code section 640 that a writing is truly dated. That means that on this state of the record, that affidavit was completed on May 19th, nearly a month before the alleged operation that he was describing and verifying allegedly took place. If we follow the evidence code, the certificate is on its face presumed to be a fraudulent certificate. And in the face of the existence of that fraudulent certificate, we certainly cannot infer that all of the proper procedures were followed in this case. Obviously, there were some mistakes made, and those mistakes have to be explained before your Honor can simply infer that the proper procedure was followed and that what we have in this case is actually the blood that was drawn by that syringe from Mr. Simpson. So we don't have a foundation in the testimony of Detective Vannatter nor do we have a foundation in this affidavit or certificate itself.

The People have made the argument in their trial brief that the California evidence code permits the Court to utilize this certificate as a business record so that through hearsay contained in the certificate, we can lay the foundation. There are two problems with that. Actually, three problems. The first problem, of course, is that the certificate is presumptively fraudulent. The second problem is that no foundation was ever laid to establish that this certificate is in fact a business record. No person in the course of this trial has gotten on the witness stand and testified that this certificate was made in the regular course of business, that it was made at or near the time of the act or condition or event, that the custodian or other qualified witness testifies to its identity and the mode of its preparation and the sources of information and method and time of preparation were such as to indicate its trustworthiness. Those are foundational requirements required for any exhibit to be admitted as a business record. We don't have any testimony to establish that.

All we have is a photograph produced through another witness who was not even present when this certificate was made saying that when the blood was brought to the laboratory, this certificate accompanied it. And that does not supply the necessary foundation to establish that this certificate is indeed a business record or an official record. The third problem with this is that there is no legal authority in California to allow the identity of the donor of a sample to be tested in a laboratory to be established by hearsay evidence through the use of a business record or an official record. The only legal authority presented by the Prosecution is the case of County of Sonoma versus Grant W. And if your Honor will look at that case, you will discover that the identity of the donor was stipulated in that case. So the purpose of offering a hearsay record in that case was not to prove where the substance had come from. It was simply to prove the routine laboratory analysis of the substance. And that's very different from relying on a hearsay record to establish the identity of who the actual donor of the substance examined was. There are problems with the use of hearsay for this purpose. Number one, it deprives the Defendant of the opportunity and right to cross-examine. And the answer to that is going to be, "Well, if you want to cross-examine, you can call him yourself." The evidence code gives us the right under section 1203 to call to the witness stand and cross-examine the declarant of any hearsay statement. So certainly we have that right. But exercising that right obviously is going to come at a price. And the price that will be exacted in this case is that if we have to call the nurse ourselves to cross-examine him, we are put in the position of then bolstering the Prosecution's case and supplying an essential element necessary to the proof of their case. And that is precisely the situation that was addressed by the United States Court of Appeals for the ninth circuit in the case that I supplied to your Honor that was just decided last March. The case is Wigglesworth versus Oregon. And in that case, the Court was confronted with an Oregon statute that permits a laboratory report with respect to the identity of a drug to be admitted without testimony by the technician who conducted the analysis, but gives the Defendant then the right to call and cross-examine the technician.

And the Court noted that the dilemma this presents to the Defendant to either forego cross-examination or risk bolstering the Prosecution's case had been avoided in Oregon by an Oregon Supreme Court opinion, which is also with the material supplied to the Court, State versus Hancock, to say that in such a situation, then the cross-examination must occur during the State's case in chief. That is, the Defendant must be given the opportunity to cross-examine during the State's case in chief before the hearsay report is admitted in evidence to supply the essential element. But since the Wigglesworth case had come before the trial Court before the Hancock decision had come down and the Defendant had not been given that opportunity, the Court found that there was a violation of due process and granted a writ of habeas corpus. So I want to make it very clear that the objection of the Defendant to supplying this essential element of the Prosecution's case through hearsay is not only an objection based on grounds of the denial of the constitutional right of confrontation, but also a denial of due process in the sense of requiring the Defendant, if he wishes to assert his opportunity to cross-examine to himself, risk supplying that missing element of the Prosecution case. So to sum up, on the state of the record, we have right now at this point in the trial--and the People have indicated they do not intend to call nurse Peratis--we are missing an essential gap with respect to the chain of custody of the blood that was drawn from Mr. Simpson's arm in terms of that actually being the blood that provided the reference samples. That gap cannot be filled by the testimony of Detective Vannatter, and in any event, it is rebutted by the existence of a certificate which is presumptively fraudulent in which the nurse is certifying that the procedure under which this blood was drawn and placed in a vial certified on May 19th, 1994, a month before the procedure actually took place. So that discrepancy has to be explained before we can find the necessary foundation, and the only way to explain it is to call nurse Peratis to the witness stand.

THE COURT: Thank you, counsel. Mr. Goldberg.

MR. GOLDBERG: Good afternoon, your Honor.

THE COURT: Good afternoon, Mr. Goldberg.

MR. GOLDBERG: Your Honor, before I begin, I'd like to give a copy of some excerpts from the transcript that I typed up that I would like to refer to and it might be easier if the Court had it.

THE COURT: I have them in front of me. I believe I have all the relevant--

MR. GOLDBERG: You may or may not. I have outlined certain things. I gave a copy to Defense counsel.

THE COURT: All right.

MR. GOLDBERG: Your Honor, I'd also inquire whether the Court's copy of People's 183 for identification depicts the May 19th date, because on my photograph, it was covered over by a piece of red tape.

THE COURT: It is covered over by a piece of red tape. However, the tape is semitransparent and it does appear to be a "5" to me and I did look at it with a magnifying glass this afternoon.

MR. GOLDBERG: Because on my copy, as I said, I could not see that, although I don't think that's particularly important at any rate. I'd like to address counsel's argument and why it is we have proven the chain of custody of the blood vial, and I would like to divide it up into three points. First, I'd like to clarify what I regard to be--and what I so believe the Defense has defined as the rather narrow issue that the Court has to decide this afternoon. In other words, focus the Court's attention on what really is the only issue before the Court. Then I'd like to discuss the sufficiency of Detective Vannatter's and Detective Lange's testimony in establishing the chain of custody. And thirdly, I'd like to discuss the business records or official records exception to the hearsay rule. But the Court need never reach that third issue because I think you can dispose of this on the first and second issues. The first, the People and the Defense appear to agree, if you read the moving papers, that the law of the State of California is with respect to a blood vial, a reference vial, that the chain of custody of that reference vial can be established by a police officer who says that they were present and saw it being drawn and then took custody of that reference vial. The case that we cited for that proposition was People versus Lewis, and counsel also cited it. We both agree on how to interpret it. That's exactly what happened there, and I think we don't really need a case to tell us that because we know that routinely, that is how it is done in courts and probably in front of your Honor, even in driving under the influence cases where an officer says, "I was present. The blood sample was drawn. I took custody of it and delivered it to the crime laboratory," and that that is all that is needed to establish that the item is what it purports to be. Where we appear to disagree is, we appear to disagree as to the sufficiency of Detective Lange and Vannatter's testimony in accomplishing that end. And to be even more precise in framing the issue, what the Defense has said in their moving papers is, they have said that the alleged gap in the chain of custody exists at a single link of the chain, so to speak, in the jail dispensary. They say that between the time that the blood left the Defendant's arm and ended up in the possession of Detective Vannatter, there is a gap that prevents us from establishing chain of custody according to cases such as People versus Lewis and ordinary principles of common sense. So it is that precise link in the chain, the point in time between the time that the blood left the Defendant's arm, which Detective Vannatter saw and Detective Lange saw, and the time that they took physical possession of it that the Defense claims this gap exists where the Prosecution has failed to prove chain of custody. That is the only issue before this Court and the only issue that the Court is now being asked to decide and has to decide this afternoon. The other issues the Court need never reach at all if it resolves that issue, as I'm confident the Court will in favor of the Prosecution. Now, to take a look at the case law briefly before I get into the transcript just to drive home the point that this really is the only issue, not only do the People and the Defense agree in our interpretation of People versus Lewis, but I think we also agree in our interpretation of the other cases cited by the Defense, most notably American Mutual, which was a civil case, in which the decedent died in a car accident and his heirs wanted to obtain money from an insurance company and there was a Defense that he was intoxicated. It was back in the days of contributory negligence. And the Defense in that case wanted to show that he was intoxicated at the time. In that case, there was absolutely no evidence whatsoever, not a business record, not an official record, no percipient witness who saw the blood vial being drawn from the Defendant. But there was a blood vial that was introduced that purported to be his blood. And all the Court said there, quote, on page 497:

"It is rudimentary that a specimen taken from a human body for the purposes of analysis must be identified before such specimen or any analysis made from it maintains standing as evidence," unquote. Well, we don't need a case to tell us that. We know that from common sense. There has to be some evidence to say this blood came from this individual. That is all this case is saying, American Mutual. The other two cases--and I won't discuss them in any more detail--that counsel cited are McGowan and Madden, which both cited American Mutual, quoted the exact language that I just quoted to the Court. Actually, it wasn't a quote, but they used the exact same language, stood for the exact same proposition. And in those three cases, there was zero evidence, not any evidence whatsoever, not a percipient witness, not an admissible business or official record as to where this blood came from, and the Court simply said, "Well, you have to have some evidence to show that it is what it purports to be." We have that evidence here and the evidence is rather clear. Looking at the transcript testimony, your Honor--and I wrote out what I regard to be some of the more relevant points. Under no. 1 on my summary, we have testimony that Detective Vannatter and the Defendant went to the jail dispensary establishing personal knowledge. This is the part that--that counsel claims is lacking. We have Detective Vannatter asking the nurse to draw a blood sample for him, again establishing personal knowledge. We have him testifying in Court both to the People and the Defense that he personally observed the blood sample being drawn from the Defendant with the syringe, again establishing personal knowledge. And to quote, under no. 4 in my summary: "What did you do with the blood

Sample, if anything, after it was taken? "Answer: I maintained custody of the blood sample and turned it over to the criminalist." It seems pretty unambiguous. He's standing there, he's watching this happen, he sees it taken and the blood sample is then turned over to him and he brings it to Mr. Fung. Next, under where I'm summarizing Vannatter's testimony on cross--and this is perhaps even more significant--Mr. Shapiro asked: "Question: Where was Detective Lange at the time you took O.J.'s blood sample from the nurse? "Answer: He was with me." There's never been any doubt in this case as to whose blood sample that is and that Detective Vannatter had personal knowledge of it. It is almost as if the Defense now wants to somehow strike the question that was asked by Mr. Shapiro and the answer given as lacking foundation for personal knowledge. It was clear to Mr. Shapiro as it was to everyone listening to this testimony that these are events that he observed and witnessed--and witnessed that he has personal knowledge of. I won't read some of the remainder of the testimony that I've summarized over there, but I'd like to skip over to Detective Lange's testimony on direct examination where he was asked: "Question: Were you present when the blood sample was taken from the Defendant? "Answer: Yes. "Question: And where did it go after that? "Answer: It went to my part--it went into my partner's possession." And then later: "Okay. Did you see it after the blood sample was drawn from the Defendant and given to Detective Vannatter? "Yes. "When did you see it? "At the time it was withdrawn and turned over." It's very clear that they are there, that they are witnessing this, that he sees the blood drawn and he sees it turned over to Detective Vannatter. Now, what counsel is saying is that there's some sort of a gap. I don't see the gap. But what would this gap be? What happened? Did Detective Vannatter and Detective Lange suddenly become very squeamish, these two seasoned homicide detectives, and they fainted upon seeing the blood drawn from the Defendant's arm? Nurse Peratis woke them up by slapping them after he had switched the blood vials and handed the blood vial to Detective Vannatter so Detective Vannatter really doesn't know from his own personal knowledge that the vial came from the Defendant's arm, or did he ask Detective Vannatter like, "Will you gentlemen please turn your back to us, close your eyes and count to 10 for a few moments," and then he switched the blood vials and handed it to them, or did he ask them to leave the room?

I mean we can't really think of a logical scenario under which they didn't have personal knowledge of these events. It's very clear that they were there, that these are things that they saw and witnessed and that they're testifying to continuous sequence of events. And if that did happen, when he asked Detective Lange, "Where did the vial go after the blood was drawn," Detective Lange would say, "I don't know because I was on the floor. I just fainted." So this argument is clearly without merit and the transcript testimony is absolutely 100 percent clear. But if there is an alleged ambiguity, your Honor, then isn't that something that of course the jury ultimately has to decide because ultimately it is a jury issue? And let me just say on that score, this is not something that we're concerned about, because if there really was this ambiguity that counsel is talking about, we'd want to do something to clarify because we wouldn't want the case to go to the jury in a posture where a legitimate argument could be made by Mr. Cochran that we really don't know whether the reference sample came from the Defendant or some other person that might have been present at the dispensary at that time who really committed this crime coincidentally. But Mr. Cochran is not going to make that argument. And if it is--if he does, of course, we'll be very happy. But he's not going to make that argument, not only because it can't be supported by the transcript and it's not logical and doesn't involve common sense, not only because we all know that this is the Defendant's blood--there are many issues the Defense has raised in this case. They talked about contamination, conspiracy and whether things have been switched. But Mr. Cochran is not really going to stand before the jury and say, "We really don't know if this reference sample came from the Defendant or not," because it's not plausible and because he really can't argue that because there's another way that we can prove chain of custody or the identity of whose blood the reference sample is that is given to us by the advent of DNA technology that wasn't available at the time that many of the cases that I've cited to the Court and counsel cited were written. And that is that we know that item no. 12 and item no. 14--concededly both parties agreed to this--are blood from the Defendant. I'm talking about the dots of blood in the foyer, 12 and 14, the dot of blood in the bathroom. And remember, all we have to do here is to prove that the blood is what it purports to be. In other words, blood from the arm of the Defendant. We know that those are the Defendant's samples, not only because both parties seem to agree to that, but also because as to item no. 12, if I'm not mistaken--I'm sure the Court will correct me if I am--we have a five-probe match on the DQ-Alpha and also polymarkers, and although the Court may not like the word match, that seems like a match. That seems like virtual identity, and I don't think Mr. Cochran's really going to argue to the contrary. And we know that that matches the reference vial. So we know circumstantially, even without Thano Peratis, even without Detective Vannatter or Lange, from the DNA evidence that what is concededly blood of the Defendant in his home matches the reference vial, so the reference vial really didn't come from the mystery person that was present in the dispensary and whose blood was substituted while Detective Vannatter and Lange were out cold on the floor. So if there is any alleged ambiguity, and we don't think there is, it's clearly a jury issue and it's a jury issue that the People are not at all concerned about and I don't think Mr. Cochran is going to do a lot of arguing about when he has his opportunity to address the jury. Legally he can. Tactically, he won't.

I'd now like to discuss the business records exception, your Honor, and the official records exception, although, as I said to the Court in trying to defining the issues, the Court does not have to address that issue at all. It's completely unnecessary because as soon as the Court concludes, yes, this is sufficient, this is enough evidence to go before a jury, you don't have to reach this. And what I would say is that chain of custody, of course, is a factual issue, not really a legal one. It simply involves common sense, trying to prove that something is what the proponent is saying it is. And the only difference between the decision that your Honor's being asked to make this afternoon and the decision that the jury will be asked to make is that the standard of proof is different. Otherwise, everything else is the same. It's a common sense issue. It's a factual issue. The standard of proof for the jury could be beyond a reasonable doubt in their estimation if they find that this evidence is one of the circumstances that goes into a chain of circumstances upon which the People are relying proof of the guilt of the Defendant. They would have to find beyond a reasonable doubt that the item is what we say it is. In other words, the Defendant's blood, according to the circumstantial evidence instruction. But the standard of proof for your Honor is merely whether there's enough evidence. In other words, a prima facie case in order to be able to submit this factual dispute, if we can call it that, to the jury. And clearly, if the argument that is not the Defendant's blood is so poor that I don't think the Defense will ever make it in front of the jury, I don't see why the Court would accept it here where the standard of proof that your Honor is going to apply is significantly lower than the standard of proof that they will apply. But to get to the business records exception--I don't want to belabor the issue. I will try to address it quickly because, as I said, I don't think the Court needs to necessarily reach this--there are just a couple points I would like to make. First of all, what we are relying on to be more accurate in my terminology is not the business records exception, but the official records exception. And the only distinction between those two exceptions is that the official records exception does not require a custodian or other qualified witness to testify in order for the record to come in. Official records can be and usually are self-authenticating.

And in the article that I appended to my points and authorities, I described how it is that a laboratory report--and we're not dealing with a laboratory report here. That's even a more complex issue--but how a laboratory report can come into Court without ever having any witness testify in order to lay any foundation for that record under the official records exception. And Jefferson also talks about this in his treatise. And I won't go into all the elements of how that can be done. I laid it out. It was fairly succinct. It was on page 19 of the article that I read. And there are various inferences and presumptions that you apply in allowing an official record in without having an authenticating witness. The only one that I would like to specifically discuss, since the Court--if the Court feels it needs to simply look at that portion of my article--the only portion I would like to specifically discuss--

THE COURT: Go ahead.

MR. GOLDBERG: --is the timeliness requirement because it has been raised by counsel. That is, the suggestion that here, the evidence envelope contains the date of May the 19th. And what I would say there is that the case of People versus Udder, which we discussed and I also discussed in my article, says that one of the ways we can get an official record in without having a witness testify and prove the timeliness requirement that was made at or near the time of the act, condition or event described therein, is that we have a presumption in the State of California, as counsel noted, that a record that contains a date is deemed to have been or is presumed to be truly dated. And when the record indicates that the date that the record was filled out is the same as the date that the analysis was performed in People versus Udder--it was a chemical analysis, a laboratory report--that the trustworthy--that the timeliness requirement is satisfied simply by looking at the date on the evidence itself. In other words, if you have a date on the analyzed evidence report saying, "I did this analysis on June the 13th," and the report is dated June the 13th and you have evidence indicating that the test was on June the 13th, that in and of itself establishes the timeliness requirement without anyone testifying that it was made at or near the time of the act, condition or event.

Of course, here we can establish it because we know that the Defendant was brought in on June the 13th at the time that's contained on this record and we also know from Detective Vannatter that he received this envelope and that it obviously was filled out before he received it. So we can infer and presume the timeliness requirement from the face of the record itself, and the record is dated June the 13th as to the date that the blood was drawn. The May the 19th date is entirely irrelevant from a legal perspective because if the Court reads this, what I call the chain of custody statement, it is in the form of a declaration, the declaration saying, "I declare under penalty of perjury that the foregoing is true," and that this declaration was executed on 5-19-94. So the declaration is invalid because it obviously couldn't have been executed on 5-19-94. Presumably Mr. Peratis filled out the declaration portion of this prior to the time that he actually drew the blood. But the declaration portion was never admissible because we do not allow in declarations as any exception to the hearsay rule except in motions. But before a jury, the declaration itself isn't admissible.

What makes this admissible is not that it's in the form of a declaration and executed under penalty of perjury. What makes it admissible is that it meets all the requirements of the official records exception to the hearsay rule. So if there was no declaration on it, if it didn't say, "This is under penalty of perjury," it would be equally admissible. And the fact that there is a declaration under penalty of perjury doesn't make it any more admissible. The fact that it's incorrectly dated doesn't make it any less admissible. It's simply irrelevant from a legal perspective. Moreover, this document has been published before the jury without objection, most notably in the testimony of Collin Yamauchi summarized under no. 5 on my points and authorities, where Mr. Yamauchi is asked on cross-examination by the Defense attorney: "Question: Now, let's move in on the bottom half from, quote, `officers request to withdrawal,' unquote, down. "Now, do you recognize this to be a picture of the envelope that contains Mr. Simpson's blood vial?" Again, everyone understands that the testimony has established this is Mr. Simpson's blood vial and obviously they can't now object to their own question. We didn't object. "Answer: It's kind of hard to read, but I recognize the name of the nurse that corresponds to the vial of blood and my notes. "Question: And can you see now that this box we're focusing in on now refers to the affidavit of the person withdrawing blood? "Answer: I can read that affidavit. Quote, `a person withdrawing blood,' unquote. "Question: And it indicates that Thano Peratis, the nurse, gave the blood vial to Detective Vannatter." So here we have the Defense again publishing this, and it had previously been published by the People in front of a jury reading the declaration, putting it up on the elmo, and now they're saying that we're supposed to essentially unring that bell or strike that testimony even though they elicited it and unpublished this document. And on that score, I'd just like to bring to the Court's attention the case of People versus Dorsey which talks about the necessity of making specific and timely objections then and may also be of interest to the Court later on in other issues that I'm sure the Court is going to confront when it comes time to moving in exhibits.

THE COURT: Mr. Goldberg, would you conclude your remarks. You are at 20 minutes now.

MR. GOLDBERG: This is my conclusion. And if I may just point out, your Honor, that we did file our brief first on--technically, we were the moving party. So that would entitle us to two arguments.

THE COURT: Yes and no, because it's--actually the genesis of this was a motion to strike.

MR. GOLDBERG: Okay. Well, at any rate, I was concluding, your Honor.

THE COURT: All right.

MR. GOLDBERG: And maybe I shouldn't have taken so long because this is really a pretty simple matter and can simply be resolved by looking at Detective Vannatter's testimony. I do apologize for that. I hope I haven't made it sound more complex than it really is by treating it perhaps with more seriousness than it actually deserves.

But at any rate, in Dorsey, what happened was that a bank record was introduced in a nonsufficient funds case under the business records exception, but no testimony at all was presented at or near the time of the act, condition or event and no testimony to the modus preparation. And counsel in that case for the Defense objected "Objection, no foundation" repeatedly, and the objections were overruled. What the Court held in Dorsey is that that objection was not sufficiently specific because when you're making an objection, you have to state the specific grounds, which would mean that the specific objection that should have been made at that time is "Objection, no foundation as to manner and mode of preparation." That objection was not sufficient under California law in order to preserve the issue for an appellate Court to look at, and we know that objections have to be specific under California law under 353 of the evidence code. And they went on to say that:

"This is particularly true where, as in the instant case, the objection easily could have been cured by the party offering the testimony if the specific reasons for the objection had been stated to the trial Court." Well, here we have a situation where obviously, many of these technical issues that are being raised could easily have been cured if a timely objection had been made. But not only did they not make a specific objection, they didn't make any objection at all and in fact introduced this testimony on their own. So I do not believe that under 353 of the California evidence code, they have in any way preserved this issue for the Court to now decide whether this testimony that has already gone before the jury and been read into evidence should now somehow be removed from the record. So to summarize, your Honor, this testimony of Detective Lange and Vannatter has established a chain of custody. I don't think the Court needs to reach this, but it would qualify as an official and business record. And by the way, our own Supreme Court in People versus Chapman said that there was no constitutional challenge in a laboratory report coming in. That's a recent California Supreme Court case which is binding on the Court unlike a ninth circuit case.

And I would like to say also in conclusion that I didn't address the arguments of the Defense to the effect that certain testimony by Thano Peratis should not be allowed for lack of foundation. Counsel was not here when we had that discussion in the context of Mr. Matheson's testimony, and it really is not right I think at this point for analysis because we would only reach that if and when he ever got to the witness stand, and we submit that that need never occur. Thank you.

THE COURT: All right. Thank you. Mr. Uelmen, any brief comment?

MR. UELMEN: Thank you, your Honor. I realize we've probably already consumed more time than it would take to call Thano Peratis to the stand and elicit the testimony that is missing here. But it's an important question as to who is going to call this witness for obvious reasons. The suggestion that Detective Vannatter and Lange's testimony provides the necessary foundation simply leaves out the fact that neither detective offered any testimony based on personal knowledge that they observed the transfer of the blood from the syringe to the vial.

Now, we'll concede, if either of them had testified and very easily if they observed this, that testimony could have been elicited, that they watched the nurse as the syringe was evacuated into the vial, they never took their eyes off of it and then the vial was handed to them. In the absence of a contradictory certificate, they might have the foundation. But there's two problems. One is, no such testimony was elicited. And two is that we have a contradictory certificate in which the nurse himself signs under penalty of perjury that this procedure did not take place on the date that the People allege that it took place on. Now, with respect to the business records versus official record exception, it's quite clear under the evidence code that an official record is not self-authenticating either. Section 1280 requires a foundation showing that: "The writing was made by and within the scope of duty of a public employee; "That the writing was made at or near the time of the act," and the certificate itself discloses here that it was not. And:

"3, that the source of information and method and time of preparation were such as to indicate its trustworthiness." And that's an important qualification that I'll return to when I conclude. The other point I want to make is with respect to the Udder case. The People are citing Udder for much more than it really stands for. The Udder Court made it quite clear that the Defendant didn't even raise the objection in the trial Court as to the lack of foundation. Therefore, he couldn't raise it for the first time on appeal. But in passing, the Court noted that the certificate attached to the sample was dated correctly. And the evidence code requires the Court to presume that the date on the certificate is an accurate date. Here, that presumption cuts precisely the opposite direction. It doesn't authenticate this blood sample. In fact, it rebuts the authentication, because if we are going to presume, as the evidence code says we must, that this was executed on May 19th, then what does that tell us? That this procedure never took place. What is the explanation for that mistake? Mr. Goldberg gets up here and says, "Well, presumably he filled it out in advance." That's not what the evidence code says. The evidence code says presumably it's correct; and if there's some other explanation, you, as the proponent, have to come forward with evidence to prove that other explanation. What we're dealing with here in terms of proving the chain of custody is a matter of common sense. It is a matter of reliability. It is a matter of the confidence we have that, in fact, this is the blood of Mr. Simpson. And in the presence of a certificate filled out by the nurse that says it was executed a month before the blood was taken, there may be a number of explanations. It may be that the nurse had another envelope from another case with another vial of blood. It may be that he did sign it in advance. And in that case, it would contradict the testimony that the envelope and the certificate was supplied to him by Detective Vannatter. So whatever the explanation is, it raises some serious questions about what went on here. And our position quite simply is that those questions have to be answered by the People, by the Prosecution in order to meet their obligation to prove the chain of custody that is essential before the reference sample can be admitted in evidence.

THE COURT: Thank you, counsel. Prior to having this particular assignment, it was my privilege to serve down at the metropolitan courts where I tried 37 driving under the influence cases in a row, and this is an issue that came up with regularity there every day. The issue here is what weight one can give to the inference from this testimony, because concededly, both sides agree that there's no testimony by either Detective Vannatter or Detective Lange that they observed nurse Peratis to take the blood taken from Mr. Simpson's arm in the syringe and then place it in the vacutainer. However, Detective Lange did testify that he did receive from nurse Peratis the Defendant's blood sample. That creates the inference or a reasonable inference that can be taken from that testimony that he did, in fact, observed that or was present when that was done. That's an inference that I think one can reasonably draw from this evidence. The issue here is admissibility. The issue is--really goes to the weight that the trier of fact will accord this evidence based upon that factual absence of that particular testimony. So the objection will be overruled.

Also, as to the argument regarding an official record, there is the internal inconsistency between the dates. However, the first date does bear the correct date in the first part of the declaration by Thano Peratis, and the clear facts as elicited in this case indicated all of these events took place in June, not in May. So the objection on that basis is also overruled. All right. Anything else, counsel? All right. We'll stand in recess until tomorrow morning at 9:00. Thank you.

(At 4:30 p.m., an adjournment was taken until, Friday, June 30, 1995, 9:00 a.m.)


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

The People of the State of California,)


Vs.) No. BA097211)

Orenthal James Simpson,)


Reporter's transcript of proceedings Thursday, June 29, 1995

Volume 178 pages 34601 through 34865, inclusive



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

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

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



Index for volume 178 pages 34601 - 34865


Day date session page vol.

Thursday June 29, 1995 a.m. 34601 178 p.m. 34721 178


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



PEOPLE'S witnesses direct cross redirect recross vol.

Deedrick, 34677c 178 Douglas W. (Resumed) 34726c



WITNESSES direct cross redirect recross vol.

Deedrick, 34677c 178 Douglas W. (Resumed) 34726c



PEOPLE'S for in exhibit identification evidence page vol. Page vol.

459 - Diagram 34698 178 entitled "Hair shaft" (Computer printout)

460 - Diagram 34709 178 by Mr. Deedrick

461-A - Photograph 34712 178 of an examiner viewing evidence through a microscope

461-B - Photograph 34713 178 of an examiner removing hair from a pillbox and placing it on a glass slide

461-C - Photograph 34714 178 of an examiner placing hair on a slide with forceps

461-D - Photograph 34715 178 of an examiner adding permount on a slide

461-E - Photograph 34716 178 of an examiner blotting excess solvent

462-A - Photograph 34732 178 of an examiner looking at a slide using a stereomicroscope

462-B - Photograph 34735 178 of a close-up view of a slide under a stereomicroscope

462-C - Photograph 34735 178 of an examiner using a comparison microscope to compare materials

463 - Chart 34739 178 entitled "Microscopic comparison of hairs"

464 - Chart 34753 178 entitled "Black head hairs - 16 different individuals"

465 - Chart 34754 178 entitled "Microscopic comparison of hairs"

466 - Chart 34761 178 entitled "Fibers"

467 - Posterboard 34764 178 entitled "Cotton fibers"

468 - Posterboard 34766 178 depicting manmade fibers

469 - Photograph 34775 178 entitled "Microspectrophotometer"

469-A - Graph 34777 178 entitled "Absorbents"

469-B - Graph 34779 178 entitled "Absorbents"

469-C - Graph 34780 178 entitled "Absorbents"

470 - Photograph 34783 178 entitled "Fluorescent microscope"

471 - Photograph 34788 178 entitled "Ftir microscope attachment"

471-A - Photograph 34790 178 entitled "Infrared spectroscopy comparison chart"

472 - Photograph 34793 178 of a nylon automotive fiber

473 - Photograph 34798 178 of a nylon automotive fiber

474 - Photograph 34799 178 of a nylon automotive fiber


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

1219 - 1-page report 34612 178 re Masland industries