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?

MR. COCHRAN: Yes.

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.

(Recess.)

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--

THE COURT: K53.

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?

THE COURT: Yes.

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.

THE COURT: K--Q7A?

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

THE COURT: 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.

THE COURT: K18.

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.

MR. NEUFELD: Sorry.

(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.

MR. NEUFELD: Okay.

(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.

MR. NEUFELD: Yes.

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.

MR. NEUFELD: Okay.

(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.

THE COURT: Next.

(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?

MR. NEUFELD: Yes.

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.

(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?

THE COURT: Yes.

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.

THE COURT: Okay.

(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.

MR. DEEDRICK: I do.

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.

DIRECT EXAMINATION BY MS. CLARK

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?

MR. DEEDRICK: Yes.

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?

MR. DEEDRICK: No.

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?

MR. DEEDRICK: Yes.

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?

MR. DEEDRICK: Yes.

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?

MR. DEEDRICK: No.

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?

MR. DEEDRICK: No.

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?

MR. DEEDRICK: No.

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. DEEDRICK: Sure.

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?

MR. DEEDRICK: I did.

MS. CLARK: Someone reviewed all of your work?

MR. DEEDRICK: Yes.

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?

MR. DEEDRICK: I am.

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.

THE COURT: Yes.

MS. CLARK: And this will be a.

THE COURT: Yes.

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.

THE COURT: Yes.

(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.)

LOS ANGELES, CALIFORNIA; THURSDAY, JUNE 29, 1995 1:11 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

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

THE COURT: Yes.

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