DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

APPEARANCES: (VINCE BUCCI, STILL CAMERA PHOTOGRAPHER; KELLI SAGER, ESQUIRE.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

(CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ON THE MEDIA MATTER. MISS SAGER.

MS. SAGER: GOOD MORNING, YOUR HONOR.

THE COURT: ALL PURPOSE MEDIA COUNSEL, PLEASED TO SEE YOU HERE.

MS. SAGER: I'M HERE TODAY ON BEHALF OF THE POOL, YOUR HONOR. THE PHOTOGRAPHER WOULD LIKE TO ADDRESS THE COURT AND THEN I WOULD LIKE TO ADD A FEW WORDS IF I MIGHT.

THE COURT: ALL RIGHT.

MR. BUCCI: GOOD MORNING, YOUR HONOR. I WANT TO APOLOGIZE FOR ANY PROBLEMS THAT I MIGHT HAVE CAUSED WITH TESTING THE EQUIPMENT YESTERDAY.

THE COURT: YOU'RE LUCKY I DIDN'T HAVE MY TOOL KIT WITH ME.

MR. BUCCI: YES, SIR. WE WERE EXPERIENCING SOME PROBLEMS WITH THE CAMERA PRIOR TO THE LUNCH HOUR AND I FELT --

THE COURT: SUCH AS?

MR. BUCCI: NO FOCUSING AND NO FIRING, WHICH IS ALL ON THE SAME SWITCH. AND THIS IS A PROBLEM WE'VE HAD IN THE PAST. AND THE CAMERAS WERE CONFINED DURING THE FIRST SESSION AND THEN I DOWNLOADED THE FILM, CHANGED BATTERIES, WENT BACK OUT, AND I HAD NOTHING FOR THE REST OF THE MORNING. SO I FELT IT NECESSARY AT THE LUNCH BREAK TO TEST IT AGAIN AND MAKE SURE IT WAS WORKING. AND IF IT HADN'T BEEN, I HAD THE REST OF THE LUNCH HOUR TO TRY TO RESOLVE THE PROBLEM. AND IT WAS AT THE TIME THAT I WAS TESTING IT THAT I NOTICED ALL THE KIDS IN HERE. AND I DIDN'T REALLY ACTUALLY EVEN SEE YOU AT FIRST, BUT THEN NOTICED IT WAS YOU THAT WAS TALKING TO THE KIDS. AND I -- FOR WHATEVER REASON, THE CAMERA STARTED WORKING AGAIN, BUT I HAD TO FIRE IT TO MAKE SURE THAT IT WAS OPERATING RIGHT, AND I TOOK TWO SHOTS, TOOK --

THE COURT: THAT'S WHY WE HAVE THE COURT SEAL UP THERE. THAT'S WHAT THAT'S FOR, TEST SHOTS.

MR. BUCCI: YES, SIR. THAT'S WHERE I KIND OF BLEW IT. I DIDN'T USE THE BEST JUDGMENT AND I TOOK A PICTURE OF YOU TALKING WITH THE KIDS. AND ONCE I ESTABLISHED THE FACT THAT THE CAMERA WAS WORKING WELL, I SHUT IT DOWN AND LEFT FOR LUNCH. AND THEN AFTER LUNCH -- DURING LUNCH, I GOT THINKING TO MYSELF THAT THIS WAS KIND OF A NEAT PICTURE, SOMETHING DIFFERENT AND, YOU KNOW, YOU TAKING TIME OUT OF YOUR SCHEDULE TO TALK WITH THE KIDS AND I THOUGHT IT MIGHT BE A NICE FEATURE PHOTO. AND THAT'S WHY -- I RAN INTO TASIA BEFORE THE AFTERNOON SESSION STARTED AND ASKED HER IF SHE COULD ASK YOU TO MAKE AN EXCEPTION IN THIS CASE AND SEE IF IT WOULD BE POSSIBLE TO USE THAT SHOT. AND I JUST THOUGHT IT WAS KIND OF A NEAT PHOTO SHOWING -- AGAIN, SHOWING YOU KIND OF TAKING TIME OUT OF YOUR BUSY SCHEDULE TO TALK WITH THESE KIDS. AND THAT WAS JUST POOR JUDGMENT ON MY PART.

THE COURT: HOW MANY FRAMES DID YOU TAKE?

MR. BUCCI: THREE.

THE COURT: ALL RIGHT. ANY OTHER COMMENT?

MR. BUCCI: I'M JUST SORRY AGAIN TO --

THE COURT: YOU UNDERSTOOD THAT WAS A CLEAR VIOLATION OF THE COURT'S RULES REGARDING CAMERAS IN THE COURTROOM?

MR. BUCCI: YES. YES. AND I KNOW THERE WAS SOME PROBLEMS RECENTLY WITH ANOTHER MEMBER OF THE MAGAZINE POOL, AND I SHARE IN YOUR CONCERN AND FRUSTRATION ABOUT ALL OF THIS.

THE COURT: WHO DO YOU WORK FOR?

MR. BUCCI: AGENCE FRANCE-PRESSE.

MS. SAGER: ON BEHALF OF THE POOL, WE OFFER OUR APOLOGIES. WE DO HAVE THE NEGATIVES, IN FACT, THE ENTIRE ROLL OF FILM THAT WAS TAKEN YESTERDAY. SO WE CAN GIVE THE COURT THE NEGATIVES OF THOSE THREE SHOTS. NO PHOTOGRAPHS WERE PRINTED. THERE WAS NOT AN INTENTION, AS I UNDERSTOOD, EVER TO PRINT A COPY OF THE PHOTOGRAPHS THAT WERE TAKEN DURING THE TEST WITHOUT PERMISSION FROM THE COURT TO DO SO. AND I HAVE ASKED THEM TO BRING AND THEY HAVE BROUGHT TODAY THE NEGATIVES SO THAT THEY CAN BE GIVEN TO THE COURT AND THE COURT TO DISPOSE OF OR USE HOWEVER YOU WOULD LIKE. THIS AGAIN IS AN UNFORTUNATE INCIDENT AND A MISTAKE WAS MADE AND A LAPSE OF JUDGMENT, WHICH I WOULD ASK THE COURT ON BEHALF OF THE POOL NOT TO PUNISH THE ENTIRE POOL FOR WHAT WAS CERTAINLY NOT THE BEST JUDGMENT, BUT NOT AN INTENTIONAL OR DELIBERATE FLAUNTING OF THE COURT'S AUTHORITY. AND THE PHOTOGRAPHER DID NOT INTEND TO USE THE PHOTOGRAPHS AND DIDN'T TRY TO USE THEM WITHOUT GETTING THE COURT'S PERMISSION. WE HAVE ASKED AND HE ACTUALLY HAS VOLUNTEERED NOT TO BE A MEMBER OF THE INDIVIDUALS RUNNING THE POOL CAMERA AT ANY POINT DURING THIS PROCEEDING SO THAT HIS LAPSE IN JUDGMENT PUNISHES HIMSELF, BECAUSE HE WILL NO LONGER BE ABLE TO PARTICIPATE, BUT NOT PUNISH THE REST OF THE POOL. AND IF THERE ARE OTHER MEASURES --

THE COURT: IT'S SORT OF PIER PRESSURE THAT KEEPS THE -- KEEPS EVERYBODY ELSE IN LINE; WOULDN'T YOU SAY?

MS. SAGER: WELL, I THINK THERE ARE TWO THINGS THAT KEEP PEOPLE IN LINE, YOUR HONOR. ONE IS THE FEAR OF HAVING TO APPEAR BEFORE YOU AND EXPLAIN YOUR ACTIONS. AND I KNOW, AS HE INDICATED, THE PHOTOGRAPHER FEELS VERY BADLY ABOUT WHAT HAPPENED AND WAS NOT INTENDING TO DO ANYTHING TO FLAUNT THE COURT'S ORDER, BUT WAS SIMPLY TESTING THE CAMERA AND DID SO IN A WAY THAT WAS NOT APPROPRIATE. BUT HAD THERE BEEN AN ATTEMPT TO USE THE PHOTOGRAPHS WITHOUT THE COURT'S PERMISSION, THEN I WOULD UNDERSTAND PERHAPS A MORE SEVERE SANCTION. BUT UNDER THE CIRCUMSTANCES, THIS PARTICULAR INDIVIDUAL HAS I THINK PAID A PENALTY AND HAS BEEN VERY UPSET AND AGONIZED BY THIS AND WILL PAY THE PENALTY OF NOT BEING ABLE TO PARTICIPATE IN THE POOL, BUT THE REST OF THE POOL I THINK WOULD NOT -- IT WOULD NOT BE A JUST RESULT FOR THEM TO BE PUNISHED FOR WHAT WAS REALLY A MISTAKE OR LAPSE OF JUDGMENT.

THE COURT: BUT, YOU KNOW, IN THE MARINE CORPS, ONE OF THE GREATEST TEACHING TECHNIQUES IS, IF ONE MARINE FAILS, THEN EVERYBODY ELSE HAS TO PAY THE PRICE. ENCOURAGES THAT INDIVIDUAL TO ABIDE BY THE RULES.

MS. SAGER: WELL, I CAN UNDERSTAND. AND I AS --

THE COURT: AND THIS WOULD CERTAINLY BE A GREAT LESSON; DON'T YOU THINK?

MS. SAGER: WELL, YOUR HONOR, I THINK YOU LEARN A LESSON IN A NUMBER OF DIFFERENT WAYS AND I THINK A LESSON HAS BEEN LEARNED BY ALL MEMBERS OF THE POOL THAT THAT POSSIBILITY EXISTS, THAT THE POOL CAMERA MIGHT BE PULLED, AND I KNOW THAT MANY MEMBERS OF THE PHOTO POOL HAD A VERY SLEEPLESS NIGHT LAST NIGHT KNOWING THIS HAD OCCURRED AND THAT -- SO THAT THE LESSON HAS NOT GONE UNLEARNED. AND AS I SAID, IF THIS WERE AN INSTANCE WHERE SOMEBODY HAD DELIBERATELY OR MALICIOUSLY TRIED TO TAKE PHOTOGRAPHS AND PRINT THEM OUT AND PUBLISH THEM, A MORE SEVERE SANCTION MIGHT BE APPROPRIATE AND I WOULD HAVE A MORE DIFFICULT TIME APPEARING BEFORE YOU AND ASKING FOR LENIENCY. BUT UNDER THE CIRCUMSTANCES -- IN FACT, HAD A PHOTOGRAPH EVER BEEN TAKEN OF THE SEAL, THAT WOULD TECHNICALLY HAVE BEEN A VIOLATION OF THE COURT'S ORDER, AND THE FACT THAT HE TOOK A PICTURE TRYING TO SIMULATE WHAT WERE ACTUAL CONDITIONS WHERE YOU WOULD ACTUALLY GET PICTURES OF PEOPLE WAS, AS I SAID, A LAPSE IN JUDGMENT, BUT NOTHING MALICIOUS OR INTENTIONAL IN TERMS OF USING THE PHOTOS.

THE COURT: OKAY.

MS. SAGER: WE ASK FOR YOUR FORGIVENESS.

THE COURT: MAYBE. ALL RIGHT. THE COURT SANCTION WILL BE AS FOLLOWS: MISS SAGER, YOU ARE TO TURN THE NEGATIVES OVER TO THE COURT.

MS. SAGER: WE HAVE TAPED -- SO THE COURT CAN SEE THE ENTIRE ROLL. THE ENTIRE ROLL IS HERE. THE FIRST THREE PICTURES WHERE THE BREAK IS WERE THE PICTURES TAKEN DURING THE RECESS.

THE COURT: THE OFFENDING PHOTOGRAPHER WILL PAY A MONETARY SANCTION TO THE COURT OF $50. HE IS NOT BANNED FROM THE POOL. HOWEVER, HE IS PUT ON ROTATION. THE CAMERA WILL NOT BE REVIVED UNTIL MONDAY. THAT'S THE SANCTION.

MS. SAGER: THANK YOU, YOUR HONOR.

(RECESS.)

(APPEARANCES AS HERETOFORE NOTED, THE DEFENDANT NOW BEING PRESENT; ALSO PRESENT, JANET LEVINE, ESQUIRE, FOR ROBERT KARDASHIAN.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: GOOD MORNING, COUNSEL. BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT IN COURT WITH HIS COUNSEL, MR. SHAPIRO, MISS CHAPMAN, MR. COCHRAN, MR. BAILEY, PEOPLE REPRESENTED BY MISS CLARK AND MR. DARDEN. THE JURY IS NOT PRESENT. COUNSEL -- DO WE HAVE COUNSEL FOR MR. KARDASHIAN?

MS. LEVINE: YOUR HONOR.

THE COURT: ALL RIGHT. GOOD MORNING, COUNSEL. YOUR NAME FOR THE RECORD, PLEASE?

MS. LEVIN: JANET LEVINE APPEARING ON BEHALF OF ROBERT KARDASHIAN, YOUR HONOR.

THE COURT: ALL RIGHT. COUNSEL, WE'VE HAD THE OPPORTUNITY TO CONVERSE IN CHAMBERS BETWEEN YOURSELF, MYSELF AND MR. DARDEN. MY UNDERSTANDING IS, OUR AGREEMENT IS THAT MR. DARDEN WILL MAKE AVAILABLE TO YOU THE GENERAL AREAS OF INQUIRY OR THE PROPOSED AREAS OF INQUIRY BY THE CLOSE OF BUSINESS TODAY AND THAT YOU WILL PROVIDE ME YOUR BRIEF ON THE ISSUES BY THE CLOSE OF BUSINESS APRIL 5.

MS. LEVINE: THAT'S CORRECT, YOUR HONOR. I UNDERSTAND ALSO MR. DARDEN WILL BE PROVIDING ME WITH A COPY OF A VIDEOTAPE AS WELL AS SOME STILL PICTURES.

MR. DARDEN: THAT'S CORRECT, YOUR HONOR, BUT WE'LL HAVE TO CHARGE HER FOR THE VIDEOTAPE.

MS. LEVINE: AS LONG AS IT'S NOT TOO EXPENSIVE, THAT'S FINE, YOUR HONOR.

THE COURT: ALL RIGHT.

MS. LEVINE: THANK YOU.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. ANYTHING ELSE WE NEED TO PUT ON THE RECORD, COUNSEL? ALL RIGHT. LET'S HAVE THE JURORS JOIN US, PLEASE.

(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'VE NOW BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. GOOD MORNING, LADIES AND GENTLEMEN.

THE JURY: GOOD MORNING.

THE COURT: ALL RIGHT. MR. DARDEN, YOU MAY CALL YOUR NEXT WITNESS.

MR. DARDEN: THANK YOU, YOUR HONOR. GOOD MORNING, LADIES AND GENTLEMEN.

THE JURY: GOOD MORNING.

MR. DARDEN: YOUR HONOR, THE PEOPLE CALL SUSAN SILVA.

THE COURT: ALL RIGHT. MISS SILVA, COME FORWARD, PLEASE.

SUSAN SILVA, CALLED AS A WITNESS BY THE PEOPLE, WAS SWORN AND TESTIFIED AS FOLLOWS:

THE CLERK: RAISE YOUR RIGHT HAND, PLEASE. YOU DO SOLEMNLY SWEAR THAT THE TESTIMONY YOU MAY GIVE IN THE CAUSE NOW PENDING BEFORE THIS COURT, SHALL BE THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?

THE WITNESS: I DO.

THE CLERK: PLEASE HAVE A SEAT IN THE WITNESS STAND AND STATE AND SPELL YOUR FIRST AND LAST NAMES FOR THE RECORD.

THE WITNESS: SUSAN SILVA, S-I-L-V AS IN VICTOR A.

DIRECT EXAMINATION

BY MR. DARDEN:

Q: GOOD MORNING.

A: GOOD MORNING.

Q: MISS SILVA, WHO ARE YOU EMPLOYED BY?

A: WESTEC SECURITY, INCORPORATED.

Q: AND WHAT TYPE OF BUSINESS IS WESTEC SECURITY IN?

A: WE'RE IN THE BUSINESS OF INSTALLING, MONITORING, PROVIDING SERVICE AND PATROLLING ALARM SYSTEMS.

Q: OKAY. AND WHAT IS YOUR JOB TITLE WITH WESTEC SECURITY?

A: I'M DIRECTOR OF ADMINISTRATION.

Q: OKAY. AND ARE YOU AN EXPERT ON WESTEC-INSTALLED SECURITY SYSTEMS?

A: I WOULDN'T CONSIDER MYSELF AN EXPERT, BUT I'M KNOWLEDGEABLE ABOUT THEM.

Q: OKAY. HOW LONG HAVE YOU WORKED FOR WESTEC?

A: SIX YEARS.

Q: OKAY. AND WHAT DID YOU DO PRIOR TO THAT?

A: I WORKED FOR APR ALARM SYSTEMS FOR APPROXIMATELY SEVEN YEARS.

Q: HAVE YOU VISITED THE HOUSE AT 360 NORTH ROCKINGHAM?

A: YES, I HAVE.

Q: AND DOES THAT HOUSE, THE DEFENDANT'S HOUSE, HAVE A WESTEC-INSTALLED SECURITY SYSTEM?

A: YES, IT DOES.

Q: AND HAVE YOU SEARCHED THE RECORDS AT WESTEC TO DETERMINE THE NATURE AND TYPE OF SECURITY SYSTEM INSTALLED AT THE DEFENDANT'S HOME ON JUNE 12 AND 13, 1994?

A: YES, I HAVE.

Q: AND CAN YOU DESCRIBE THAT SYSTEM FOR US, PLEASE?

A: AT THE CURRENT TIME, IN JUNE OF 1994, HE HAD A SYSTEM WHICH ENTAILED A PERIMETER ALARM SYSTEM, WHICH MEANS THAT THERE ARE CONTACTS ON MANY OF THE DOORS AROUND THE EXTERIOR OF THE SYS -- OF THE HOUSE; AS WELL, HE HAD ONE INTERIOR BEAM IN THE FRONT FOYER.

Q: SO YOU SAY THERE WERE CONTACTS ON MANY OF THE DOORS?

A: THAT IS CORRECT.

Q: MANY OF THE EXTERIOR DOORS?

A: YES.

Q: AND THE BEAM YOU JUST DESCRIBED, WHERE WAS THAT BEAM?

A: THE BEAM WAS IN THE FRONT FOYER AS YOU'RE COMING IN, IF YOU WERE TO WALK IN, IT WAS DIRECTLY -- AS YOU WERE WALKING IN THE DOOR, IT WOULD BE DIRECTLY TO YOUR LEFT.

Q: AND ASSUMING THE SYSTEM WAS ON OR ACTIVATED AT THE TIME, WHAT WOULD HAPPEN IF YOU INTERRUPTED THAT BEAM?

A: THE SYSTEM WOULD BE ACTIVATED AND AN ALARM SIGNAL WOULD BE SENT INTO WESTEC IF THAT BEAM WAS A PART OF THE SYSTEM AND ACTIVATED.

Q: NOW, WAS THERE A MAIN COMPUTER SOMEWHERE LOCATED IN 360 NORTH ROCKINGHAM?

A: YES. THE MAIN COMPUTER OR BOX OR GUTS AS YOU WOULD CALL IT, THE PROCESSING UNIT, WAS IN HIS LIBRARY.

MR. DARDEN: WE HAVE A BOARD. WE WOULD LIKE TO MARK IT PEOPLE'S NEXT IN ORDER, 156 I BELIEVE.

THE COURT: 156.

(PEO'S 156 FOR ID = BOARD)

Q: BY MR. DARDEN: ARE YOU FAMILIAR WITH THE TERM "ENTRY PANEL"?

A: YES, I AM.

Q: AND WHAT DOES THAT TERM MEAN?

A: AN "ENTRY PANEL" IS A PANEL THAT WOULD BE IMMEDIATELY INSIDE AN AREA TO TURN THE SYSTEM ON OR OFF.

Q: WOULD THAT BE A KEYPAD?

A: YES, IT WOULD BE.

Q: AND THE OWNER OR IN THIS CASE, THE DEFENDANT, COULD PUNCH IN A SECURITY CODE TO ACTIVATE OR DEACTIVATE THE ALARM SYSTEM?

A: THAT IS CORRECT.

Q: MISS SILVA, IF YOU WILL, WILL YOU STEP DOWN FROM THE WITNESS STAND AND STEP OVER TO THE BOARD MARKED PEOPLE'S 156. THERE IS A POINTER BEHIND YOU HANGING, HANGING FROM THE WITNESS STAND. HOW MANY ENTRY PANELS OR KEYPADS ARE THERE AT 360 NORTH ROCKINGHAM?

A: FOR THE LOWER PORTION OF THE ALARM SYSTEM, HE HAD A TOTAL OF FOUR. THERE WERE FOUR KEYPADS THAT HE COULD TURN IT ON AND OFF. THERE ARE TWO EXTERIOR, WHICH ARE DIFFERENT TYPES OF PANELS. ONE WAS INSTALLED OUTSIDE OF THE FRONT ENTRANCE IN THE FOYER AND THE OTHER WAS RIGHT OUTSIDE THE GARAGE IN THE MAIN GARAGE AREA. HE ALSO HAD TWO KEYPADS FROM THE INSIDE THAT WERE, ONE INSIDE THE FRONT ENTRYWAY AND THE OTHER RIGHT OUTSIDE OF THE MAID'S ROOM.

Q: NOW, TO USE THE ENTRY PAD LOCATED IN THE GARAGE, ONE WOULD HAVE TO BE INSIDE THE GARAGE; IS THAT CORRECT?

A: THAT IS CORRECT.

Q: AND WITH REGARD TO THE KEYPADS INSIDE THE LAUNDRY ROOM AND THE INTERIOR ENTRANCE WAY TO THE HOUSE, YOU WOULD HAVE TO BE INSIDE THE HOUSE OR INSIDE THE LAUNDRY ROOM TO ACTIVATE THOSE?

A: THAT IS CORRECT.

Q: BUT THERE IS ONE, ONE KEYPAD AT THE EXTERIOR FRONT DOOR; IS THAT RIGHT?

A: YES, THERE IS.

Q: JUST OUTSIDE THE FRONT DOOR?

A: YES, THERE IS.

Q: AND THE KEYPADS YOU JUST DESCRIBED, DO THEY ALL REQUIRE A SECURITY CODE TO ACTIVATE OR DEACTIVATE THE ALARM SYSTEM?

A: YES, THEY DO.

Q: NOW, ARE THERE ALSO SECURITY SENSORS?

A: YES. THERE ARE SENSORS ON MANY OF THE DOORS.

Q: OKAY. BEFORE I ASK YOU WHERE THEY ARE, LET ME ASK YOU THIS. DIRECTING YOUR ATTENTION TO THE MAID'S QUARTERS AND KAELIN'S ROOM IN THE LOWER PORTION OF THE DIAGRAM THERE, ARE THERE ANY SECURITY SENSORS OR ENTRY PANELS LOCATED IN ANY OF THOSE ROOMS?

A: NO. THERE IS -- WE AT ONE TIME BELIEVED THAT THERE WAS SOME SORT OF A SENSOR. BUT WHEN -- THE DAY I WAS OUT AT THE PROPERTY, THE SENSOR WAS NOT CONNECTED TO THE STAIR ROOM OR THE ROOMS FROM KATO'S ROOM TO THE BILLIARD ROOM, BUT THERE IS NO ON AND OFF KEYPAD OF ANY TYPE TO DEACTIVATE THE ALARM SYSTEM WITH THE SAME TYPE OF KEYPADS THAT ARE INSTALLED AT ANY ONE OF THESE FOUR LOCATIONS.

Q: OKAY. SO IN OTHER WORDS THEN, THERE IS NO -- THERE ARE NO SECURITY SENSORS ANYWHERE FROM THE OFFICE HERE TO THE MAID'S ROOM?

A: THAT'S CORRECT.

Q: COULD YOU DESCRIBE FOR US EACH AND EVERY SENSOR OR SECURITY SENSOR THAT IS LOCATED INSIDE THE HOUSE, PLEASE?

A: IF YOU WERE TO BEGIN AT THE FRONT DOOR, THERE IS A DOOR CONTACT THAT IS -- MOST OF THEM ARE -- YOU'RE NOT ABLE TO SEE THEM. THEY'RE RECESSED IN THE DOOR ITSELF ON THE TOP, ON THE SIDE SO THAT IT'S NOT REALLY VISIBLE. BUT THERE'S ONE AT THE FRONT DOOR, AND YOU GO BACK TO THE PATIO DOORS OVER ON THIS SIDE, THERE IS ONE ON THE DOOR THERE, ONE ON THE DOOR HERE, ANOTHER DOOR CONTACT AS WELL HERE (INDICATING).

Q: OKAY. NOW, THOSE WOULD BE THE FRENCH DOORS LEADING OUT TO THE POOL; IS THAT RIGHT?

A: CORRECT. THEY'RE VERY LARGE, PROBABLY 10 OR 14 FOOT TALL FRENCH DOORS.

Q: OKAY.

A: THERE'S ALSO FRENCH DOORS ON THIS SIDE, THERE WAS ONE HERE, THERE'S ONE HERE, THERE'S A SMALL DOOR GOING OUT TO THE POOL AREA AS WELL THAT THERE'S A SENSOR. FINALLY OVER HERE AT THE MAID'S ROOM GOING OUTSIDE ON THE SIDE YARD, THERE'S A SENSOR AND ONE SENSOR GOING OUT TO THE GARAGE (INDICATING).

Q: IS THERE ANY EXTERIOR DOOR TO THE HOUSE THAT DOES NOT -- THAT DOES NOT HAVE A SENSOR ATTACHED TO IT OR COVERED BY IT?

A: WELL, WHEN WE LOOKED AT IT, IT WAS VERY DIFFICULT BECAUSE AT THE TOP OF MANY OF THESE LARGE FRENCH DOORS WERE SOME DEAD BOLTS. SO AT THE TIME -- AND BECAUSE IT'S SO TALL AND WE DIDN'T WANT TO GET A LADDER AND UNLOCK THEM, WE WEREN'T ABLE TO TELL WHETHER THERE WAS A CONTACT OR NOT ON THOSE PARTICULAR DOORS. SO MY ESTIMATION IS THAT THE ONE WAS A STANDARD CLOSED DOOR AT ALL TIMES BECAUSE IT ALSO HAD A SLIDING BAR IN THE BOTTOM AND THE OTHER WAS A DOOR THAT WOULD BE OPEN AND CLOSED AT ALL TIMES.

Q: YOU JUST MENTIONED THAT YOU SAW SOME DEAD BOLTS?

A: YES.

Q: WHERE DID YOU SEE DEAD BOLTS?

A: THERE'S DEAD BOLTS, LARGE DEAD BOLTS UP AT THE TOP OF THE -- THE PAT -- THE WINDOWS THIS SIDE AND THEY'RE VERY HIGH UP, PROBABLY 12 OF THEM AT THE VERY TOP OF THE WINDOWS THEMSELVES.

Q: AND YOU'RE INDICATING FOR THE RECORD THE LIVING ROOM AND THE FAMILY ROOM?

A: CORRECT. LIVING ROOM, FAMILY ROOM. THERE ALSO WAS A DEAD BELT AT THE MAID'S ROOM GOING OUTSIDE HERE BECAUSE WE WERE UNABLE TO AGAIN OPEN THAT DOOR.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. DARDEN: OKAY. SO THAT THE RECORD IS CLEAR, THERE'S A ROOM HERE AT THE BOTTOM LEFT-HAND PORTION OF THE DIAGRAM THAT IS LABELED "MAID"; IS THAT CORRECT?

A: YES, THERE IS.

Q: AND THAT IS ADJACENT TO THE LAUNDRY ROOM?

A: THAT IS CORRECT.

Q: OKAY. AND YOU CAN ACCESS THAT ROOM FROM INSIDE THE HOUSE; IS THAT CORRECT?

A: YES. YOU WOULD WALK THROUGH THE BREAKFAST AREA OR THROUGH THE GARAGE.

Q: YOU CAN ALSO ACCESS THAT ROOM FROM OUTSIDE THE HOUSE?

A: THAT IS CORRECT.

Q: AND THIS MAID'S ROOM WAS DISTINGUISHED FROM THE OTHER MAID'S ROOM WHICH IS AT THE OPPOSITE END OF THE DIAGRAM?

A: YES. I'M SORRY. I DIDN'T SEE THIS ONE WAS ALSO LABELED AS MAID'S ROOM. YES, IT WOULD BE THE MAID'S ROOM THAT WAS INSIDE THE INTERIOR OF THE HOUSE.

Q: THANK YOU. OKAY. YOU WERE TELLING US YOU SAW DEAD BOLTS AT THE LIVING ROOM FRENCH DOORS AND AT THE FAMILY ROOM FRENCH DOORS?

A: CORRECT.

Q: AND WHERE ELSE DID YOU SEE DEAD BOLTS?

A: THERE WAS ANOTHER DEAD BOLT HERE AT THE MAID'S -- OUTSIDE OF THE MAID'S ROOM FROM THE INTERIOR OF THE HOUSE GOING TO THE EXTERIOR, ONE -- THE MAID'S ROOM CLOSEST TO THE GARAGE.

Q: NOW, AT ONE POINT, YOU POINTED OUT A SENSOR LOCATED AT A REAR DOOR LEADING OUT TO THE PATIO, REAR PATIO; IS THAT RIGHT?

A: YES.

Q: OKAY. AND WE'VE INDICATED ON THE DIAGRAM 40 SECONDS; IS THAT RIGHT?

A: YES. THAT'S A SPECIAL DOOR RIGHT AT THE -- NOT IDENTICAL TO THE LARGE FRENCH DOORS, BUT A SMALL DOOR RIGHT ON THE SIDE.

Q: NOW, WHAT DID YOU MEAN OR INTENDED TO CONVEY WHEN YOU HAD THE 40 SECONDS PLACED THERE OR INDICATED THERE?

A: THAT WAS THE ONE DOOR ON THE BACKSIDE OF THE HOUSE THAT IF SOMEONE WAS AT THE POOL AREA AND THE ALARM SYSTEM WAS SET, THEY WOULD BE ABLE TO ENTER THIS DOOR (INDICATING) AND HAVE A RINGING SOUND AND BE ABLE TO GO TO ONE OF THE KEYPADS AND DISARM IT. ALL THE OTHER DOORS ARE ON IMMEDIATE SENSORS, WHICH MEANS THAT IF THEY WERE TO COME IN THE FRONT SIDE, THEY WOULD HAVE TO DEARM THE SYSTEM FROM THE OUTSIDE KEY PANEL AND ALSO THE GARAGE KEY PANEL OR ELSE THE SYSTEM GOES IMMEDIATELY INTO AN ALARM. ON MANY SYSTEMS THAT DON'T HAVE THESE EXTERIOR PANELS, YOU HAVE ENTRY, EXITS TO GIVE YOU THE TIME TO BRING YOUR GROCERIES IN, PUT THEM ON THE COUNTER AND GO TURN YOUR ALARM SYSTEM OFF OR LET THE KIDS GO OR WHATEVER. AND THIS PARTICULAR SYSTEM, HE HAD TO DISARM IT FROM THE OUTSIDE BEFORE HE CAME IN OR ELSE YOU'D HAVE AN IMMEDIATE ALARM SYSTEM -- OR I AM SORRY -- AN ALARM ACTIVATION. THIS PARTICULAR DOOR, HE HAD 40 SECONDS TO, IF INDEED THE ALARM SYSTEM WAS SET, 40 SECONDS TO GO TO ANY ONE OF THESE KEYPADS AND TURN IT OFF. IT WOULD NOT SEND AN ALARM SIGNAL.

Q: AND WHAT IF THE GLASS WAS BROKEN OR A WINDOW WAS BROKEN? WOULD THAT ACTIVATE THE ALARM?

A: NO. HE DID NOT HAVE ANY GLASS BREAKS ON HIS SYSTEM. SO THERE WAS NOT THAT TYPE OF PROTECTION. IT WOULD HAVE PHYSICALLY HAVE HAD TO MOVE OR CAUSE THE TWO MAGNETS, WHICH IS WHAT A CONTACT IS, TO MOVE AND CAUSE AN ALARM.

MR. DARDEN: OKAY. MAY I HAVE ONE MOMENT, YOUR HONOR?

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. DARDEN: NOW, IS WESTEC ADVISED OR SIGNALED SOMEHOW EACH AND EVERY TIME THAT THE ALARM IS ACTIVATED?

MS. CHAPMAN: OBJECTION. VAGUE.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: IF YOU COULD PLEASE DEFINE INDICATED OR -- I'M SORRY -- ACTIVATED TO ME.

Q: BY MR. DARDEN: OKAY. WELL, LET'S SAY MR. SIMPSON WAS TO TURN ON THE ALARM, OKAY? WITH ME SO FAR? IF HE TURNED THE ALARM ON, WOULD WESTEC SOMEHOW BE NOTIFIED? WOULD THERE BE SOME SIGNAL OR SOMETHING SENT TO WESTEC INDICATING THAT THE ALARM AT MR. SIMPSON'S HOUSE IS NOW ON?

A: NO. THIS PARTICULAR ALARM SYSTEM IS NOT SUPERVISED, WHICH MEANS WE DO NOT SUPERVISE OR HAVE SPECIFIC TIMES THAT HE WOULD SET THE ALARM OR TURN THE SYSTEM ON OR OFF. IT'S BASICALLY AT HIS OWN DISCRETION.

Q: UNDER WHAT CIRCUMSTANCES, IF ANY, COULD WESTEC BE NOTIFIED THAT THE SYSTEM HAS BEEN ACTIVATED OR DEACTIVATED?

A: IT WOULD BE AN INTRUSION, WHICH MEANS THAT HE HAS PHYSICALLY SET THE SYSTEM AND -- NOT NECESSARILY HIM, BUT LET'S SAY A BURGLAR BREAKS ONE OF THESE DOOR -- THE DOOR CONTACTS OR GOES IN AN AREA AND GETS -- IS NOT ABLE TO DEACTIVATE THE ALARM SYSTEM IN THE APPROPRIATE TIME PERIOD. AT THAT TIME, WE WOULD RECEIVE A SIGNAL. SO IT'S MORE OF A REACTIVE THAN A PROACTIVE SYSTEM.

Q: AND HAVE YOU SEARCHED THE RECORDS AT WESTEC?

A: YES, I HAVE.

Q: AND WAS WESTEC SIGNALED THAT THE SYSTEM HAD BEEN BROKEN OR THE SECURITY AT MR. SIMPSON'S HOME HAD BEEN BROKEN ON JUNE 12, 19094?

A: THERE WERE NO SIGNALS.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. DARDEN: NOW, DOES WESTEC ALSO PERFORM MAINTENANCE ON SECURITY SYSTEMS?

A: YES, WE DO.

Q: AND IF YOU RECALL, WHEN WAS THE LAST TIME WESTEC PERFORMED ANY MAINTENANCE ON THE DEFENDANT'S SECURITY SYSTEM?

A: I DON'T RECALL.

Q: OKAY. IF YOU RECALL, WERE THERE ANY COMPLAINTS DURING JUNE 1994 THAT THE SYSTEM WAS NOT WORKING PROPERLY?

A: I DON'T RECALL ANY.

MR. DARDEN: THANK YOU. THAT'S ALL.

MS. CHAPMAN: MAY I HAVE ONE MOMENT?

THE COURT: CERTAINLY. ALL RIGHT. DO WE NEED THE BOARD AT THIS POINT? MISS CHAPMAN, DO YOU NEED THE BOARD? MISS SILVA, WHY DON'T YOU TAKE THE WITNESS STAND AGAIN, PLEASE. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEFENSE ATTORNEYS.)

THE COURT: MISS CHAPMAN, DO YOU NEED THE BOARD FOR YOUR CROSS-EXAMINATION?

MS. CHAPMAN: I DON'T THINK SO.

THE COURT: ALL RIGHT. ALL RIGHT. THANK YOU, GENTLEMEN. MISS CHAPMAN.

CROSS-EXAMINATION

BY MS. CHAPMAN:

Q: GOOD MORNING, MISS SILVA.

A: GOOD MORNING, COUNSEL.

MS. CHAPMAN: GOOD MORNING, LADIES AND GENTLEMEN.

THE JURY: GOOD MORNING.

Q: BY MS. CHAPMAN: IT'S YOUR INDICATION, MISS SILVA, THAT THERE WAS NO SIGNAL SENT TO WESTEC WHEN THE ALARM IS SET BY THE RESIDENT; IS THAT CORRECT?

A: THAT'S CORRECT.

Q: AND THERE WOULD BE NO RECORD ANYWHERE THAT YOU'RE AWARE OF OF THE ALARM BEING SET; IS THAT RIGHT?

A: THAT'S CORRECT.

Q: OKAY. NOW, TO SET THE ALARM, YOU WOULD HAVE TO ENTER A CODE; IS THAT RIGHT?

A: YES.

Q: AND YOU WOULD HAVE TO ENTER A CODE AT A PAD AT EITHER THE FRONT DOOR OR AT THE GARAGE; IS THAT RIGHT?

A: YES.

Q: OKAY. NOW, IF THE ALARM WAS SET AND SOMEONE LEFT THROUGH THE KITCHEN DOOR, THE ALARM WOULD GO OFF; IS THAT RIGHT?

A: YES.

Q: WITH RESPECT TO THE ALARMS ON THE FAMILY ROOM DOORS, IF THE ALARM HAD PREVIOUSLY BEEN SET AND PEOPLE WERE TO COME THROUGH ANY OF THOSE FAMILY ROOM DOORS, WOULD THE ALARM AUTOMATICALLY GO OFF AT THAT POINT?

A: IF YOU'RE -- ANY OF THE DOORS WITH THE EXCEPTION OF THE ONE ENTRY, EXIT DOOR, THE ALARM WOULD AUTOMATICALLY GO OFF.

Q: OKAY. SO THE ALARM THAT YOU INDICATED THAT HAD THE 40-SECOND DELAY, IF SOMEONE CAME THROUGH THAT DOOR, IS IT YOUR TESTIMONY THAT THE ALARM WOULD NOT GO OFF. IT WOULD BE A BEEPING SOUND ALLOWING SOMEONE TO GO OFF AND TURN OFF THE ALARM; IS THAT RIGHT?

A: CORRECT.

Q: IF THE ALARM HAD NOT BEEN SET AND SOMEONE WERE TO ENTER THE HOME, NOTHING WOULD HAPPEN AS FAR AS THE ALARM SYSTEM IS CONCERNED THERE AT THE RESIDENCE AND ALSO AT WESTEC CENTER; IS THAT RIGHT?

A: CORRECT. UNLESS SOMEONE AT THE -- AT THE PREMISES EITHER HIT A EMERGENCY BUTTON OR SOMETHING LIKE THAT. BUT IF THE SYSTEM WAS NOT SET AND SOMEBODY WALKED IN THE DOOR, NO, WE WOULD NOT RECEIVE ANY SIGNALS AT ALL.

Q: OKAY.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MS. CHAPMAN: IF HYPOTHETICALLY MR. SIMPSON AND A FRIEND WERE LEAVING ON THE 12TH TO GO GET A HAMBURGER AND THEY WENT OUT THE KITCHEN DOOR AND THE ALARM HAD PREVIOUSLY BEEN SET, THE ALARM WOULD THEN BE ACTIVATED AT THAT POINT; IS THAT CORRECT?

A: IF THE -- IF THE ALARM HAD BEEN SET -- FROM THE INTERIOR OR FROM THE EXTERIOR?

Q: FROM ANYWHERE. IF THE ALARM HAD BEEN SET -- BECAUSE YOU INDICATED IT HAS TO BE AT ONE OF THOSE TWO KEYPADS, CORRECT?

A: RIGHT.

Q: OKAY. SO IF THE ALARM HAD BEEN SET AT EITHER OF THOSE KEYPADS AND MR. SIMPSON AND A FRIEND WENT TO GET A HAMBURGER THROUGH THE KITCHEN DOOR, THE ALARM WOULD THEN GO OFF; ISN'T THAT CORRECT?

A: YES. WITH THAT TYPE OF SYSTEM, WHAT YOU REALLY NEED AND THAT'S WHY HE HAS THE OUTSIDE PANELS IS, YOU DON'T SET THE SYSTEM TO GO OUT THROUGH THE PANELS ON THE INTERIOR OF THE HOUSE BECAUSE IT WILL SET THE SYSTEM OFF. WHAT YOU WOULD DO IS SET IT FROM EITHER OUTSIDE THE FRONT FOYER OR OUTSIDE IN THE GARAGE.

MS. CHAPMAN: RIGHT. THANK YOU. I HAVE NOTHING FURTHER.

THE COURT: MR. DARDEN, ANY REDIRECT?

MR. DARDEN: JUST BRIEFLY.

REDIRECT EXAMINATION

BY MR. DARDEN:

Q: ARE THERE ANY OTHER KEYPADS IN THE HOUSE THAT YOU HAVEN'T MENTIONED ALREADY?

A: THERE ARE KEYPADS UPSTAIRS.

Q: WHERE?

A: THERE IS -- ARE SPECIFIC KEYPADS, ONE INSIDE HIS BEDROOM, ONE OUTSIDE HIS BEDROOM AND THEN HE HAS A SEPARATE SYSTEM FOR HIS KIDS' BEDROOM ALONE WHICH IS APART FROM THE SYSTEM THAT WAS SHOWN ON THE DIAGRAM.

Q: SO HE HAS A SECURITY SYSTEM, SEPARATE SECURITY SYSTEM FOR HIS BEDROOM?

A: YES.

MR. DARDEN: THANK YOU.

THE COURT: MISS CHAPMAN?

MS. CHAPMAN: NOTHING FURTHER.

THE COURT: ALL RIGHT. MISS SILVA, THANK YOU VERY MUCH. YOU ARE EXCUSED AS A WITNESS.

THE WITNESS: THANK YOU.

MS. CLARK: MAY WE APPROACH, YOUR HONOR?

THE COURT: ALL RIGHT.

(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEFENSE ATTORNEYS.)

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

THE COURT: MR. COCHRAN, DO YOU ACCEPT ON BEHALF OF YOUR CLIENT?

MR. COCHRAN: YES, I DO, YOUR HONOR. WHEN YOU SAY --

THE COURT: ALL RIGHT. MR. DARDEN, YOU WANT TO OFFER THE STIPULATION OR MISS CLARK?

MS. CLARK: I'M GOING TO READ IT IN WITH THE COURT'S PERMISSION AND THEN LODGE THE PAPER WITH THE COURT.

THE COURT: ALL RIGHT.

MS. CLARK: IS THAT ACCEPTABLE?

THE COURT: ALL RIGHT. MISS CLARK, YOU HAVE A STIPULATION TO OFFER AT THIS TIME?

MS. CLARK: I DO, YOUR HONOR.

THE COURT: ALL RIGHT. WOULD YOU READ THAT SLOWLY, CLEARLY SO THE JURORS CAN HEAR IT?

MS. CLARK: YES. I'LL READ IT TO THE JURORS.

THE COURT: THANK YOU.

MS. CLARK: IT IS HEREBY STIPULATED THAT THE FOLLOWING CELLULAR TELEPHONE RECORDS WHICH INCLUDE RECORDS THAT HAVE BEEN MARKED AS EXHIBITS IN THIS CASE WERE PREPARED IN THE NORMAL AND REGULAR COURSE OF BUSINESS AT OR AROUND THE TIME OF THE INFORMATION CONTAINED WITHIN THE RECORDS AND THAT THE RECORDS ACCURATELY REFLECT THE INFORMATION CONTAINED THEREIN. THAT IS FOR THE FOLLOWING RECORDS: THE CELLULAR TELEPHONE RECORDS FOR THE DATE OF JUNE THE 12TH, 1994 FOR THE CELLULAR TELEPHONE LOCATED WITHIN THE TOWN AND COUNTRY LIMOUSINE DRIVEN BY ALLAN PARK ON JUNE THE 12TH, 1994; THE CELLULAR TELEPHONE RECORDS FOR THE DATE OF JUNE THE 12TH AND JUNE THE 13TH, 1994 FOR THE CELLULAR TELEPHONE BELONGING TO THE DEFENDANT, ORENTHAL JAMES SIMPSON AND THE CELLULAR TELEPHONE RECORDS FOR THE DATE OF JUNE THE 13TH FOR THE CELLULAR TELEPHONE BELONGING TO DETECTIVE RON PHILLIPS.

THE COURT: ALL RIGHT. MR. COCHRAN, IS THAT STIPULATION ACCEPTABLE TO THE DEFENSE?

MR. COCHRAN: YES. SO STIPULATED, YOUR HONOR.

THE COURT: ALL RIGHT. THEN THE STIPULATION IS ACCEPTED BY THE COURT. LADIES AND GENTLEMEN, A STIPULATION IS AN AGREEMENT BETWEEN THE ATTORNEYS AS TO CERTAIN FACTS, AND YOU ARE TO ACCEPT THOSE FACTS AS TRUE FOR THE PURPOSES OF THIS TRIAL. ALL RIGHT. COUNSEL, AT THIS POINT, I'M GOING TO TAKE A BRIEF RECESS, AND I WOULD LIKE TO CONFER WITH COUNSEL IN CHAMBERS WITH THE COURT REPORTER, PLEASE. ALL RIGHT. LADIES AND GENTLEMEN, WE'RE GOING TO TAKE A RECESS AT THIS TIME. PLEASE REMEMBER MY ADMONITIONS TO YOU; DON'T DISCUSS THE CASE AMONGST YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE, DO NOT CONDUCT ANY DELIBERATIONS AND DO NOT ALLOW ANYBODY TO COMMUNICATE WITH YOU REGARDING THE CASE. AND WE'LL SEE YOU BACK SHORTLY. ALL RIGHT.

(AT 11:00 A.M., THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

(PAGES 21005 THROUGH 21018, VOLUME 117A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

LOS ANGELES, CALIFORNIA; THURSDAY, MARCH 30, 1995 1:40 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.)

(PAGES 21005 THROUGH 21018, VOLUME 117A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:) THE COURT: ALL RIGHT. GOOD AFTERNOON, COUNSEL. BACK ON THE RECORD IN THE CONTINUING MOTION FROM YESTERDAY. WE HAVE MR. SIMPSON PRESENT WITH HIS COUNSEL, MR. BLASIER, MR. NEUFELD, MR. THOMPSON AND MR. SCHECK, PEOPLE REPRESENTED BY MR. CLARKE, MR. HARMON AND MISS KAHN. ALL RIGHT. MR. SCHECK, YOU HAD WOUND UP YOUR COMMENTS?

MR. SCHECK: YES.

THE COURT: THANK YOU. MR. NEUFELD OR WAS IT PROFESSOR THOMPSON?

MR. SCHECK: DO YOU WANT THE PROSECUTION TO RESPOND TO THIS OR DO YOU WANT US TO GO THROUGH EVERYTHING?

THE COURT: NO. I WOULD LIKE TO HEAR THE WHOLE MOTION.

MR. SCHECK: OKAY.

MR. NEUFELD: ON THE MOTION -- ON THE MOTION ON DEFENDANT'S OBJECTIONS, YOU HEARD THE WHOLE ARGUMENT.

THE COURT: OKAY.

MR. NEUFELD: THOSE WERE DIFFERENT APPLICATIONS AND YOU SAID YOU WANTED TO DO ONE FIRST.

THE COURT: ALL RIGHT.

MR. THOMPSON: THERE'S A SEPARATE MATTER OF THE PROSECUTION'S MOTION IN LIMINE TO RESTRICT OUR INQUIRY ON GENERAL ACCEPTANCE.

THE COURT: ALL RIGHT. THEN I'LL HEAR FROM THE PROSECUTION ON THIS FIRST MATTER. MR. CLARKE.

MR. CLARKE: THANK YOU, YOUR HONOR. WITH REGARD TO THIS MOTION BY THE DEFENSE, I THINK THERE'S A NUMBER OF FACTORS THE COURT HAS TO TAKE INTO ACCOUNT. INITIALLY, TO A LARGE EXTENT, I BELIEVE MR. SCHECK MERGED TWO OF THE MOTIONS THAT ARE BEFORE THE COURT TODAY. HE HAD A GREAT DEAL OF DISCUSSION NOT ONLY ABOUT WHETHER OR NOT THE DEFENDANT'S RIGHT TO A FRYE HEARING SHOULD BASICALLY BE RESURRECTED AT THIS POINT IN TIME, AND HE ALSO INTERTWINED WITH THAT DISCUSSION NUMEROUS COMMENTS THAT INVOLVE CROSS-EXAMINATION OF THE PEOPLE'S WITNESSES; FOR INSTANCE, ABOUT DNA EVIDENCE AS WELL AS PROPER METHODS AND PROCEDURES, TO ACTUALLY WEAVE THAT CROSS-EXAMINATION WITH THE OPINIONS OF OTHER EXPERTS AND SO FORTH THAT MR. HARMON WILL ADDRESS IN SUBSEQUENT COMMENTS. I'M GOING TO RESTRICT MYSELF TO THE ACTUAL MOTION OR ACTUAL NOTICE OF OBJECTIONS AS THE WAY IT WAS CHARACTERIZED AND WHAT THIS COURT SHOULD DO IN OUR VIEW WITH RESPECT TO THAT PARTICULAR MOTION. THAT IS A MOTION. IT'S NOT A NOTICE OF OBJECTIONS. IT CLEARLY IS A MOTION BY THIS DEFENDANT TO HAVE THIS COURT CONVENE AN ADMISSIBILITY HEARING PURSUANT TO KELLY AND FRYE. THIS DEFENDANT SEEKS RELIEF FROM HIS JANUARY 4TH OF THIS YEAR WAIVER OF HIS RIGHT TO CHALLENGE DNA EVIDENCE AS SOUGHT TO BE INTRODUCED BY THE PEOPLE IN THIS PARTICULAR ACTION. WHILE THIS DEFENDANT'S ACTS YESTERDAY AND TODAY BY WAY OF THIS MOTION ARE UNDERSTANDABLE FROM THE FACTS OF THIS CASE AND THE NATURE OF THE DNA RESULTS THAT HAVE BEEN OBTAINED, THAT DOES NOT IN ANY MANNER CHANGE THE FACT THAT THIS EVIDENCE IS ADMISSIBLE; AND THIS EVIDENCE IS ADMISSIBLE BECAUSE OF THE VERY ACTS UNDERTAKEN BY THIS DEFENDANT PRIOR TO TODAY. AND I WANT TO GO THROUGH THOSE FACTS BECAUSE I THINK THEY ARE AT THE HEART OF THIS PARTICULAR MOTION, AND I'LL DO THAT IN JUST A MOMENT. BUT INITIALLY, I THINK IT'S IMPORTANT FOR THE COURT TO NOTE THE VERY --

THE COURT: I'M SORRY, MR. CLARKE. LET ME ASK -- FORGIVE ME FOR INTERRUPTING YOU. BUT THERE IS ONE OTHER STAFFING ISSUE. DOES ANYBODY HAVE NEED OF OUR EVIDENCE PRESENTATION SYSTEM FOR THE AFTERNOON? IF NOT, I'M GOING TO EXCUSE MISS FITZPATRICK FOR THE AFTERNOON.

MR. CLARKE: THERE IS SOME POSSIBILITY IN THE COURSE OF MY COMMENTS, AND THEY'RE GOING TO BE REASONABLY BRIEF. SO IF IT WOULD BE ACCEPTABLE --

THE COURT: WHAT TYPE OF EXHIBITS ARE YOU CONTEMPLATING USING?

MR. CLARKE: POSSIBLY A VIDEOTAPE.

THE COURT: ALL RIGHT. VIDEOTAPE I CAN DO MYSELF BECAUSE I'VE GOT MY OWN SYSTEM. ALL RIGHT. MISS FITZPATRICK, YOU ARE EXCUSED.

MR. CLARKE: VERY GOOD. AS FAR AS THE BROAD NATURE OF WHAT THIS DEFENDANT SEEKS BY THIS NOTICE OF OBJECTIONS, I THINK THE COURT CAN TAKE IN SUMMARY FASHION THAT THEY ADDRESS APPROXIMATELY SIX BROAD AREAS.

THOSE SIX AREAS INCLUDE A REQUEST THAT THIS COURT SITTING ALONE, WITHOUT A JURY, IN FACT CONDUCT A FRYE ADMISSIBILITY HEARING ABOUT WHAT THE DEFENSE CHARACTERIZES AS NEW RESULTS. THOSE RESULTS, AS THE DEFENSE NOTES, WERE, QUOTE, NEW RESULTS IF IN FACT THEY WERE RECEIVED BY THEM FOLLOWING THE JANUARY 4TH WAIVER BY THIS PARTICULAR DEFENDANT OF HIS RIGHT TO CHALLENGE ADMISSIBILITY. THE SECOND BROAD AREA IS A REQUEST BY THE DEFENDANT TO CONVENE IN THE PRESENCE OF THE JURY AGAIN, WHICH IS NOT A UNIQUE PROPOSAL BY THIS DEFENDANT, A FRYE HEARING APPLYING TO BOTH THE OLD RESULTS -- AND BY OLD, I MEAN THOSE RESULTS RELEASED TO BOTH PARTIES PRIOR TO JANUARY 4TH OF 1995 -- AS WELL AS THE, QUOTE, POST-NIGHT -- JANUARY 4TH RESULTS THAT ARE, FOR LACK OF A BETTER TERM, THE NEWER RESULTS. THE DEFENSE HAS ALSO ASKED THAT THIS COURT CONVENE A KELLY INQUIRY PURSUANT TO PRONG 3 OF PEOPLE VERSUS KELLY DEALING WITH WHETHER OR NOT CORRECT SCIENTIFIC PROCEDURES WERE USED AND TO IN FACT CONDUCT THAT HEARING OUTSIDE THE PRESENCE OF THE JURY. THE DEFENSE HAS ALSO SUGGESTED THAT THIS COURT MUST RULE ON HOW POPULATION FREQUENCY DATA MUST BE BOTH CALCULATED BY SCIENTISTS AS WELL AS PRESENTED TO A JURY; THE FACT THAT, AS THE DEFENSE ALLEGES, ERROR RATES MUST BE CHARACTERIZED IN A PARTICULAR FASHION AND IN FACT ALLEGEDLY INCORPORATED IN THE POPULATION FREQUENCIES AS EXPRESSED TO THE JURY VIA THE VARIOUS DNA EXPERTS THAT WILL TESTIFY AT THIS TRIAL; AND FINALLY, AND AGAIN, A BROAD AREA, LIMITATIONS ON HOW EXPERTS CAN CONVEY THE MEANING OF MIXED SAMPLES AND IN FACT HOW IT CAN BE CHARACTERIZED TO A JURY THAT MORE THAN ONE DONOR MAY HAVE BEEN OR WAS INVOLVED IN A PARTICULAR DNA SAMPLE AND HOW THAT FACT CAN BE CHARACTERIZED TO THE JURY MUST BE LITIGATED BEFORE THIS COURT SITTING ALONE. AS I MENTIONED A FEW MOMENTS AGO, AT THE HEART OF THIS MOTION IS WHAT OCCURRED PRIOR TO TODAY. AND THE COURT I THINK HAS TO GO BACK TO OCTOBER 4TH OF 1994 IN WHICH THE DEFENSE FILED A VERY EXTENSIVE MOTION TO EXCLUDE DNA EVIDENCE. THAT MOTION ATTACKED, FIRST OF ALL, THE PARTICULAR TECHNOLOGIES INVOLVED IN THIS CASE. THOSE PARTICULAR TECHNOLOGIES IN BROAD STROKES THE DEFENSE CHARACTERIZED AS NOT MEETING THE GENERAL ACCEPTANCE STANDARD OF PEOPLE VERSUS KELLY AND FRYE VERSUS THE UNITED STATES, AND IN FACT, IT WAS ALLEGED BY THE DEFENSE THAT NOT ONLY DID DNA TYPING NOT MEET THE GENERAL ACCEPTANCE STANDARD, BUT IN FACT, THE TWO PRIOR APPROACHES UTILIZED IN THIS CASE SUFFERED FROM AN ABSENCE OF GENERAL SCIENTIFIC ACCEPTANCE AT EACH OF THE MAJOR STEPS OF THOSE PARTICULAR PROCESSES. AND THAT INCLUDES BOTH THE RESTRICTION FRAGMENT LENGTH OR RFLP TESTING APPROACH AS WELL AS THE PCR TESTING APPROACH AS UTILIZED IN THIS CASE. IN ADDITION TO THAT, THE DEFENSE IN BROAD STROKES CHARACTERIZED WHAT IT BELIEVED TO BE A LACK OF GENERAL SCIENTIFIC ACCEPTANCE OF THE MANNER IN WHICH POPULATION FREQUENCY DATAS ARE BOTH CALCULATED BY TESTING LABORATORIES AS WELL AS EXPRESSED TO JURIES IN CRIMINAL CASES. THE SECOND BROAD AREA THAT THAT MOTION ATTACKED WAS THE ALLEGED FAILURE OF LABORATORIES IN THIS CASE TO USE PROPER TESTING PROCEDURES OR WHAT CAN I THINK BE SAFELY CHARACTERIZED AS THE THIRD PRONG OF OUR KELLY INQUIRY IN THE STATE OF CALIFORNIA. THE THIRD MAJOR AREA WAS AN ALLEGATION THAT UNDER EVIDENCE CODE SECTION 352, THAT THIS EVIDENCE, EVEN IF OTHERWISE ADMISSIBLE PURSUANT TO FRYE AND KELLY, NONETHELESS SHOULD BE EXCLUDED BY THIS COURT FROM CONSIDERATION BY THE JURY BECAUSE OF THE EXCESS OF ITS PREJUDICIAL AFFECT WHEN COMPARED TO ITS RELEVANT AND PROBATIVE VALUE BEFORE THE JURY. AND THEN FINALLY, THE DEFENSE ALLEGED UNDER PEOPLE VERSUS GRIFFEN THAT DUE TO SUPPOSED FAILURE OF EACH OF THE TESTING LABORATORIES TO UTILIZE PROPER COLLECTION TECHNIQUES IN TERMS OF EVIDENCE COLLECTION HANDLING AND PROCESSING, THAT THIS COURT SHOULD THEREFORE PRECLUDE ADMISSION OF DNA TESTING RESULTS AS WELL.

THE NEXT SIGNIFICANT ACT THAT OCCURRED WITH ONE EXCEPTION THAT I'LL ADDRESS A LITTLE BIT LATER WAS ON DECEMBER 13TH OF 1994 IN WHICH, AS THIS COURT IS FULLY AWARE, THE DEFENSE PROPOSED TO THIS COURT A NOVEL PROCEEDING IN WHICH THE COURT WOULD ALLOW THIS DNA EVIDENCE TO BE HEARD BY THE JURY, BUT THE COURT WOULD CONDUCT A CONCURRENT OR SIMULTANEOUS FRYE HEARING AT WHICH THE DEFENSE WOULD, WHILE RUNNING THE RISK THAT A JURY MIGHT HEAR EVIDENCE OF DNA TYPING RESULTS AND MATCHES AND FURTHER, THAT THE DEFENSE WAS WILLING TO TAKE THAT RISK AND THEN HAVE THE COURT INSTRUCT THE JURY, IF NECESSARY, THAT THEY WERE TO DISREGARD THE EVIDENCE OF DNA TYPING RESULTS THAT THEY HEARD. THIS COURT RAPIDLY DENIED THAT AND IN FACT IN DECEMBER, SET THIS CASE FOR A FRYE HEARING ON JANUARY 5TH OF THIS YEAR. IMMEDIATELY PRIOR TO THAT DAY AND IN FACT IN A MOTION DATED JANUARY 3RD, 1995, THE DEFENSE FILED ITS NOTICE OF WITHDRAWAL OF ITS MOTION TO EXCLUDE DNA EVIDENCE IN THIS CASE. IN THAT MOTION, THE DEFENSE SPECIFICALLY STATED ITS INTENT TO GIVE UP THAT RIGHT TO AN ADMISSIBILITY HEARING AND TO IN FACT CHALLENGE THE WEIGHT OF THIS EVIDENCE BEFORE THE JURY, TO CHALLENGE THE WEIGHT OF THAT EVIDENCE BEFORE THE JURY AS TO THE RELIABILITY OF THE TESTING PROCEDURES THAT WERE UTILIZED, TO CHALLENGE THE WEIGHT OF THAT EVIDENCE AS FAR AS STATISTICAL FREQUENCIES OR POPULATION FREQUENCY DATA AND WHAT WEIGHT THE JURY SHOULD GIVE TO THAT EVIDENCE, AND IN FACT A CHALLENGE BEFORE THE JURY THE SPECIFIC TECHNIQUES THAT WERE USED IN THIS PARTICULAR CASE. THE METHODS THAT THE DEFENSE SUGGESTED IN THAT MOTION BY WHICH THEY WOULD CHALLENGE THAT EVIDENCE, AND AGAIN IN FRONT OF THE JURY, WERE CROSS-EXAMINATION, WHICH SPECIFICALLY STATED TO BE ONE OF THE GREATEST AREAS THAT THE DEFENSE INTENDED TO UTILIZED TO CHALLENGE THE WEIGHT AGAIN THAT THIS JURY SHOULD GIVE THAT EVIDENCE, AS WELL AS TO PRESENT DEFENSE EVIDENCE AS TO WHY THE PARTICULAR RESULTS IN THIS CASE SHOULD NOT BE BELIEVED BY THE JURY. FINALLY, THE DEFENSE STATED THAT THEY WOULD UTILIZE ANY APPROPRIATE MEANS IN FRONT OF THE JURY TO AGAIN CHALLENGE THE WEIGHT OF THE PARTICULAR EVIDENCE PRESENTED BY THE PROSECUTION'S DNA EXPERTS. IN THE COURSE OF THE HEARING ON THAT WITHDRAWAL, IN THE COURSE OF THE HEARING ON THAT WAIVER, THE COURT AND COUNSEL WERE BOTH PRESENTED WITH A SERIES OF PROPOSED QUESTIONS TO BE ASKED OF THE DEFENDANT TO INSURE THE DEFENDANT'S REALIZATION OF WHAT HE WAS GIVING UP, WHAT RIGHT HE WAS WAIVING AS A RESULT OF WITHDRAWING THAT INITIAL MOTION TO EXCLUDE. AND IN THE COURSE OF THAT HEARING, AS THE COURT I'M SURE IS FAMILIAR, NOT ONLY DID COUNSEL FOR MR. SIMPSON WAIVE THE RIGHT TO ANY HEARING ON THAT MOTION TO EXCLUDE EVIDENCE AND WAIVED THE MOTION ITSELF, BUT THE DEFENDANT PERSONALLY WAIVED THAT RIGHT AS WELL. AND FORTUNATELY, A VIDEOTAPE CAPTURED THAT ENTIRE EIGHT MINUTES IN WHICH THE COURT ASKED QUESTIONS OF COUNSEL, ASKED QUESTIONS OF THE DEFENDANT HIMSELF AND IN FACT INSURED THAT WHAT THE DEFENDANT WAS GIVING UP WAS CLEAR TO THE DEFENDANT, HIS COUNSEL AND IN FACT ALL THE PARTIES TO THIS ACTION. THE SIGNIFICANCE OF THAT ACT WAS TO ALLOW THE ADMISSION OF DNA EVIDENCE IN TOTAL BECAUSE THE DEFENDANT GAVE UP THAT RIGHT TO CHALLENGE UNDER FRYE AND UNDER KELLY AND UNDER ANY OF THE THREE PRONGS OF KELLY ADMISSIBILITY OF THE EVIDENCE. AND IN FACT, I THINK THAT'S THE KEY ACT ITSELF. THE DEFENDANT BY THIS MOTION OR BY THIS NOTICE OF OBJECTIONS FILED LAST WEEK ATTEMPTS TO DISAVOW HIS OWN ACTS IN GIVING UP THAT RIGHT ON JANUARY 4TH OF 1995. AND IN FACT, YESTERDAY, THE DEFENSE HAS SOUGHT TO CONVINCE THIS COURT THAT ITS INITIAL PROPOSAL OR PROPOSAL IN DECEMBER OF LAST YEAR TO CONVENE THIS HEARING IN FRONT OF THE JURY SHOULD AGAIN BE AUTHORIZED BY THIS COURT. AND I THINK THE COURT SHOULD BE AWARE AND CERTAINLY IS AWARE THAT IT'S SIMPLY AN ATTEMPT TO RAISE WHAT WAS GIVEN UP BEFORE.

NOW, BRIEFLY, WHAT DOES THE CURRENT NOTICE OF OBJECTIONS DO? IT REALLY ADDRESSES FOUR MAJOR AREAS, ONE OF WHICH I'VE ALREADY SPOKEN ABOUT. IT'S AN ATTEMPT TO RESURRECT THE SAME CLAIMS THAT WERE MADE IN THE OCTOBER 4TH, 1994 MOTION TO EXCLUDE. THE DEFENDANT CLAIMS -- AND THIS IS THE SECOND MAJOR AREA OF THE NEW MOTION -- THAT HE DIDN'T EVEN KNOW THE PROCEDURES THAT WERE USED AS FAR AS TESTING IN THIS CASE UNTIL HE WAS PROVIDED RAW DATA AS RECENTLY AS JANUARY OF THIS YEAR BASED ON TESTING, FOR INSTANCE, CONDUCTED BY THE CALIFORNIA DEPARTMENT OF JUSTICE. HE RENEWS HIS ARGUMENT UNDER EVIDENCE CODE SECTION 403 THAT IN FACT THIS IS REALLY NOT A HEARING UNDER PEOPLE VERSUS KELLY OR FRYE OR VERSUS THE UNITED STATES AND THAT IN FACT IT'S A FOUNDATIONAL OR PRELIMINARY FACT HEARING UNDER OUR EVIDENCE CODE SCHEME IN CALIFORNIA. AND LASTLY, THE DEFENDANT CONTAINS THAT THE LANDSCAPE IS DIFFERENT; THAT BECAUSE MORE TESTING HAS OCCURRED, THE SITUATION IS DIFFERENT AND THE COURT SHOULD TAKE A DIFFERENT COURSE FROM THAT ADOPTED BY THIS COURT IN DECEMBER OF 1994 AND AS SET BY THIS COURT AS A RESULT OF THE DEFENDANT'S WAIVER IN JANUARY.

WELL, ALL OF THOSE CLAIMS ARE WITHOUT MERIT. THE FIRST I'VE ALREADY DISCUSSED. THE SAME ARGUMENTS IN THE MOTION BEFORE THIS COURT FILED LAST WEEK ARE THE SAME ARGUMENTS THAT WERE BEFORE THIS COURT IN THE MOTION TO EXCLUDE IN OCTOBER THAT WAS SPECIFICALLY WITHDRAWN BY THIS DEFENDANT ON JANUARY 4TH OF THIS YEAR. THE CLAIM THAT THE DEFENDANT HAD NO OPPORTUNITY TO KNOW THE PROCEDURES USED IN TESTING IN THIS CASE -- AND I'M REFERRING TO DNA TESTING -- AT THE TIME OF HIS JANUARY 4TH WAIVER IS TOTALLY BELIED BY THE FACTS OF THIS CASE. THE PROTOCOLS, THE PROCEDURES MANUALS UTILIZED BY NOT ONLY THE LOS ANGELES POLICE DEPARTMENT, BUT ALSO CELLMARK DIAGNOSTICS AND THE DEPARTMENT OF JUSTICE WERE PROVIDED MONTHS AGO TO THIS DEFENDANT AND IN FACT IN THE APPROXIMATELY LATE SUMMER, EARLY FALL OF 1994. AS OF THE TIME OF THAT JANUARY 4TH WAIVER, THE DEFENDANT HAD BEEN PROVIDED EXTENSIVE RAW DATA BY BOTH THE LOS ANGELES POLICE DEPARTMENT AND CELLMARK DIAGNOSTICS SETTING FORTH THE ACTUAL TESTING PROCEDURES AND DETAILED NOTES ABOUT WHAT OCCURRED IN THIS PARTICULAR CASE. AS TO THE DEPARTMENT OF JUSTICE, I THINK THE CIRCUMSTANCES ARE EVEN MORE COMPELLING. DR. BLAKE, AS THE COURT HAS BEEN MADE AWARE ON MANY OCCASIONS, CAREFULLY MONITORS WHAT GOES ON AT THE DEPARTMENT OF JUSTICE IN TERMS OF TESTING IN THIS CASE, AND TO SOMEHOW AVOW THAT THE DEFENSE WAS NOT ABLE TO LEARN ABOUT TESTING PROCEDURES AT DOJ PRIOR TO JANUARY 4TH I THINK IS EXTREMELY SUSPECT. PARTICULARLY PERTINENT TO THE DEPARTMENT OF JUSTICE IS THE FACT THAT ON THAT DATE OF JANUARY 4TH, WHEN THE DEFENDANT WAIVED HIS RIGHT TO AN ADMISSIBILITY HEARING, IT WAS CLEAR THAT THE REPORT AND RAW DATA FROM DOJ WERE EMINENT AND IN FACT WERE EXPECTED BY ALL PARTIES TO EITHER ARRIVE ON THAT DAY OR THE NEXT DAY. AND IN FACT, THIS DEFENDANT DIDN'T EVEN ASK THIS COURT FOR ONE MORE DAY TO IN FACT RECEIVE THAT MATERIAL BEFORE IT MADE THE MAJOR STEP OF WITHDRAWING THE MOTION BEFORE THIS COURT FILED IN OCTOBER. I'M NOT GOING TO REITERATE THE ARGUMENTS ABOUT EVIDENCE CODE SECTION 403 BECAUSE I'M SURE THE COURT IS AWARE THAT WAS BRIEFED AND ARGUED TO THE COURT OSTENSIBLY BACK IN DECEMBER WHEN THE DEFENDANT'S PROPOSAL FOR A MODIFIED TYPE HEARING WAS BEFORE THIS COURT. SUFFICE IT TO SAY, 403 IS INAPPLICABLE IN THE STATE OF CALIFORNIA AS TO DNA EVIDENCE BECAUSE KELLY, AS WE KNOW FROM THE CASES CITED IN OUR RESPONDING PAPERS, IS THE EXCLUSIVE MEANS IN CALIFORNIA OF DETERMINING THE ADMISSIBILITY OF NEW OR NOVEL SCIENTIFIC EVIDENCE AS STATED BY OUR SUPREME COURT IN BOTH IN RE HARRIS AS WELL AS THE MORE RECENT PEOPLE VERSUS LEAHY. TO SOMEHOW ATTEMPT TO PARLAY A QUESTION OF FACT AND LAW, A MIXED QUESTION OF FACT AND LAW TO BE MADE BY THE COURT INTO A JURY DETERMINATION AS WAS NOTED BACK IN DECEMBER I THINK IS CLEARLY CONTRADICTORY AND FRANKLY IT MAKES NO SENSE WHATSOEVER. THE LAST ARGUMENT RAISED BY THIS DEFENDANT IN THE COURSE OF THIS MOTION I THINK IS THE MOST MYSTERIOUS ARGUMENT. AND IN FACT, IN THIS MOTION, THE DEFENSE CLAIMS THAT TESTING FOR WHICH RESULTS WERE PROVIDED AFTER JANUARY 4TH, 1994 AND IN FACT TESTING THAT OCCURRED AFTER JANUARY 4TH, 1994 INVOLVES NOVEL PROCEDURES. I THINK THAT'S EXACTLY THE WAY THE DEFENSE CHARACTERIZED IT. THE TRUTH IS, THE SAME TESTING PROCEDURES HAD BEEN USED AFTER JANUARY 4TH AS WERE THE TESTING PROCEDURES UTILIZED BY THE LABORATORIES IN THIS CASE PRIOR TO JANUARY 4TH, AND THE COURT SPECIFICALLY AUTHORIZED TESTING TO CONTINUE. THIS COURT REFUSED THE DEFENSE DEMAND FOR A CUT-OFF DATE. SO THE FACT THAT FURTHER TESTING OCCURRED WHICH CERTAINLY COMPLIES WITH CALIFORNIA LAW, THE FACT THAT THAT TESTING OCCURRED AND PRODUCED RESULTS WAS NO SURPRISE TO ANYONE BECAUSE THIS COURT SPECIFICALLY AUTHORIZED THAT PARTICULAR PROCEDURE. IN THAT VEIN AND PERHAPS WHAT MAKES THIS ARGUMENT SO CURIOUS I THINK IS THE FACT THAT WHEN THIS COURT HAD BEEN PRESENTED WITH THE ORIGINAL MOTION TO EXCLUDE EVIDENCE, THIS COURT RECEIVED A LETTER FROM THE DEFENSE DATED OCTOBER 18TH AND I BELIEVE SIGNED BY MR. NEUFELD; AND IN THAT LETTER, THE DEFENSE SPECIFICALLY STATED SINCE THE KELLY ISSUES ARE LIMITED TO METHODS AND PROCEDURES, DISCLOSURE OF THE ACTUAL TEST RESULTS IS NOT REQUIRED. THE CLAIM TODAY IN THIS CURRENT MOTION CONTRADICTS THE EARLIER CLAIM ABOUT RESULTS AND IT CONTRADICTS WHAT EXACTLY THE DEFENSE CLAIM IS ABOUT WHAT PRONG 3 IS. AS THIS COURT IS WELL AWARE FROM EXTENSIVE PLEADING FILED IN THE FALL OF LAST YEAR BY THE PEOPLE, RESULTS AREN'T RELEVANT TO THE DETERMINATION OF THE USE OF CORRECT SCIENTIFIC PROCEDURES UNDER PRONG 3. SO I THINK FOR THE DEFENSE TO BE CLAIMING ANYTHING WHICH CONTRADICTS THAT EARLIER LETTER OF OCTOBER RENDERS THE CLAIM TODAY PARTICULARLY WITHOUT MERIT. THIS DEFENDANT KNOWINGLY WAIVED HIS RIGHT TO CHALLENGE EVIDENCE IN TERMS OF DNA RESULTS IN THEIR ADMISSIBILITY ON JANUARY 4TH OF THIS YEAR. THAT DECISION WAS A TACTICAL DECISION. IT WAS MADE AFTER CONSULTATION WITH HIS ATTORNEYS, AND IN FACT, IT WAS PERSONALLY WAIVED BY THIS DEFENDANT IN COURT. THIS DEFENDANT HAS NEVER BEEN FORCED TO CHOOSE AMONGST RIGHTS. HE HAS CONTROLLED THE TIMING OF THIS CASE IN TERMS OF THE BEGINNING OF TRIAL AND THE CONTINUATION OF TRIAL WITHIN THE MEANING OF THE SIXTH AMENDMENT AND THE RIGHT TO SPEEDY TRIAL. THIS IS AN 11TH HOUR ATTEMPT TO STALL TRIAL AND I DON'T THINK IT CAN BE CHARACTERIZED IN ANY OTHER FASHION. AND I THINK WHEN THE COURT INCORPORATES, AND I'M CONFIDENT WHEN THE COURT INCORPORATES THAT THIS LATE ATTEMPT IS DESIGNED TO STALL THIS TRIAL, THAT WHEN THE COURT WEIGHS THAT FACT AGAINST THE PEOPLE'S RIGHT TO DUE PROCESS UNDER THE CALIFORNIA CONSTITUTION, THAT THE COURT SHOULD DENY IN TOTAL THIS PARTICULAR NOTICE OF OBJECTIONS AND ANY ATTEMPT BY THIS DEFENDANT TO FORCE THIS COURT TO CONVENE THE ADMISSIBILITY HEARING THAT MR. SIMPSON PERSONALLY GAVE UP ON JANUARY 4TH OF THIS YEAR. THANK YOU, YOUR HONOR.

THE COURT: THANK YOU, MR. CLARKE. MR. SCHECK.

MR. SCHECK: THIS MOTION IS NOT AN EFFORT TO STALL THE TRIAL AND I THINK THAT MR. CLARKE HAS MISUNDERSTOOD WHAT WE'RE SUGGESTING TO THE COURT. LET ME BE SPECIFIC. AS TO THE CHART THAT WE INTRODUCED YESTERDAY IN THE MOTION THAT WE SUBMITTED -- AND I'M PUTTING ASIDE NOW THE FIRST PRONG OF KELLY-FRYE. WE'RE TALKING ABOUT THIRD PRONG OBJECTIONS, THIRD PRONG AS INTERPRETED BY THE DECISIONS IN BARNEY AND WALLACE AND PIZARRO, WHICH IS NOT THE INTERPRETATION THAT MR. CLARK AND MR. HARMON HAVE URGED UPON THIS COURT AND HAVE URGED UPON THOSE COURTS IN OTHER LITIGATION, WHERE THEY SAY THE ACTUAL RESULTS AND THE ACTUAL WAY THE TESTS ARE PERFORMED HAVE NO RELEVANCE TO PRONG 3. THAT ARGUMENT WAS REJECTED IN BARNEY, IT WAS REJECTED IN PIZARRO, IT WAS REJECTED IN WALLACE, AND THE CALIFORNIA SUPREME COURT IN THE LEAHY DECISION SPECIFICALLY SAID IN RESPONSE TO MR. HARMON'S BRIEF THAT THEY'RE NOT GOING TO ENTERTAIN THAT ARGUMENT EITHER. SO I THINK THAT OUR INTERPRETATION THAT PRONG 3 HAS TO DO WITH THE WAY THE ACTUAL TESTS ARE PERFORMED, WHETHER, FOR EXAMPLE, CONTROLS FAILED SUCH THAT THE TEST RESULTS ARE NOT RELIABLE ENOUGH AND SHOULD BE STRUCK FROM EVIDENCE, IS A QUESTION THAT I THINK THIS COURT HAS TO CONSIDER AS THE TEST RESULTS COME IN. LET'S BE VERY, VERY CLEAR AS I TRIED TO BE YESTERDAY. AND THAT IS -- IN TERMS OF JUST LAYING IT OUT. AND THAT IS, WE'RE ONLY ASKING THIS COURT -- IT GETS ME NERVOUS WHEN YOU SMILE LIKE THAT. THE FIRST TWO ISSUES HAVING TO DO WITH STATISTICS AND THE WAY THEY'RE PRESENTED TO THE JURY AND THE NEED TO PRESENT DNA IN THE FORM OF STATISTICS AND THE INSTRUCTIONS THAT WE'RE ASKING THE COURT TO CONSIDER ON THAT SCORE, MR. CLARKE NEVER RESPONDS TO IT. THEY SEEM TO BE INSISTING BY HIS SILENCE THAT THEY'RE ENTITLED TO INTRODUCE THIS EVIDENCE WITHOUT STATISTICS. HE DOESN'T EVEN RESPOND TO THE POINT. I THINK THAT'S JUST PLAINLY WRONG. THAT'S THE ONLY ISSUE WE WANT YOU TO DECIDE RIGHT AWAY. THE ONLY OTHER ISSUES AS TO WHETHER OR NOT THE TESTS WERE PERFORMED CORRECTLY, WHETHER THEY'RE RELIABLE ENOUGH TO BE CONSIDERED EVENTUALLY IN THE END BY THE JURY, WHETHER PRONG 3 HAS BEEN VIOLATED, WHETHER SPECIFIC THINGS MENTIONED IN BARNEY AND WALLACE HAVE BEEN VIOLATED, WHETHER THE COLLINS AND CELLA ARGUMENTS APPLY, AND MOST IMPORTANTLY, WHETHER 352 APPLIES TO THE WAY THE STATISTICS ARE PRESENTED AND THE WAY THE EVIDENCE ARE PRESENTED, WE THINK ALL THOSE ARGUMENTS PLAINLY SHOULD BE HEARD BY THE COURT AFTER YOU HEAR THE TESTIMONY FROM THE PROSECUTION WITNESSES THAT ARE CROSS-EXAMINED AND YOU HEAR TESTIMONY FROM DEFENSE WITNESSES. THEN AT THE END, YOU CAN MAKE A DETERMINATION. I THINK THAT'S THE ONLY SENSIBLE WAY YOU COULD MAKE A DETERMINATION AS TO WHETHER OR NOT SOME OR ALL OR ANY OF THESE DNA TEST RESULTS SHOULD BE HEARD BY THE JURY. THAT'S WHAT WE'RE PROPOSING WITH RESPECT TO ALL THESE NON-PRONG 1 OBJECTIONS. SO IT'S NO ATTEMPT IN THAT REGARD TO DELAY THE TRIAL AT ALL. I THINK THAT IN MR. CLARKE'S RECITATION OF THE HISTORY OF HOW THESE HEARINGS WERE SCHEDULED AND NOT SCHEDULED, I THINK HE'S LEAVING OUT A LOT.

AS I'M SURE THE COURT RECALLS, THESE DNA HEARINGS WERE SCHEDULED BEFORE JURY SELECTION. IN THE MIDDLE OF JURY SELECTION, PROPOSALS WERE MADE BY THE COURT -- MADE BY COUNSEL TO THE COURT, AND THE COURT INDICATED SOME DESIRE TO PURSUE IT, THAT WE HAVE LIMITED NUMBER OF WITNESSES. WE ASKED FOR, ON BOTH SIDES, THAT YOU ENTERTAIN TRANSCRIPTS FROM OTHER WITNESSES FROM PRIOR PROCEEDINGS, TAKE JUDICIAL NOTICE OF THOSE, THAT WE SEGREGATE THE ISSUES, THAT WE DO IT IN AN ORGANIZED, QUICK WAY, THAT WE TRY TO TAKE CARE OF THIS IN TWO OR THREE WEEKS. THE PROSECUTION RESISTED ALL OF THAT AND INSISTED UPON CALLING 22 WITNESSES. SO IF ANYBODY WANTED A DELAY AT THAT POINT, IT WAS THEM. WE AT ONE POINT -- AND THIS IS WHAT'S SO FASCINATING. THE PROSECUTION ACTUALLY HAD SUGGESTED, WELL, WE CAN HOLD A KELLY HEARING ONLY ON PRONG 1 ISSUES AND THEN THE PRONG 3 ISSUES CAN BE ENTERTAINED AT TRIAL. SO AT ONE POINT, THEY EVEN MADE THAT PROPOSAL AS WE WERE GOING BACK AND FORTH ON THE SCHEDULING OF THIS DURING JURY SELECTION. WHAT MR. CLARKE JUST DOESN'T RESPOND TO AND IS THE ESSENTIAL THRUST HERE, IS THAT IN OUR MOTION TO WITHDRAW, WE DO NOT WAIVE OUR RIGHT TO ATTACK THE RELIABILITY OF THE EVIDENCE AND PERHAPS HAVE THIS COURT ULTIMATELY RULE THAT SOME OR ALL OF IT SHOULD NOT BE CONSIDERED BY THE JURY IN THE END BECAUSE OF THE WAY THE TESTS WERE PERFORMED, WHETHER THEY USED CORRECT PROCEDURES AND CERTAINLY 352 OBJECTIONS AND OBJECTIONS UNDER CELLA AND COLLINS AS WE LAY OUT IN OUR ARGUMENTS. THAT'S ALL WE'RE ASKING YOU TO DO. I DON'T THINK IT WOULD REALLY BE POSSIBLE TO MAKE A SENSIBLE DECISION ON THOSE OBJECTIONS WITHOUT HEARING THE EVIDENCE. BUT ON THAT FIRST POINT, WHICH THEY DON'T RESPOND TO, WHICH I FIND QUITE DISTURBING, THAT THIS EVIDENCE MUST BE PRESENTED WITH STATISTICS, AND OUR FURTHER SUGGESTION, IF YOU AGREE WITH US ON THAT POINT -- AND I THINK IT'S THE HOLDING OF BARNEY, IT'S WHAT THE NATIONAL RESEARCH COUNSEL HAS SUGGESTED, I THINK IT'S THE OVERWHELMING WEIGHT OF SENSIBLE PRECEDENT WHETHER YOU'RE IN A FRYE OR DAUBER JURISDICTION THAT THE EVIDENCE IS STATISTICAL -- THAT THE COURT FURTHER INSTRUCT AND WE WILL PRESENT ON A SUGGESTION TO YOU IF YOU AGREE WITH THIS FIRST POINT AS TO, THESE ARE JUST GENE FREQUENCIES AND THERE ARE OTHER PROBABILITIES THAT AFFECT THE WEIGHT OF THE EVIDENCE THAT YOU SHOULD CONSIDER ABOUT ERROR RATES IN THE LABORATORY, ERRORS IN THE LABORATORY, ERRORS IN THE COLLECTION OR EVEN THE PROBABILITY THAT THE EVIDENCE WAS TAMPERED WITH. AND THESE ARE THINGS THAT I THINK THE JURY HAS TO KNOW IN ORDER TO FAIRLY EVALUATE THE EVIDENCE SO THAT THEY DON'T THINK THAT THIS ASTRONOMICAL STATISTIC THEY'RE GOING TO HEAR IS A PROBABILITY OF GUILT OR PROBABILITY THAT MR. SIMPSON IS DEFINITELY THE SOURCE OF THE BLOOD DROP IN THE DRIVEWAY AND ALL OTHER WAYS THAT THESE THINGS CAN BE CONFLATED, PARTICULARLY SINCE OF THE TREMENDOUS DANGER THERE IS OF JURORS EVALUATING STATISTICS, LAY PEOPLE EVALUATING STATISTICS, WHICH CAN BE VERY MISLEADING. THAT'S THE 352 ARGUMENT. IT'S A PRONG 3 ARGUMENT. IT'S THE ONLY ONE THAT WE REALLY WANT YOU TO RESOLVE NOW OR WE THINK YOU CAN. AS FAR AS THIS NOTION THAT WE WOULD REALLY HAVE KNOWN EXACTLY WHAT HAD BEEN DONE AT DOJ BECAUSE DR. BLAKE WENT THERE AND TOOK PICTURES OF THE GELS AND WAS MONITORING WHAT MR. SIMS WAS DOING, BEFORE WE LOOK AT HIS RESULTS, BEFORE WE LOOK AT HIS RAW NOTES, BEFORE ALL OF THAT IS EVALUATED AND WE SEE WHAT HE ACTUALLY IS INTERPRETING THINGS AS AND BEFORE FRANKLY WE EVEN HEAR HIM TESTIFY AS TO WHAT THE MEANING OF CERTAIN RESULTS ARE, WE CAN'T LODGE OUR OBJECTION SPECIFICALLY AND PROPERLY AS TO WHERE WE THINK THE EVIDENCE IS FATALLY UNRELIABLE. NOW, THAT COULD HAPPEN OBVIOUSLY OUTSIDE THE PRESENCE OF THE JURY, BUT WE'RE NOT SUGGESTING THAT. IT SHOULD HAPPEN IN THE PRESENCE OF THE JURY AND THEN WE LODGE OUR OBJECTION UNDER PRONG 3. WE'RE NOT ASKING FOR A PRONG 3 DETERMINATION OUTSIDE THE PRESENCE OF THE JURY TO DELAY THE TRIAL. WE'RE NOT ASKING FOR THAT. FINALLY, WITH RESPECT TO THE ISSUE OF PRONG 1 ON THE NEW TEST RESULTS, I'M NOT GOING TO -- I THINK THE RECORD IS CLEAR ABOUT THE NATURE OF THE WITHDRAWAL AND WHAT HAPPENED ON THE RECORD, AND THE COURT NOTED ITSELF THAT MR. SIMPSON WAS SAYING THAT HE UNDERSTOOD WHAT WAS GOING ON, HE HAD BEEN ADVISED BY HIS COUNSEL AS TO WHAT THE LEGAL RAMIFICATIONS OF ALL THIS WAS, BUT WITH RESPECT TO WHAT HE WAS AUTHORIZING AND WHAT HE WAS TALKING ABOUT, HE WAS SAYING, "I UNDERSTAND AND I -- THE WITHDRAWAL OF THE MOTION AS SET FORTH BY MY LAWYERS," AND THAT'S WHAT HE DID, AND THE COURT NOTED THAT FOR THE RECORD. SO I DON'T THINK THAT YOU CAN GET ANY KIND OF BLANKET WAIVER OUT OF HIS STATEMENT. IT DOESN'T MAKE ANY SENSE. NOBODY -- WE WITHDREW THE MOTION. WE WAIVED AN OUTSIDE THE PRESENCE OF THE JURY HEARING ON PRONG 1 FOR SURE. WE WERE NOT WAIVING, DIDN'T INTEND TO WAIVE -- I THINK IT WAS CLEAR TO THE COURT EVEN WHEN WE DID IT WE WOULD BE REVISITING THIS THIRD PRONG CHALLENGES, 352 CHALLENGES, THE CHALLENGES THAT WE'VE LAID OUT. NOW, WITH RESPECT TO THE NEW TEST RESULTS AND PRONG 1, I THINK FOR THE REASONS I STATED YESTERDAY AND THE WAY THE TESTING WAS PERFORMED STRATEGICALLY THAT -- AND THE WHOLE WAY THAT THIS LITIGATION HAS EVOLVED, THAT WE'RE ENTITLED TO A PRONG 1 HEARING OUTSIDE THE PRESENCE OF THE JURY ON THESE NEW RESULTS. WE'RE ENTITLED TO IT. IF WE'RE ENTITLED TO THAT, WHAT WE SHOULD CERTAINLY BE ENTITLED TO IS THE ALTERNATIVE WE PROPOSED TO THE COURT. AND THAT IS THAT WE DO THIS IN THE SAME FASHION AND FORM THAT WE SUGGESTED TO THE COURT IN DECEMBER; AND THAT IS WE PROCEED WITH THE TRIAL JUST AS IT'S SUPPOSED TO OCCUR, JUST AS THE PROSECUTION HAS PLANNED. THEY PRESENT THEIR WITNESSES. IF THEY FEEL THAT THEY HAVE TO CALL OTHER WITNESSES OUTSIDE THE PRESENCE OF THE JURY ON SOME OTHER DAYS TO BUILD FOUNDATION, THEY CAN DO SO, AND WE WILL PRESENT OUR WITNESSES IN THE DEFENSE CASE; AND THEN AT THE END, THE COURT CAN DECIDE. WHAT WE'RE -- THAT ALTERNATIVE WAIVES THE PREJUDICE THAT A DEFENDANT WOULD OTHERWISE SUFFER IF THE RESULTS WERE HEARD BY THE JURY AND THEN THE COURT ULTIMATELY STRUCK THEM. SO WE THINK WE'RE ENTITLED TO THE HEARING, BUT WE WOULD PROPOSE TO THE COURT THE ALTERNATIVE. IF THE COURT DOESN'T ACCEPT THE ALTERNATIVE, I MEAN WE HAVE NO CHOICE BUT TO ASK FOR THE HEARING. BUT IT'S THE ALTERNATIVE THAT OBVIOUSLY WE'RE INTERESTED IN HERE.

THE COURT: THANK YOU, COUNSEL.

MR. SCHECK: THE WAY WE THINK ABOUT THIS, I THINK THE NEXT ORDER OF BUSINESS IS MR. HARMON'S MOTION TO WHICH MR. THOMPSON WILL RESPOND.

THE COURT: ALL RIGHT. MR. HARMON.

MR. HARMON: THANK YOU, YOUR HONOR. SOUNDS LIKE "RELIABLE" HAS A LOT OF DIFFERENT MEANINGS DEPENDING ON WHEN YOU SAY IT AND WHAT YOU INTEND TO COMMUNICATE AND WHAT YOU REALLY MEAN BY IT. CLEARLY UNDER CALIFORNIA LAW IN THESE AREAS, IT HAS TWO DIFFERENT MEANINGS, AND I'VE LAID THEM OUT IN MY MOTION BECAUSE THEY HAVE PROFOUND SIGNIFICANCE. AND EVEN ON THIS MOTION, IT MIGHT BE HELPFUL TO WATCH THE JANUARY 4TH PROCEEDINGS TO SEE HOW WORDS WERE BEING USED TO MEAN OTHER THAN WHAT WAS PATENTLY OBVIOUS TO EVERYBODY IN THE ROOM, BECAUSE ONE CAN'T LOOK AT THAT TAPE AND NOT REALIZE THAT THESE DISCUSSIONS WERE INEVITABLE. IT WAS AN OPPORTUNITY TO FINALLY RESOLVE IT. BUT THAT'S NOT WHAT PEOPLE HAD IN MIND. SO RELIABILITY IN THE TWO CONTEXTS -- AND THE JANUARY 4 CONTEXT, THE RELIABILITY THAT WAS AT ISSUE CLEARLY HAS TO DO WITH WHAT PEOPLE THINK ABOUT THE METHODS THAT ARE USED. IT CLEARLY UNDER CALIFORNIA CASE LAW, THAT RELIABILITY CAN BE DEMONSTRATED, AND THE ONLY PRACTICAL WAY TO DEMONSTRATE IT IS BY HEARSAY TESTIMONY OR HEARSAY OPINIONS FROM OTHER PEOPLE, ARTICLES, THINGS LIKE THAT. BUT THAT RELIABILITY CHANGES ONCE THE COURT MAKES THE FINDING, THE MIXED QUESTION OF LAW AND FACT INTO A STRAIGHT FINDING OF FACT BY A JURY.

IN A JURY TRIAL, THE FACT FINDER, WHICH IS WHAT WE CALL THEM -- WE DON'T CALL THEM THE MIXED QUESTION OF LAW AND FACT FINDER. THOSE PEOPLE ARE FACT FINDERS. THEY DON'T ACTUALLY FIND SPECIFIC FACTS. THEY DECIDE WHETHER SOMETHING'S BEEN PROVEN BEYOND A REASONABLE DOUBT. BUT "RELIABILITY" IN THAT CONTEXT SIMPLY MEANS, DO THE TEST WORK, NOT DO OTHER FACELESS INVISIBLE PEOPLE WHO'VE NEVER WRITTEN SCIENTIFIC ARTICLES, DO THEY THINK IT WORKS OR DO THEY HAVE QUALIFIED RESERVATIONS ABOUT IT THAT THEY WRITE TO THE NATIONAL ASSOCIATION OR CRIMINAL DEFENSE LAWYERS AND PUT IN THEIR BINDERS SO THAT WE CAN REGURGITATE THESE THINGS IN FRONT OF JURIES. IT'S WHETHER OR NOT THE TESTS PRODUCE THE CORRECT ANSWERS. THAT'S THE ONLY FACT ISSUE IN THAT CONTEXT THAT THE JURY GETS TO DECIDE. AND SO THE BRIEF THAT I FILED, IT WAS CLEAR ON JANUARY 4TH THAT I WOULD BE FILING A BRIEF SUCH AS THIS BECAUSE IT WAS CLEAR THAT REGARDLESS OF THE DECEMBER RULING BY YOU AND REGARDLESS OF THE CLEAR UNAMBIGUOUS WAIVER ON JANUARY 4TH, THAT THE DEFENSE TEAM HAD EVERY INTENTION REGARDLESS OF ANY KIND OF RULING BY YOU OF PARADING ALL SORTS OF UNRELIABLE HEARSAY IN THROUGH CROSS-EXAMINATION OF THE PROSECUTION WITNESSES. THAT WAS NEVER IN DOUBT. THAT IS THE ONLY WAY TO CONFUSE THE JURY AND DISTRACT THEM FROM THE ONLY ISSUE, AND THAT IS, ARE THE TESTS IN FACT RELIABLE. SO WHEN THE DEFENSE FILED THE MOTION THAT MR. CLARKE JUST RESPONDED TO, IT BECAME IMPORTANT TO TAKE THIS BRIEF OUT OF THE CAN AND JUST FILE IT ALONG WITH IT BECAUSE THEY ARE TOTALLY CONNECTED IN FACT AT THIS POINT IN TIME AND THEY'RE TOTALLY CONNECTED IN THE KIND OF ASSESSMENT THAT YOU HAVE TO MAKE IN THIS POINT. PERHAPS, YOU KNOW, WHAT WE'VE -- IN DISCUSSIONS ABOUT PERSONAL ATTACKS BEING MADE, ONE OF THE EXAMPLES OF THE KINDS OF HEARSAY THAT GETS PARADED AROUND IS ON PAGE 16 OF THE BRIEF THAT MR. CLARKE RESPONDED TO. AND THESE ARE THE KINDS OF SCANDALOUS BASELESS THINGS THAT GET PERVERTED AND PARADED ACROSS THE COUNTRY. THAT'S THE FOOTNOTE 12, THE ACCUSATION, THE PERSONAL ACCUSATION THAT MISS CLARK HAS PREVIOUSLY MISREPRESENTED THINGS IN HER PRESENTATION TO JURORS. AND IN FACT, IF THE COURT WERE TO READ THE ACTUAL ARTICLE THAT THE COLLEAGUE OF THE DEFENSE TEAM HAS WRITTEN ON THIS POINT, THE COURT WOULD SEE VERY CLEARLY -- AND THAT'S ONE OF THE EXHIBITS THAT WAS APPENDED TO THE DEFENDANT'S ADMISSIBILITY BRIEF -- THAT IN FACT, MISS CLARK NEVER MISREPRESENTED ANYTHING IN HER PRESENTATION. THE ARTICLE IS ON THE CARDOZA LAW REVIEW. IT'S FOOTNOTE 7.

EVERYONE ON THIS SIDE OF THE ROOM KNOWS EXACTLY WHAT HAPPENED. THE QUESTIONS THAT WERE ASKED OF THE SCIENTISTS -- AND THESE WERE IN CONTEXT OF PRIOR QUESTIONS AND SUBSEQUENT QUESTIONS -- THEY WERE ASKED BY THE COURT. FOR PEOPLE TO SAY, AS WAS DONE IN THE BRIEF AND AS MR. SCHECK TOOK A GREAT ADVANTAGE OF YESTERDAY, THIS IS THE SECOND TIME MISS CLARK HAS DONE SOMETHING LIKE THIS, IT'S NOT THE SECOND TIME. IT'S NOT THE FIRST TIME. THE COURT ASKED THE QUESTION: "DOES THAT MEAN IT'S CONSISTENT WITH HIS BEING THE FATHER OR IT'S 100 PERCENT CERTAIN THAT HE IS THE FATHER? "ANSWER: IN MY OPINION, HE IS THE FATHER." AND THEN THE COURT ASKED ANOTHER QUESTION. THESE ARE THE KINDS OF LOW-LEVEL, UNRELIABLE, PREPACKAGED THINGS THAT WILL CERTAINLY BE INTRODUCED INTO THIS TRIAL THROUGH CROSS-EXAMINATION OF OUR WITNESSES SHOULD THE COURT NOT ADHERE TO THE CLEAR RULE OF LAW IN THIS STATE. I CAN'T SPEAK TO WHAT THE RULE OF LAW IS IN OTHER STATES, BUT SECTION 721 SIMPLY STANDS FOR THE PROPOSITION THAT IT IS INAPPROPRIATE TO CROSS-EXAMINE ANY EXPERT ON MATERIAL THAT THAT EXPERT HAS NOT REFERRED TO, CONSIDERED OR RELIED UPON. AND I THINK BY MR. SCHECK'S COMMENTS YESTERDAY, IT IS CLEAR THAT THEY ARE OUTRAGED AT THE POSSIBILITY THAT THEY WILL NOT BE ABLE TO CROSS-EXAMINE EXPERT WITNESSES ON THE KINDS OF MATERIAL THAT THEY WANT TO INTERJECT INTO THIS CASE, THE KINDS OF THINGS THAT ARE HEARSAY. I USE DR. MULLIS AS AN EXAMPLE. I USED HIM AS AN EXAMPLE ONLY BECAUSE HE HAS NEVER PUBLISHED ANY SCIENTIFIC ARTICLE CRITICAL OF THE TECHNIQUES USED. I INVITED YOU IN MY MOTION TO REVIEW HIS TESTIMONY THAT WAS APPENDED TO THE DEFENDANT'S BRIEF IN OPPOSITION TO THE ADMISSIBILITY OF DNA EVIDENCE. IT'S HARDLY WHAT YOU WOULD CALL A SCATHING INDICTMENT OF THE FORENSIC APPLICATION OF PCR, BUT THOSE ARE THE VERY KINDS OF THINGS THAT THE DEFENSE INTENDS TO ELICIT ON CROSS-EXAMINATION OF OUR WITNESSES EVEN THOUGH OUR WITNESSES HAVE NOT REFERRED TO, CONSIDERED OR RELIED UPON THEM. NOW, THERE'S A VERY GOOD REASON THAT THEY WANT TO DO IT THAT WAY. AND THE REASON IS BECAUSE THAT DENIES US THE OPPORTUNITY TO CROSS-EXAMINE THOSE PEOPLE. AND AS I ALLUDED TO IN MY BRIEF, THERE ARE VERY GOOD REASONS THE DEFENSE DOES NOT WANT US TO CROSS-EXAMINE THE EXPERTS THAT THEY'D LIKE TO GET IN THROUGH HEARSAY.

WE WOULD LOVE TO CROSS-EXAMINE EACH AND EVERY WITNESS THAT THE DEFENSE WOULD LIKE TO HOLD OUT AS VOICING SOME OPPOSITION TO THE ACTUAL RELIABILITY OF THE TESTS PRODUCED IN THIS CASE, WHICH IS THE ONLY RELIABILITY LEFT NOW THAT THEY'VE WAIVED THEIR HEARING. UNFORTUNATELY, WE'LL NEVER GET TO CROSS-EXAMINE DR. BLAKE BECAUSE THEY JUST DROPPED HIM LIKE A HOT POTATO FROM THEIR WITNESS LIST. THAT WAS NO SURPRISE. IF YOU LISTEN AND THINK BACK VERY CAREFULLY ON MR. SCHECK'S ARGUMENTS YESTERDAY, THEY HAVE SOMEHOW MERGED TWO LEGAL PRINCIPLES IN THIS AREA, TWO EVIDENCE CODE SECTIONS; AND THAT IS, WHAT SORT OF MATERIAL AN EXPERT MAY REASONABLY RELY UPON IN PROVIDING EXPERT TESTIMONY AND OPINION TESTIMONY IN A CASE AND USE THAT CONCEPT TO OBLITERATE THE RESTRICTIONS ON CROSS-EXAMINATION OF EXPERTS THAT I'VE ALLUDED TO IN EVIDENCE CODE SECTION 21. AND IF YOU ALLOW THAT SORT OF MERGER, THE COURT OF PERVERSE PRINCIPAL THAT COMES OUT OF IT IS, THEY GET TO DECIDE WHAT OUR WITNESSES SHOULD HAVE RELIED UPON. AND WHEN THEY GET TO DECIDE WHAT THEY SHOULD HAVE RELIED UPON, THEN THEY GET TO CROSS-EXAMINE ON ALL THIS BASELESS FACELESS HEARSAY THAT THEY CERTAINLY SEEK TO INTRODUCE IN THIS CASE, NOT FROM THEIR WITNESSES, BUT FROM OUR WITNESSES.

WE DO NOT SEEK TO IMPOSE ANY RESTRAINTS OTHER THAN OTHER EVIDENCE CODE PROVISIONS AND OTHER CASE LAW PROVISIONS SUCH AS IN PEOPLE VERSUS CORRISH ON THEIR EFFORTS TO CONVINCE THIS JURY THAT IN FACT OUR RESULTS ARE UNRELIABLE. NOW, THAT'S GOING TO BE PRETTY HARD IN THIS CASE, YOUR HONOR, BECAUSE THE ONLY WAY THEY COULD DO THAT IS IF THEY RETESTED OUR EVIDENCE THROUGH DNA TESTING. MR. SCHECK EXPRESSED CONCERN THAT SOMEONE -- NOBLE PRIZE WINNER SUCH AS DR. MULLIS WOULD HAVE TO ANSWER PERSONAL QUESTIONS. WELL, THE LAST TIME I LOOKED IN THE CALIFORNIA EVIDENCE CODE, WE DIDN'T HAVE AN EXCEPTION FOR NOBLE PRIZE WINNERS. THAT EVERYBODY THAT STEPS UP THERE AND RAISES THEIR HAND, THEY'RE A WITNESS. IF THEY'RE A NOBLE PRIZE WINNER, THAT'S FINE. THEY'RE A WITNESS FIRST, AND EVERY WITNESS' CREDIBILITY IS OPEN TO THE SAME CONSIDERATIONS. DID I HAVE A DREAM OR DID I SEE RON SHIPP BEING DRAKED OVER THE COALS ABOUT VIRTUALLY EVERY ASPECT OF HIS PERSONAL LIFE? DID I DREAM OR DID DENISE BROWN HAVE TO DO THE SAME THING? AND WHAT DID THOSE TWO PEOPLE DO TO DESERVE THAT? RON SHIPP WAS THE DEFENDANT'S FRIEND. THAT'S WHAT -- THAT'S THE PAYBACK THAT HE GOT. DENISE BROWN HAD TO SEE HER SISTER TAKEN AWAY FROM HER. NOW, DO WE HAVE TO TREAT A NOBLE PRIZE WINNER ANY DIFFERENTLY JUST BECAUSE THEY WANT US TO? I DON'T THINK SO, YOUR HONOR. WE'LL SEE. BUT I'M TELLING YOU, THAT DAY WILL NEVER COME. IF THIS COURT ADHERES TO EVIDENCE CODE SECTION 721, THE CASE THAT'S CITED IN JEFFERSON, HE'LL BE A BLIP ON THE RADAR SCREEN. HE'S NOT GOING TO SIT UP THERE AND TESTIFY BECAUSE HE HAS NOTHING MEANINGFUL TO ADD ABOUT THE ACTUAL RELIABILITY OF OUR TEST RESULTS. I URGE YOU TO FOLLOW THE CLEAR LAW IN THIS POINT. I'M ANXIOUS TO HEAR A LEGAL RESPONSE TO OUR IN LIMINE MOTION. I BROUGHT IT UP TO THE COURT BECAUSE IT WAS CLEAR ON JANUARY 4TH WE WOULD HAVE TO HAVE THIS DISCUSSION. THANK YOU.

THE COURT: THANK YOU. MR. THOMPSON.

MR. THOMPSON: GOOD AFTERNOON, YOUR HONOR. BEFORE I RESPOND DIRECTLY TO MR. HARMON'S MOTION, I WANT TO RESPOND BRIEFLY TO HIS POINT ABOUT FOOTNOTE 12 OF THE NOTICE OF OBJECTIONS AND THE STATEMENT THAT MISS CLARK HAD PREVIOUSLY PRESENTED TESTIMONY IN THE FORM THAT WE CONSIDER OBJECTIONABLE. I WROTE THAT FOOTNOTE. I WROTE IT BASED ON A CAREFUL REVIEW OF THE TRANSCRIPT. WE WILL SUBMIT THE TRANSCRIPT TO YOU SO YOU CAN SEE THE ENTIRE THING IN CONTEXT, AND WE CONTINUE TO REGARD THAT TRANSCRIPT AS AN EXCELLENT EXAMPLE OF THE TYPE OF TESTIMONY THAT WE THINK IS INADMISSIBLE UNDER CALIFORNIA LAW ON THE GROUNDS THAT WE LAID OUT IN THE NOTICE OF OBJECTIONS. ALL RIGHT. NOW, LET ME TURN TO MR. HARMON'S ARGUMENTS --

THE COURT: ALL RIGHT. MR. THOMPSON, WHEN DO YOU ANTICIPATE LODGING THAT WITH THE COURT, THE COMPLETE TRANSCRIPT? I WOULD LIKE TO SEE IT.

MR. THOMPSON: I COULD FILE THE TRANSCRIPT AS SOON AS TOMORROW, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU.

MR. THOMPSON: ALL RIGHT. ALL RIGHT. NOW, MR. HARMON'S MOTION HERE IS AN EFFORT TO RESTRICT THE ABILITY OF THE DEFENSE TO INQUIRE OF PROSECUTION WITNESSES CONCERNING THE GENERAL ACCEPTANCE OF THE TECHNIQUES THAT ARE BEING USED HERE. IT GOES FURTHER IN ATTEMPTS TO LIMIT TESTIMONY BY DEFENSE WITNESSES REGARDING THE OPINIONS OF PEOPLE IN THE SCIENTIFIC COMMUNITY CONCERNING THESE TECHNIQUES WHOSE RELIABILITY IS AT ISSUE IN THIS CASE. NOW, MR. HARMON MAKES A SERIES OF DISTINCT LEGAL ARGUMENTS FOR HIS POSITION, AND I THINK IT WOULD BE USEFUL TO GO THROUGH THEM ONE AT A TIME TO TRY TO DISENTANGLE THEM AND SHOW YOU WHY WE THINK THEY'RE ALL GROUNDLESS AND THAT WE HAVE A PERFECT RIGHT TO ENGAGE IN INQUIRY IN THESE AREAS SUBJECT TO OBVIOUS LIMITATIONS IMPOSED BY THE HEARSAY RULE OR SECTION 352. NOW, THE FIRST ARGUMENT THAT MR. HARMON MAKES IN HIS PAPERS IS THAT THE DEFENDANT IS SOMEHOW PRECLUDED FROM INQUIRY ON GENERAL ACCEPTANCE BY VIRTUE OF THE DETERMINATION OF PRELIMINARY FACTS ARISING UNDER KELLY. IN OTHER WORDS, SOMEHOW WE ARE BOUND OR LIMITED BY VIRTUE OF THE FACT THAT THERE IS A DETERMINATION OF PRELIMINARY FACT REGARDING GENERAL ACCEPTANCE. NOW, I THINK IN EVALUATING THIS CLAIM, THE COURT SHOULD KEEP IN MIND THE DISTINCTION THAT'S DRAWN IN ARTICLE 2 OF THE EVIDENCE CODE, THAT IS EVIDENCE CODE SECTION 400 THROUGH 406 BETWEEN PRELIMINARY FACT ON THE ONE HAND AND FACT IN ISSUE ON THE OTHER HAND. PRELIMINARY FACTS ARE OF COURSE FACTS THAT ARE DECIDED BY THE JUDGE IN ORDER TO DETERMINE THE ADMISSIBILITY OF EVIDENCE, AND GENERAL ACCEPTANCE WITHIN THE RUBRIC OF KELLY IS A PRELIMINARY FACT. FACTS IN ISSUE ARE TO BE DECIDED BY THE JURY. SO THE BASIC LEGAL POINT RAISED BY THIS ARGUMENT IS WHETHER AND UNDER WHAT CIRCUMSTANCES A DETERMINATION OF PRELIMINARY FACT IS BINDING ON THE JURY OR PLACES A LIMITATION ON INQUIRY BY A PARTY. AND THE ANSWER THAT'S VERY CLEAR FROM THE EVIDENCE CODE AND THE CASE LAW IS NEVER. NEVER. THERE IS A COMPLETE WALL OF SEPARATION BETWEEN THE PRELIMINARY FACT DETERMINATION AND THE DETERMINATION OF FACT BY THE JURY. THIS IS MADE -- THIS IS MADE PERFECTLY CLEAR IN EVIDENCE CODE SECTION 406. THE ARTICLE 2 ENCOMPASSES 400 THROUGH 406. SECTION 406 STATES VERY CLEARLY: "THIS ARTICLE DOES NOT LIMIT THE RIGHT OF A PARTY TO INTRODUCE BEFORE THE TRIER OF FACT EVIDENCE RELEVANT TO WEIGHT OR CREDIBILITY." NOTHING ABOUT THE PRELIMINARY FACT DETERMINATION LIMITS WHAT CAN BE PRESENTED TO THE JURY. I THINK IF WE THINK ABOUT THIS FOR A MINUTE, IT'S CLEAR WHY THAT MUST BE SO. IT MUST BE SO AS A MATTER OF CONSTITUTIONAL PRINCIPAL. FOR ONE THING, FOR THE -- FOR THE PRELIMINARY FACT DETERMINATION, A JUDGE'S ISSUE TO BE IMPOSED ON THE JURY, THE TRIER OF FACT, WOULD INVADE THE PROVINCE OF THE JURY ON THE VERY FACTS WHICH HAVE TRADITIONALLY BEEN LEFT TO THE JURY, SUCH AS THE RELIABILITY OF THE EVIDENCE, AND IT WOULD INVITE THE PROVINCE OF THE JURY IN A PARTICULARLY DANGEROUS WAY BECAUSE THERE IS A DIFFERENT STANDARD OF PROOF FOR PRELIMINARY FACT DETERMINATION BY THE JUDGE AND FOR FACT IN ISSUE DETERMINATION BY THE JURY. IN THE CONTEXT OF A CRIMINAL TRIAL, THE STANDARD OF PROOF FOR THE JURY IS BEYOND A REASONABLE DOUBT. WHAT MR. HARMON'S PROPOSAL WOULD HOLD IS THAT IF THE PROSECUTION CAN BY A PREPONDERANCE OF EVIDENCE CONVINCE THE COURT THAT A PARTICULAR TECHNIQUE IS GENERALLY ACCEPTED, THEN THAT WOULD PRE -- THAT WOULD -- THAT HOLDING WOULD BE IMPOSED ON THE TRIER OF FACT, THE JURY, WHICH HAS A BEYOND A REASONABLE DOUBT STANDARD. SO IT INVADES THE PROVINCE OF THE JURY, IT UNDERMINDS THE PRESUMPTION OF INNOCENCE AND THE CORRECT BURDEN OF PROOF. NOW, THERE ARE A NUMBER OF EXAMPLES IN CALIFORNIA LAW THAT ILLUSTRATE THE FACT THAT THE -- THIS FACT OF SEPARATION BETWEEN PRELIMINARY FACT DETERMINATION BY THE JUDGE AND FACT IN ISSUE DETERMINATION BY THE JURY. ONE EXAMPLE THAT COMES UP IS THE DETERMINATION OF THE RELIABILITY OF A LINEUP. OFTEN AS AN ISSUE OF PRELIMINARY FACT, THE TRIAL COURT HAS TO DECIDE WHETHER A LINEUP IS RELIABLE. IF THE JUDGE DECIDES THAT IT'S SUFFICIENTLY RELIABLE FOR THE LINEUP IDENTIFICATION TO BE ADMISSIBLE, THEN THE ISSUE COMES UP, DOES THE JUDGE'S DETERMINATION OF RELIABILITY POSE ANY LIMITATION ON HOW THE DEFENDANT CAN ATTACK THE RELIABILITY OF THE LINEUP AT TRIAL. ANSWER, NO. THE ANSWER IS VERY CLEARLY NO, AND I REFER YOU TO PEOPLE VERSUS RODRIGUEZ, 88 CAL. REPORTER 789 OR 10 CAL. APP. 3D. 18, WHICH STANDS FOR THIS PROPOSITION THAT THE PRELIMINARY FACT DETERMINATION OF RELIABILITY OF THE LINEUP IS IN NO WAY BINDING ON THE JURY. THE SAME ISSUE COMES UP WITH REGARD TO THE PRELIMINARY FACT OF THE RELIABILITY OF A HEARSAY STATEMENT. THE JUDGE MUST DETERMINE AS A PRELIMINARY MATTER OFTEN WHETHER A HEARSAY STATEMENT IS SUFFICIENTLY RELIABLE TO GO TO THE JURY. IF THE JUDGE DETERMINES IT'S RELIABLE, DOES THAT THEN MEAN THAT THERE'S -- THAT THE -- THAT THAT'S SOMEHOW BINDING ON THE JURY OR THAT THAT LIMITS WHAT LITIGANTS CAN DO? OBVIOUSLY NOT. OBVIOUSLY NOT, AND THE EVIDENCE CODE SAYS SO. I REFER YOU PARTICULARLY TO THE JUDICIARY COMMITTEE'S COMMENT TO EVIDENCE CODE SECTION 405, WHICH SAYS EXPLICITLY THAT THIS SORT OF LIMITATION DOES NOT APPLY. I THINK THE -- THIS -- THIS POINT IS ALSO EASILY INFERRED FROM THE STRUCTURE OF THE RULES THEMSELVES. SOME ISSUES OF PRELIMINARY FACT DETERMINATION FALL UNDER SECTION 403. SOME FALL UNDER SECTION 405. WITH REGARD TO THOSE THAT FALL UNDER SECTION 403, THE LAW REQUIRES THAT THE JURY BE ALLOWED TO REDETERMINE THE FACT AND IT REQUESTED INSTRUCTED TO REDETERMINE THE FACT. IN EFFECT, WITH RESPECT TO DNA EVIDENCE, WE KNOW SOME ISSUES DO FALL UNDER 403 DESPITE WHAT MR. CLARKE SAID BECAUSE WE ARE INSTRUCTED SO BY THE COURT OF APPEAL IN PEOPLE VERSUS PIZARRO. IN PIZARRO, THE COURT OF APPEAL SAID THAT ISSUES OF PRELIMINARY FACT DETERMINATION REGARDING THE ADEQUACY AND RELEVANCE OF A DATABASE FALL UNDER 403. THEY ARE ISSUES TO BE REDETERMINED BY THE JURY. SO OBVIOUSLY IF IT FALLS UNDER 403 AND THE JURY IS GOING TO REDETERMINE IT, THEN THE JUDGE'S DETERMINATION HAS NO LIMITING EFFECT. OTHER DETERMINATIONS FALL UNDER 405. WITH RESPECT TO THOSE FALLING UNDER 405 THOUGH, AGAIN, THERE'S THIS WALL OF SEPARATION. SECTION 405 SAYS IN PART, 405(B), THAT IF THE PRELIMINARY FACT IS ALSO A FACT AT ISSUE IN THE ACTION, SAYS, QUOTE: "THE JURY SHALL NOT BE INFORMED OF THE COURT'S DETERMINATION AS TO THE EXISTENCE OR NONEXISTENCE OF THE PRELIMINARY FACT; AND IF THE PROFFERED EVIDENCE IS ADMITTED, THE JURY SHALL NOT BE INSTRUCTED TO DISREGARD THE EVIDENCE IF ITS DETERMINATION OF THE FACT DIFFERS FROM THE COURT'S DETERMINATION OF THE FACT." SO THIS ARGUMENT THAT THE DETERMINATION OF PRELIMINARY FACT WITH RESPECT TO KELLY SOMEHOW LIMITS WHAT CAN BE DONE IN FRONT OF THE JURY IS SIMPLY A NONSTARTER. THERE'S NO BASIS FOR IT. MR. CLARKE SUGGESTS THAT -- THAT SECTION -- THAT ARTICLE 2 OF THE EVIDENCE CODE MAY SOMEHOW BE INAPPLICABLE TO KELLY DETERMINATIONS. HE CITES NO AUTHORITY FOR THAT WHATSOEVER. I DON'T BUY THE ARGUMENT. BUT EVEN IF IT'S TRUE AND EVEN IF KELLY IS SOMEHOW SEPARATE, THE IDEA THAT THE KELLY DETERMINATION LIMITS THE KIND OF CHALLENGE THAT CAN BE MADE IN FRONT OF THE JURY ONCE THE EVIDENCE IS ADMITTED IS BELIED BY THE VERY LANGUAGE OF THE KELLY CASES. I REFER YOU, FOR EXAMPLE, TO -- THERE ARE TWO INTERESTING CASES WHERE KELLY-FRYE CHALLENGES WERE RESOUND -- BY THE DEFENSE WERE RESOUNDINGLY REJECTED BY THE COURT AND COURTS HELD AS AN ISSUE OF PRELIMINARY FACT THAT SEROLOGY TESTS WERE ADMITTED THAT -- WHERE THE COURT OF APPEAL COMMENTS ON THIS. ONE IS PEOPLE VERSUS SMITH AT 215 CAL. APP. 3D 19. AFTER THE TRIAL JUDGE TOOK JUDICIAL NOTICE OF THE RELIABILITY OF THE SEROLOGY TESTS, THE COURT OF APPEAL NOTES THAT, QUOTE: "APPELLANT HAD FULL OPPORTUNITY TO CROSS-EXAMINE THE PROSECUTION'S SEROLOGIST'S QUALIFICATIONS AND METHODS AND TO PRESENT WHATEVER EVIDENCE HE DESIRED CHALLENGING THEM."

WHATEVER EVIDENCE HE DESIRED. SIMILAR LANGUAGE CAN BE FOUND IN PEOPLE VERSUS COOPER AT 281 CAL. REPORTER 90. AGAIN, THIS WAS A CASE WHERE THE DEFENSE MOUNTED --

THE COURT: JUST SO COUNSEL ARE AWARE, CAL. REPORTER CITES DON'T DO ME MUCH GOOD AS A PRACTICAL MATTER.

MR. THOMPSON: ALL RIGHT. I CAN PROVIDE A MORE SPECIFIC CITE.

THE COURT: NO. I'M FAMILIAR WITH THE CASE. I'M JUST SAYING IT DOESN'T HELP ME SINCE I ONLY HAVE THE OFFICIAL REPORTS.

MR. THOMPSON: OKAY. THANKS. I'LL TRY TO STICK TO THOSE TO THE EXTENT I HAVE THEM. BUT COOPER, AGAIN, THE SAME ISSUE. THE DEFENDANT'S PRETRIAL CHALLENGE UNDER KELLY TO SEROLOGY TESTS WAS RESOUNDINGLY REJECTED BY THE COURT. THE COURT DETERMINED THAT IT WAS RELIABLE AS A MATTER FOR KELLY. DOES THAT THEN LIMIT THE ATTACK ON RELIABILITY IN FRONT OF THE JURY? NO. THE COURT OF APPEAL SAYS, QUOTE: "DEFENDANT WAS ALLOWED TO CROSS-EXAMINE THE PROSECUTION'S SEROLOGIST FULLY ABOUT HIS QUALIFICATIONS AND THE MANNER IN WHICH HE DID THE TESTING AND TO PRESENT WHATEVER ADDITIONAL EVIDENCE HE DESIRED." AGAIN, WHATEVER ADDITIONAL EVIDENCE HE DESIRED. SO THIS ARGUMENT THAT SOMEHOW -- THAT SOMEHOW THE -- THE KELLY DETERMINATION PRECLUDES LINES OF INQUIRY HAS NO BASIS IN LAW. IT'S A COMPLETE NONSTARTER. WELL, THERE'S A SECOND ARGUMENT I WANT TO TURN TO NOW, AND THAT'S THE ARGUMENT MR. HARMON MAKES THAT SOMEHOW INQUIRY ON TO GENERAL ACCEPTANCE ISSUES LACKS RELEVANCE. IT'S SIMPLY NOT RELEVANT HE SUGGESTS TO INQUIRE IN FRONT OF THE JURY REGARDING THE OPINIONS OF THE SCIENTIFIC COMMUNITY ABOUT THE TECHNIQUES IN QUESTION. AND HE DRAWS THIS DISTINCTION BETWEEN ADMISSIBILITY, RELIABILITY AND ACTUAL RELIABILITY ARGUING THAT THEY'RE TWO DIFFERENT THINGS. NOW, IN FACT, I FIND NO AUTHORITY WHATSOEVER IN CALIFORNIA LAW FOR THIS DISTINCTION BETWEEN ADMISSIBILITY, RELIABILITY AND ACTUAL RELIABILITY. I THINK HE'S -- HE'S SIMPLY CONFUSED. THE REAL DISTINCTION IS BETWEEN PRELIMINARY FACT AND FACT IN ISSUE. THERE'S NO SUPPORT FOR THE ADMISSIBILITY VERSUS ACTUAL DISTINCTION. AND THE FACT THAT INQUIRY IN THESE AREAS IS RELEVANT I THINK IS PRETTY OBVIOUS.

INQUIRY ABOUT THE OPINIONS OF OTHER SCIENTISTS COULD BE RELEVANT ON A NUMBER OF ISSUES. IT CAN BE RELEVANT TO THE DIRECT ISSUE OF RELIABILITY WHICH THE JURY HAS TO ASSESS KNOWING, FOR EXAMPLE, THAT -- THAT THERE ARE SCIENTISTS SIGNIFICANT IN NUMBER AND EXPERTISE IN THE SCIENTIFIC COMMUNITY WHO CONSIDER A PARTICULAR TEST PROCEDURE UNRELIABLE.

THE COURT: HOW DO YOU DEAL WITH 721 OF THE EVIDENCE CODE THOUGH IN THAT ARGUMENT?

MR. THOMPSON: ALL RIGHT. WELL, LET'S TURN TO THAT. IF YOU ACCEPT THAT IT'S RELIABLE, I CERTAINLY -- THE 721 ARGUMENT I THINK IS A DIFFERENT -- IS A DIFFERENT ISSUE FROM RELEVANCE. BUT LET'S -- I'LL TALK ABOUT --

THE COURT: WELL, LET'S ASSUME THAT THE -- THE CONTEXT THAT YOU'RE JUST PLACED THAT ARGUMENT THOUGH IS IN THE CROSS-EXAMINATION OF PROSECUTION EXPERTS.

MR. THOMPSON: YES.

THE COURT: SO THAT'S WHY I BRING UP 721. HOW DO YOU DEAL WITH THAT LIMITATION?

MR. THOMPSON: OKAY. WELL, THE LIMITATION OF 721 HAS TO DO WITH CROSS-EXAMINING EXPERTS ABOUT DOCUMENTS, TREATISES AND SO ON ABOUT WHICH THEY'RE NOT FAMILIAR. ALL RIGHT. NOW, MR. HARMON SUGGESTS THAT THIS LIMITATION APPLIES NOT--

THE COURT: BUT 721 DOESN'T SAY ANYTHING ABOUT FAMILIARITY THOUGH.

MR. THOMPSON: WELL, THAT THEY HADN'T CONSIDERED -- YEAH, THAT THEY HADN'T RELIED UPON AND IT HADN'T BEEN ADMITTED INTO EVIDENCE. OKAY. SO -- YEAH. THE WITNESS -- IT SAYS THE WIT -- UNDER 721, SECTION 1: "THE WITNESS REFERRED TO, CONSIDERED OR RELIED UPON SUCH PUBLICATIONS IN RELYING --"

THE COURT: IN ARRIVING --

MR. THOMPSON: "IN ARRIVING AT HIS OPINION." OKAY. WELL, WITH REGARD TO THE OPINIONS OF OTHER SCIENTISTS, A NUMBER OF LINES OF INQUIRY ARE POSSIBLE UNDER 721.

THE COURT: BUT SEE, WHAT I'M CONCERNED ABOUT IS THAT ON EITHER SIDE, IF EITHER SIDE CALLS AN EXPERT WITNESS, I AM SURE THERE ARE THEORIES -- THE ONES THAT -- FOR EXAMPLE, THAT WERE MENTIONED YESTERDAY REGARDING NONRELATED CONTROVERSIAL ISSUES THAT SOMEONE WOULD WANT TO CROSS-EXAMINE ON THAT ARE JUST SO FAR OUT INTO LEFT FIELD THAT ARE RIDICULOUS. I MEAN, DO I HAVE TO ALLOW THAT IN CROSS-EXAMINATION?

MR. THOMPSON: NO. THAT WOULD BE SUBJECT TO EXCLUSION UNDER 352 AS IRRELEVANT.

THE COURT: OKAY.

MR. THOMPSON: THE --

THE COURT: ALL RIGHT. WE AGREE ON SOMETHING.

MR. THOMPSON: WELL, I HOPE ON MORE THAN ONE THING.

THE COURT: OKAY. NO. I'M -- NO. YOU'D BE SURPRISED. GO AHEAD.

MR. THOMPSON: WITH REGARD TO 721, IT'S CLEAR THAT IF -- IF -- IF A QUESTION IS ASKED OF THE EXPERT, "ARE YOU FAMILIAR WITH DR. MULLIS' TESTIMONY ON THE RELIABILITY OF HIS TECHNIQUE," OR, "DO YOU KNOW ABOUT DR. MULLIS' POSITION," IF THE ANSWER IS NO, THEN THE INQUIRY WOULD HAVE TO STOP -- THE INQUIRY WOULD HAVE TO STOP THERE. BUT AT LEAST --

THE COURT: BUT LET'S ASSUME THAT ANY EXPERT REGARDING DNA AND SPECIFICALLY IN THE PCR CONTEXT WOULD BE INTERESTED IN READING THE LITERATURE AS TO WHAT DR. MULLIS HAS TO SAY.

MR. THOMPSON: YES.

THE COURT: THEY MAY TOTALLY DISCOUNT WHAT DR. MULLIS HAS TO SAY ABOUT ANY NUMBER OF THINGS, BUT THE FACT THAT THEY'VE READ IT AND THEY'RE FAMILIAR WITH IT, DO YOU THINK THAT THAT ENTITLES YOU TO THEN CROSS-EXAMINE ON THAT?

MR. THOMPSON: YES. YES. IF THEY HAVE CONSIDERED IT.

THE COURT: IF THAT EXPERT HAS NOT RELIED UPON THAT IN FORMING THEIR OPINION?

MR. THOMPSON: IF -- I THINK THE LANGUAGE IN THE STATUTE SAYS IF THEY'VE CONSIDERED IT, THEN THEY CAN BE ASKED ABOUT IT. ALL RIGHT. CERTAINLY WE'RE ENTITLED TO INQUIRE AS TO THE STATE OF THEIR KNOWLEDGE.

THE COURT: UH-HUH.

MR. THOMPSON: TO DETERMINE WHAT IT IS THAT THEY KNOW. I THINK WE'RE ALSO ENTITLED TO PROFOUND -- TO PROPOUND HYPOTHETICAL QUESTIONS TO THEM; "WOULD IT CHANGE YOUR OPINION IF YOU KNEW THAT A CERTAIN SCIENTIST THOUGHT SUCH AND SUCH," IF ASKED IN GOOD FAITH. THOSE QUESTIONS ARE ALLOWABLE UNDER 721. THERE'S NO HEARSAY PROBLEM WITH QUESTIONS OF THAT -- OF THAT TYPE. THE PROBLEM I HAVE ABOUT MR. HARMON'S ARGUMENT BOTH ABOUT THE HEARSAY AND UNDER 721 IS THAT I THINK THEY SWEEP TOO BROADLY. THEY -- HE SEEKS TO LIMIT US FROM ENGAGING IN AN ENTIRE AREA OF INQUIRY BECAUSE HE CAN IMAGINE CERTAIN TYPES OF QUESTIONS IN THAT AREA THAT WOULD RUN AFOUL OF THE HEARSAY RULE OR SECTION 721 RULE.

BUT IN FACT, THERE ARE OTHER LINES OF INQUIRY THAT WOULDN'T. AND SO TO EXCLUDE US FROM THE ENTIRE AREA BECAUSE HE CAN IMAGINE QUESTIONS THAT WOULD BE IMPROPER IS -- GOES WAY TOO FAR AND IS PREMATURE AT THIS POINT. WHILE WE'RE QUESTIONING HIS WITNESSES, IF HE HAS HEARSAY OBJECTIONS, HE CAN RAISE THEM AT THAT POINT. IF HE HAS 721 OBJECTIONS, HE CAN RAISE THEM AT THAT POINT, AND I THINK THAT'S -- THAT'S NOT A PROBLEM. BUT TO ASK YOU AT THIS POINT TO PRECLUDE AN ENTIRE AREA OF INQUIRY WHEN THAT AREA OF INQUIRY IS CLEARLY RELEVANT -- IF IT -- IF IT WEREN'T -- IF IT WEREN'T RELEVANT TO ASK WHAT -- WHAT MEMBERS OF THE SCIENTIFIC COMMUNITY WHO ARE KNOWLEDGEABLE IN THESE AREAS THINK ABOUT THE RELIABILITY OF A TECHNIQUE, WE WOULD NEVER HAVE A FRYE STANDARD. I MEAN, THE WHOLE BASIS AND IDEA BEHIND THE FRYE STANDARD IS THAT IF YOU WANT TO KNOW WHETHER A TECHNIQUE IS RELIABLE, YOU SHOULD SOLICIT THE OPINIONS OF PEOPLE WHO ARE KNOWLEDGEABLE ABOUT THE TECHNIQUE. AND AS JUSTICE MOSK SAID IN THE SHIRLEY CASE, 18 CAL. 3D. 1 -- WHAT'S THAT?

THE COURT: NEVER MIND.

MR. THOMPSON: BUT YOU KNOW THE FAMOUS QUOTE.

"IF SCIENTISTS SIGNIFICANT IN NUMBER AND EXPERTISE PUBLICLY OPPOSE THE TECHNIQUE ON GROUNDS THAT IT'S UNRELIABLE, THEN ONE CAN DRAW A REASONABLE INFERENCE THAT IT'S NOT RELIABLE." NOW, THAT REASONABLE INFERENCE, THE RELEVANCE IS RELEVANT FOR A TRIAL JUDGE IN DETERMINING THE ISSUE OF RELIABILITY AS A MATTER OF PRELIMINARY FACT. IT'S RELEVANT FOR THE TRIER OF FACT IN DETERMINING ITS RELIABILITY AS A FACT IN ISSUE. ALL RIGHT. SO THERE CAN BE -- THERE CAN BE NO BLANKET EXCLUSION OF INQUIRY IN THESE AREAS, AND -- AND IF THE PROSECUTION HAS 721 OR HEARSAY OBJECTIONS, LET THEM MAKE THEM AT THE TIME. ALL RIGHT. A COUPLE OF OTHER ISSUES COME UP. ONE ISSUE THAT MR. HARMON RAISED IS THE NOTION OF INQUIRY ABOUT ALTERNATIVE SCIENTIFIC TECHNIQUES, THE ISSUE RAISED BY THE CASE OF PEOPLE VERSUS CORRISH WHICH HE CITES IN HIS BRIEF. NOW, AGAIN, HERE I THINK MR. HARMON IS SWEEPING TOO BROADLY. HE'S TRYING TO ELIMINATE AN ENTIRE AREA OF INQUIRY BECAUSE THERE MAY BE INSTANCES WHERE INQUIRIES IN THAT CATEGORY --

THE COURT: WELL, I VIEW THIS AS A PREEMPTIVE STRIKE IS WHAT I VIEW THIS AS.

MR. THOMPSON: RIGHT. OKAY. ON MR. HARMON'S PART?

THE COURT: YES.

MR. THOMPSON: WELL, LET'S -- WELL, HE'S -- YES, HE'S SEEKING TO WIPE OUT WHOLE LINES OF TESTIMONY.

THE COURT: NO. I THINK THE TACTIC IS, HE'S TRYING TO SENSITIZE THE TRIAL JUDGE TO WHAT'S COMING IS WHAT HE'S DOING.

MR. THOMPSON: UMM, YES. YEAH. PERHAPS. PERHAPS. LET ME -- WELL, LET ME COMMENT A BIT MORE ON CORRISH THOUGH.

THE COURT: ALL RIGHT.

MR. THOMPSON: THE -- THE -- CORRISH IS A CASE WHERE THE -- THE PROSECUTION PRESENTED SEROLOGICAL EVIDENCE. THE DEFENDANT CALLED AS AN EXPERT DR. BENJAMIN GRINBAUM WHO IS A DISTINGUISHED SEROLOGIST WHO -- WHO CRITIQUED THE PROSECUTION EVIDENCE, AND IN ORDER TO ILLUSTRATE THE NATURE OF HIS CRITICISM, OFFERED TO PRESENT A PHOTOGRAPH SHOWING HOW AN ALTERNATIVE AND IN HIS VIEW BETTER TECHNIQUE WOULD HAVE BEEN DONE. THAT PROFFER OF THE PHOTOGRAPH WAS REJECTED BY THE TRIAL COURT ON GROUNDS THAT THERE HADN'T BEEN AN ADEQUATE FOUNDATION TO SHOW ITS RELEVANCE TO THE FACT IN ISSUE OF RELIABILITY OF THE TEST THAT WAS DONE, AND THAT WAS UPHELD BY THE COURT OF APPEAL. NOW, THE PROBLEM IN CORRISH WAS SIMPLY LACK OF AN ADEQUATE FOUNDATION TO SHOW RELEVANCE. AND -- AND THE FACT THAT THE COURT OF APPEAL UPHELD THAT DECISION DOES NOT ESTABLISH ANY SWEEPING RULE OF LAW THAT SAYS EVIDENCE OF ALTERNATIVE TECHNIQUES CAN NEVER BE PRESENTED. IT SIMPLY MEANS THAT IN THAT PARTICULAR CASE, THE FOUNDATION WASN'T LAID. SO THIS NOTION THAT WE CAN -- THAT -- THAT -- THAT WE'RE LIMITED FROM ENTIRE AREAS OF INQUIRY BASED ON A CASE HAVING TO DO WITH FOUNDATIONAL ADEQUACY IS -- SWEEPS WAY TOO BROADLY. IF -- IF THE DEFENSE SEEKS TO PRESENT EVIDENCE REGARDING ALTERNATIVE TECHNIQUES, MR. HARMON CAN, AT THE POINT WE DO IT, RAISE FOUNDATIONAL OBJECTIONS IF HE HAS THEM. NOW, I CAN IMAGINE, FOR EXAMPLE, THAT ONE OF THE ISSUES THAT'S IMPORTANT TO US HAS TO DO WITH THE FAILURE OF SCIENTIFIC CONTROLS FOR THESE EXPERIMENTS OR INADEQUATE SCIENTIFIC CONTROLS. IN ORDER TO EXPLAIN TO THE JURY WHAT IT MEANS FOR A CONTROL TO FAIL OR WHAT -- OR WHAT IT MEANS FOR THERE TO BE INADEQUATE CONTROLS, WE MIGHT WELL, FOR EXAMPLE, WANT TO SHOW THE JURY WHAT IN OUR OPINION A WELL-CONTROLLED EXPERIMENT WOULD LOOK LIKE. NOW, IF WE SEEK TO PRESENT THAT KIND OF EVIDENCE, I THINK IT WILL BE UP TO YOU WHETHER WE'VE LAID AN ADEQUATE FOUNDATION OF RELEVANCE, OF DIRECT RELEVANCE TO ALLOW IT TO COME IN. IF WE HAVE, YOU ADMIT IT. IF WE HAVEN'T, YOU DON'T ADMIT IT. BUT THAT'S A DETERMINATION TO BE MADE BY YOU ON A CASE-BY-CASE -- ON AN INCIDENT-BY-INCIDENT BASIS AS THE EVIDENCE ARISES. YOU KNOW, THIS ATTEMPTED PREEMPTIVE STRIKE IS PREMATURE AND IT SWEEPS WAY TOO -- WAY TOO BROADLY. OKAY. FINALLY, LET ME SAY A FEW THINGS REGARDING MR. HARMON'S COMMENTS ABOUT DR. MULLIS AND HIS SUGGESTION THAT HE SHOULD BE ALLOWED FREE INQUIRY INTO PERSONAL LIFE-STYLE AND -- AND DRUG USE AND OTHER SUCH ISSUES OF DEFENDANT'S EXPERTS. HIS POSITION SEEMS TO BE THAT IF WE'RE ALLOWED TO QUESTION HIS EXPERTS ABOUT THE OPINIONS OF OTHER SCIENTISTS SUCH AS DR. MULLIS, THEN HE'S ENTITLED TO PRESENT EVIDENCE CONCERNING THOSE OTHER SCIENTISTS WITH REGARD TO LIFE-STYLE AND CHARACTER AND WITH REGARD TO THEIR OPINIONS ON UNRELATED SCIENTIFIC MATTERS AND EVEN ON SOCIAL ISSUES AS REASONS TO DISREGARD THEIR OPINION. NOW, OUR POSITION IS THAT THIS SHOULD NOT BE ALLOWED AND THERE ARE THREE REASONS FOR THIS. THE FIRST REASON IS THAT IT'S COMPLETELY IRRELEVANT. WE'RE TALKING ABOUT SCIENTIFIC EXPERTS HERE. WE'RE NOT TALKING ABOUT PERCIPIENT WITNESSES WHOSE PERCEPTIONS OF A PARTICULAR MATTER MIGHT HAVE BEEN CLOUDED BY ALCOHOL CONSUMPTION OR DRUG USE. WE'RE TALKING ABOUT SCIENTISTS EXPRESSING AN OPINION ON SCIENTIFIC ISSUES. NOW, SCHOLARS HAVE FOR CENTURIES RECOGNIZED THAT YOU CAN NOT JUDGE THE MERITS OF A SCIENTIFIC ARGUMENT BASED ON THE MORAL CHARACTER OF THE PERSON ADVANCING THAT ARGUMENT. THIS IS FUNDAMENTAL. THIS IS ABSOLUTELY FUNDAMENTAL. SCIENTIFIC ARGUMENTS STAND AND FALL ON THEIR OWN MERITS AND ON THE QUALITY OF THE ANALYSIS THAT SUPPORTS THEM, NOT ON THE CHARACTER OR LIFE-STYLE OF THE SCIENTIST WHO'S MAKING THE ARGUMENT. WOULD THE NOBLE PRIZE COMMITTEE HAVE TAKEN BACK DR. MULLIS' NOBLE PRIZE HAD THEY SUSPECTED THAT HE HAD USED LSD WHEN HE LIVED IN BERKELEY? I DOUBT IT. I DON'T EVEN DOUBT IT. I -- ABSOLUTELY NOT. THERE ARE MANY EXAMPLES IF WE LOOK AT HISTORY OF SCIENTISTS WHOSE LIFE-STYLE MAY BE CALLED INTO QUESTION. IT'S WELL KNOWN, FOR EXAMPLE, THAT SIGMUND FREUD MADE EXTENSIVE USE OF COCAINE. THERE'S AN INTERESTING DISCUSSION AMONG PSYCHOLOGISTS AS TO WHETHER HIS COCAINE USE MIGHT HAVE INFLUENCED HIS DEVELOPMENT OF THE THEORY OF PSYCHOANALYSIS. BUT NOBODY THINKS FOR A MINUTE THAT WHETHER OR NOT FREUD USED COCAINE HAS ANY RELEVANCE AT ALL TO THE SCIENTIFIC MERITS OF THE THEORY OF PSYCHOANALYSIS. CHARACTER, LIFE-STYLE OF FREUD IS NOT RELEVANT. WITH REGARD TO -- WITH REGARD TO OTHER SCIENTIFIC POSITIONS TAKEN BY SCIENTISTS -- MR. HARMON SUGGESTS THAT -- THAT DR. MULLIS HAS TAKEN POSITIONS OUT OF THE SCIENTIFIC MAINSTREAM ON OTHER TOPICS. NOW, WE REGARD THIS AS ALSO IRRELEVANT AND SUBJECT TO 352 OBJECTIONS BECAUSE IT'S LIKELY TO TAKE US VERY FAR AFIELD. I DON'T THINK THAT WE WANT TO HAVE A MINI TRIAL WITHIN THIS TRIAL ABOUT THE CONNECTION BETWEEN HIV VIRUS AND AIDS. I REALLY DON'T THINK WE DO. BUT IN ANY CASE, IT'S IRRELEVANT. LET'S LOOK AT OTHER SCIENTISTS. FOR EXAMPLE, LINUS PAULING, FOR EXAMPLE, WHO IS ONE OF THE MOST RESPECTED BIOCHEMISTS EVER HAD OPINIONS OUT OF THE SCIENTIFIC MAINSTREAM WITH REGARD TO THE EFFECT OF VITAMIN C. IF HE CAME IN TO TESTIFY ABOUT ISSUES IN BIOCHEMISTRY, WOULD HE HAVE BEEN SUBJECT TO EXTENSIVE CROSS-EXAMINATION ABOUT HIS OPINIONS ON VITAMIN C WHEN -- WHEN THAT WAS -- THAT WAS UNCONNECTED WITH THE SCIENTIFIC TESTIMONY HE WAS OFFERING? CERTAINLY NOT. IT'S SIMPLY IRRELEVANT. WITH REGARD TO THESE OPINIONS ON SOCIAL ISSUES -- I MEAN, FOR GOODNESS SAKE, ALBERT EINSTEIN HAD A NUMBER OF OPINIONS ON SOCIAL ISSUES, MARRIAGE, SOCIALISM AND SO ON THAT PUT HIM OUTSIDE THE MAINSTREAM. DOES ANYBODY THINK THAT EINSTEIN'S OPINIONS ON THOSE ISSUES HAS ANY RELEVANCE TO THE SCIENTIFIC VALIDITY OF THE THEORY OF RELATIVITY? IT'S NONSENSE. OF COURSE NOT. THE ONLY RELEVANCE TO ANY OF THESE LIFE-STYLE, CHARACTER OR UNRELATED SCIENTIFIC ISSUE OPINIONS WOULD COME UP IF THERE ARE SOME DIRECT SHOWING THAT IT AFFECTS THE WITNESS' PERCEPTIONS OR ABILITY TO COMMUNICATE. SO, FOR EXAMPLE, IF -- IF -- IF MR. HARMON, YOU KNOW, HAD THE HUTZPUH TO ASK DR. MULLIS. WELL, LET ME REPHRASE THAT.

THE COURT: I DON'T FOR A MOMENT DOUBT MR. HARMON'S HUTZPAH TO DO ANYTHING.

MR. THOMPSON: WHEN -- WHEN MR. HARMON --

THE COURT: YOU'VE JUST CHALLENGED HIM LIKE --

MR. THOMPSON: WHEN MR. HARMON ASKS DR. -- ASKS DR. MULLIS, "ARE YOU ON LSD NOW AS YOU'RE TESTIFYING," YOU KNOW, IF HE WISHES TO PROPOUND THAT SORT OF QUESTION, I SEE THAT -- THAT AS POTENTIALLY RELEVANT. ON THE OTHER HAND, I THINK IT'S TERRIBLY PREJUDICIAL. SO IF HE WANTS TO -- IF HE WANTS TO ENGAGE IN INQUIRY OF DR. MULLIS ABOUT DRUG USE UNDER CIRCUMSTANCES WHERE THE QUESTIONS HAVE SOME RELEVANCE TO DR. MULLIS' ABILITY TO COMMUNICATE OR PERCEIVE SOMETHING AT ISSUE IN THIS CASE, THEN WE THINK HE CAN DO THAT, BUT WE ASK HE DO IT OUT OF THE HEARING OF THE JURY TO AVOID THE OBVIOUS PREJUDICE THAT WOULD COME -- THAT WOULD FLOW FROM SUCH QUESTIONS. BUT WITH REGARD -- BUT WITH REGARD TO THE SCIENTIFIC OPINIONS PER SE AND THE MERITS OF THE SCIENTIFIC OPINIONS, WHETHER HE USED -- WHETHER HE HAS USED DRUGS OR NOT OR WHAT HIS OPINION MIGHT BE ON OTHER ISSUES, IT IS COMPLETELY IRRELEVANT, IT IS COMPLETELY IRRELEVANT, POTENTIALLY HIGHLY PREJUDICIAL AND LIKELY TO LEAD US OFF ON A MERRY GOOSE CHASE THAT WOULD NEVER END.

THE COURT: DO YOU THINK HE CAN INQUIRE INTO DR. MULLIS'S ATTITUDES AND OPINIONS REGARDING THE CRIMINAL JUSTICE SYSTEM?

MR. THOMPSON: I THINK HE CAN INQUIRE -- I THINK HE CAN INQUIRE OF EXPERTS AS TO ANY MATTERS THAT ARE RELATED TO BIAS. SO IF HE HAD -- IF HE -- IF HE COULD MAKE A CASE OR SHOWING THAT A LINE OF INQUIRY IS RELEVANT TO BIAS -- WHETHER OR NOT SOMEBODY USES DRUGS AT A PARTICULAR POINT IN THEIR LIFE, I SEE NO CONNECTION BETWEEN THAT AND -- AND -- AND THEIR BIAS WITH REGARD TO EXPRESSING A SCIENTIFIC OPINION. IF THERE'S SOME SHOWING OF RELEVANCE TO BIAS, YES, HE CAN. BUT WE'D URGE YOU TO BE -- TO BE VERY CAREFUL AND CIRCUMSPECT ABOUT --

THE COURT: JUDICIOUS.

MR. THOMPSON: -- ABOUT -- JUDICIOUS IN ALLOWING SUCH -- SUCH INQUIRY.

NOW, THERE'S ONE STRAND OF THIS ARGUMENT THAT'S WORTH COMMENTING ON ALSO. I MEAN MR. HARMON TRIES TO SHOEHORN THE RELEVANCE OF THIS BY SUGGESTING THAT -- I THINK I READ HIS ARGUMENT AS SAYING THAT EVEN IF -- EVEN IF THESE LIFE-STYLE AND CHARACTER ISSUES AREN'T RELEVANT PER SE, HE SHOULD BE ABLE TO INQUIRE ABOUT THEM BECAUSE HIS EXPERTS THINK THAT THEY'RE RELEVANT. AND I BELIEVE THAT THE SPECIFIC STATEMENT THAT HE MADE IS THAT THERE ARE SCIENTISTS THAT HE INTENDS TO CALL WHO DISREGARD DR. MULLIS' OPINIONS BECAUSE OF WHAT THEY KNOW ABOUT HIS LIFE-STYLE AND CHARACTER. WELL, THIS I REGARD AS ASTOUNDING. THIS I THINK IS -- WELL, I CAN'T SERIOUSLY BELIEVE IT IN THE FIRST PLACE. I MEAN, WHO -- WHO -- I WANT TO KNOW WHO THESE PEOPLE ARE WHO SAY -- WHO ARE SCIENTISTS WHO SAY WE DISREGARD A SCIENTIFIC OPINION BECAUSE IT'S BEING ADVANCED BY SOMEBODY WHOSE -- WHOSE LIFE-STYLE AND CHARACTER WE DISAPPROVE OF. I MEAN, I WANT TO KNOW WHAT COLLEGE THEY WANT TO SO I CAN AVOID SENDING MY CHILDREN THERE. AND I VIEW THIS AS --

THE COURT: WELL, THE PROBLEM I'M HAVING WITH YOUR ARGUMENT RIGHT NOW IS, WHEN YOU LUMP TOGETHER LIFE-STYLE -- I AGREE WITH YOU LIFE-STYLE IS AN INQUIRY THAT IN THIS CONTEXT IS LIKELY, VERY LIKELY TO BE COMPLETELY IRRELEVANT.

MR. THOMPSON: YES.

THE COURT: WHETHER OR NOT SOMEBODY LIKES TO SURF OR THEY WENT TO CAL IN THE 60'S AND 70'S AND DID THE NORMAL THING CAL STUDENTS DO --

MR. THOMPSON: YES.

THE COURT: -- WHO CARES. BUT WHEN YOU TALK ABOUT CHARACTER, WHEN YOU LUMP LIFE-STYLE AND CHARACTER TOGETHER, THEN YOU'VE GOT A DIFFERENT INQUIRY. IF YOU'RE TALKING ABOUT CHARACTER IN THE SCIENTIFIC COMMUNITY, INTEGRITY IN SCIENTIFIC RESEARCH, INTEGRITY OF THE PROCESSES THAT THEY USE, THAT'S A DIFFERENT INQUIRY. SO I -- IF YOU'RE LUMPING THEM TOGETHER, YOU'RE CREATING PROBLEMS FOR ME. BECAUSE SCIENTISTS DO HAVE REPUTATIONS FOR THE QUALITY OF THEIR RESEARCH. WE DO CONSTANTLY HEAR ABOUT FRAUD IN SCIENTIFIC PUBLICATIONS AND FABRICATION OF RESULTS, THAT SORT OF THING. I MEAN, DO YOU THINK THAT'S A LEGITIMATE INQUIRY?

MR. THOMPSON: I THINK THAT THAT SURELY WOULD BE A LEGITIMATE INQUIRY IF THERE WAS ANY RECORD AT ALL THAT IT OCCURRED. I MEAN, THERE'S ABSOLUTELY NO SHOWING THAT THAT'S RELEVANT TO ANYBODY HERE.

THE COURT: BUT DO YOU AGREE WE SHOULD SEPARATE YOUR COMMENTS ABOUT LIFE-STYLE AND CHARACTER? BECAUSE I'M TALKING ABOUT CHARACTER IN THE SCIENTIFIC COMMUNITY.

MR. THOMPSON: WELL, IF BY CHARACTER WE MEAN SCIENTIFIC INTEGRITY, THAT I SEE AS RELEVANT POTENTIALLY, ALTHOUGH AGAIN, WE'D WANT YOU TO BE JUDICIOUS ABOUT HOW IT WAS PURSUED. BUT IF WE MEAN CHARACTER, FOR EXAMPLE, WHETHER OR NOT A PERSON IS KIND TO HIS -- WHETHER HE'S KIND TO HIS SPOUSE, WHETHER HE BEATS HIS DOG, WHETHER HE -- WHETHER HE VIOLATES TRAFFIC LAWS, IF THAT'S WHAT WE MEAN BY CHARACTER, THEN I THINK IT'S -- IT'S IRRELEVANT TO THE SCIENTIFIC MERITS. ALL RIGHT. SO I MEAN, IF WE DEFINE CHARACTER IN THE LIMITED WAY OF SCIENTIFIC INTEGRITY, SOMETHING THAT WOULD GO DIRECTLY TO VERACITY OF THE SCIENTIFIC OPINIONS, THEN THAT WOULD BE A SUITABLE AREA OF INQUIRY.

THE COURT: OKAY.

MR. THOMPSON: BUT, YOU KNOW, AGAIN, ONE WOULD NEED TO BE VERY CAREFUL ABOUT --

THE COURT: I JUST WANT TO MAKE SURE WE'RE NOT LUMPING THOSE TWO TOGETHER.

MR. THOMPSON: ALL RIGHT. ALL RIGHT. NOW, THERE'S A SECOND -- BEYOND THE IRRELEVANCE OF THIS INQUIRY, THERE'S A SECOND REASON TO AVOID IT. AND THAT IS THAT IT'S -- THAT ALLOWING INQUIRY INTO SUCH MATTERS, THE MATTERS THAT MR. HARMON PROPOSES IS VERY INTIMIDATING TO THE DEFENSE WITNESSES. NOT JUST TO DR. MULLIS, BUT TO ALL OF THE WITNESSES THAT WE MIGHT CALL. IN THIS CASE, WE'RE DEALING WITH VERY COMPLEX SCIENTIFIC ISSUES. IT'S NOT SIMPLE, AND IF WE'RE GOING TO GET TO THE BOTTOM OF THESE ISSUES, THE SCIENTISTS MUST KNOW THAT THEY CAN COME INTO COURT AND TELL WHAT THEY KNOW WITHOUT HAVING THEIR PERSONAL LIVES SCRUTINIZED AND THEIR GOOD NAMES DRAGGED THROUGH THE MUD. AND I THINK THE NET EFFECT OF EVEN THE FILING OF THIS MOTION IS TO HAVE A CHILLING EFFECT ON SCIENTISTS WHO MIGHT POTENTIALLY TESTIFY TO AN OPINION THAT MR. HARMON FINDS INCONVENIENT. THIS MOTION WITH ITS DISPARAGING COMMENTS ABOUT MULLIS IS PARTICULARLY DISTURBING TO US BECAUSE WE VIEW IT AS PART OF A CONTINUING COURSE OF CONDUCT BY MR. HARMON DESIGNED TO INTIMIDATE SCIENTISTS WHO EXPRESS THE VIEWS THAT HE DOESN'T LIKE IN THE COURTROOM TO SILENCE THEM AND PREVENT THEM OR INTIMIDATE THEM FROM COMING TO COURT. THERE HAVE BEEN A NUMBER -- MR. HARMON IS WELL KNOWN IN THE SCIENTIFIC COMMUNITY. HE'S WELL KNOWN FOR EXACTLY THIS SORT OF THING. THERE'S BEEN EXTENSIVE DISCUSSION BOTH IN SCIENTIFIC AND LEGAL PUBLICATIONS OF MR. HARMON'S EFFORTS TO HARASS AND INTIMIDATE THOSE SCIENTISTS WHOSE TESTIMONY HE DISLIKES OR DISAGREES WITH.

ONE EPISODE THAT WAS WIDELY PUBLICIZED, HE THREATENED TO HAVE ONE SCIENTIST WHO WAS TESTIFYING AGAINST HIM THROWN IN JAIL FOR AN EXPIRED DRIVER'S LICENSE. HE HAS ENGAGED IN POISON PEN LETTER WRITING CAMPAIGNS AGAINST SCIENTISTS WHOSE TESTIMONY HE DISAPPROVES OF, INCLUDING ATTEMPTING TO INTERFERE WITH THE PEER REVIEW PROCESS BY SENDING DISPARAGING INFORMATION ABOUT SCIENTISTS WHOSE TESTIMONY HE DISLIKES TO JOURNAL EDITORS. WE CAN DOCUMENT THIS AND WE WILL IN FACT PROVIDE YOU IN CHAMBERS COPIES OF THESE DOCUMENTS. HE HAS ALSO CIRCULATED EMBARRASSING PERSONAL INFORMATION ABOUT SCIENTISTS WHO HE DISLIKES TO THEIR COLLEAGUES WITHIN THE SCIENTIFIC COMMUNITY. I THINK A RECENT EPISODE, AN EPISODE THAT OCCURRED LAST FALL IN SACRAMENTO I THINK CAPTURES THE TONE AND TENOR OF WHAT GOES ON HERE. AFTER THE PUBLICATION IN NATURE OF AN ARTICLE BY ERIC LANDER AND BRUCE BUDOWLE --

THE COURT: WELL, MR. THOMPSON, BEFORE YOU GO TOO FAR -- TOO MUCH FURTHER DOWN THIS PARTICULAR ROAD, THE ISSUE THAT I HAVE TO DECIDE HERE IS THE SCOPE OF CROSS-EXAMINATION OF EXPERTS WHO TESTIFY HERE, AND THE CHARACTER AND PRACTICES OF ATTORNEYS IN OTHER CASES AND ON OTHER ISSUES DOESN'T STRIKE ME AS BEING NECESSARY FOR ME TO KNOW TO RULE ON THIS MOTION.

MR. THOMPSON: NO. I -- I DISAGREE, YOUR HONOR. I THINK IN ORDER TO UNDERSTAND -- IN ORDER TO UNDERSTAND THE MEANING TO OUR EXPERTS AND WHY THEY CONSIDER THIS PARTICULAR ACTION BY MR. HARMON SO INTIMIDATING, IT'S IMPORTANT TO UNDERSTAND HIS REPUTATION IN THE SCIENTIFIC COMMUNITY.

THE COURT: WELL, MR. THOMPSON, PERHAPS I DIDN'T CONVEY THE IMPRESSION STRONG ENOUGH. BUT WHEN I INDICATED TO YOU THAT I OBSERVED THIS TO BE A PREEMPTIVE STRIKE AND TO BE A DESIGN TO SENSITIZE THE TRIAL COURT AS TO ISSUES THAT WILL ARISE, I THOUGHT I PUT IN CONTEXT HOW I VIEW THIS PARTICULAR MOTION.

MR. THOMPSON: YEAH.

THE COURT: I -- DOES THAT -- IS THAT CLEAR TO YOU?

MR. THOMPSON: YES. I UNDERSTAND WHAT YOU'RE SAYING, YOUR HONOR. ON THE OTHER HAND, WHAT I WANT YOU TO UNDERSTAND IS THAT --

THE COURT: BUT SEE, WE HAVE THE SAME THING. IF YOU'RE CRITICIZING ONE SIDE FOR DISPARAGING OTHER PEOPLE IN CONDUCTING CAMPAIGNS OF LIBEL AND SLANDER, THEN TO COME IN AND START DOING THE SAME SORT OF THING, THEN THE ARGUMENT LOSES ITS POWER; WOULDN'T YOU SAY?

MR. THOMPSON: WELL, CERTAINLY. CERTAINLY. BUT WE'LL DOCUMENT -- WE'LL DOCUMENT WHAT WE'RE SAYING HERE.

THE COURT: SO WHY DON'T WE MOVE ON. LET'S TALK ABOUT THE LEGAL ISSUES. I UNDERSTAND THE SOCIAL IMPLICATIONS. I UNDERSTAND THE PRACTICAL IMPLICATIONS.

MR. THOMPSON: WELL, UNDERSTAND WHAT WE'RE ASKING FOR. WE'RE ASKING FOR AN IMMEDIATE RULING FROM YOU THAT THIS AREA OF INQUIRY BE OFF LIMITS, INQUIRY INTO PEOPLE'S PERSONAL HABITS, LIFE-STYLE AND SO ON --

THE COURT: BUT YOU ALSO JUST TOLD ME THAT THIS IS PREMATURE. IS IT PREMATURE OR DO YOU WANT ME TO RULE ABOUT IT TODAY?

MR. THOMPSON: WELL, WE WANTED -- WE WANT A RULING RIGHT NOW THAT THESE LIFE-STYLE INQUIRIES ARE GOING TO BE OFF LIMITS AND THAT ANY INQUIRY INTO PERSONAL BACKGROUND WILL BE STRICTLY LIMITED TO DIRECT RELEVANCE. WE'D ALSO LIKE A RULING FROM YOU THAT ANY FUTURE MOTIONS OF THIS TYPE BE FILED UNDER SEAL AND NOT -- AND NOT RELEASED TO THE PUBLIC. THE VERY FILING OF THIS MOTION IS AN INTIMIDATING ACT DESIGNED TO INTIMIDATE AND HAVING HAD THAT EFFECT. WHAT MR. HARMON IS SAYING TO THE SCIENTIFIC COMMUNITY IS, "YOU KNOW WHO I AM, YOU KNOW WHAT I'VE DONE TO OTHER SCIENTISTS, AND IF YOU COME INTO THIS COURT, I HAVE A DANGEROUS NEW WEAPON AT MY COMMAND. NOT ONLY WILL I BE ABLE TO DISPARAGE YOU IN PUBLIC, BUT I'LL BE ABLE TO INQUIRE INTO YOUR PRIVATE PERSONAL LIFE AND PRESENT THE RESULTS OF WHATEVER INQUIRY I DO IN FRONT OF A NATIONAL TELEVISION AUDIENCE." THAT IS INTIMIDATING, YOUR HONOR. WE'RE TALKING ABOUT -- THESE ARE NOT PERCIPIENT WITNESSES WHO ARE SUBJECT TO SUBPOENA. THEY'RE JUST SCIENTISTS WHO -- THEY DON'T HAVE TO COME HELP US OUT BY TESTIFYING. THEY DON'T HAVE TO DO THAT. SPEAKING -- AS A COLLEGE PROFESSOR MYSELF, I CAN TELL YOU, MY COLLEAGUES FIND THIS VERY INTIMIDATING. THEY FIND IT FRIGHTENING. IT'S DIFFICULT TO PERSUADE THEM TO COME IN AND PRESENT THEIR VIEWS IF THEY'RE AFRAID THAT THEY'LL BE SUBJECT TO THIS KIND OF ATTACK. SO WE'RE ASKING -- WE'RE ASKING YOU FOR A RULING NOW THAT WILL PROVIDE REASSURANCE TO OUR EXPERTS THAT THEY'RE NOT GOING TO HAVE THEIR GOOD NAMES DRAGGED THROUGH THE MUD BY THIS KIND OF SCRUTINY. AND WE WANT A RULING THAT HOLDS THAT ANY INQUIRY ALONG THESE LINES WILL BE STRICTLY LIMITED AND WE WANT SOME PROTECTIVE MEASURES TO PREVENT FUTURE MOTIONS OF THIS TYPE FROM BEING DISTRIBUTED TO THE PRESS. THAT'S WHAT WE'RE ASKING.

THE COURT: ALL RIGHT. THANK YOU, MR. THOMPSON. MR. HARMON, ANY BRIEF RESPONSE?

MR. HARMON: VERY BRIEF, YOUR HONOR.

WE SURE FLUSHED OUT A MOUTHFUL WITH JUST A LEGAL BRIEF ADDRESSING A VERY NARROW ISSUE. AT TIMES, I WASN'T SURE WHETHER PROFESSOR THOMPSON WAS RESPONDING TO MR. CLARKE'S PRESENTATION OR MINE AND FOR THE VERY SIMPLE PROPOSITION THAT THEY DON'T USE THAT WORD "RELIABILITY" THE WAY THE CASES USE IT. AND WHEN YOU CITE A KELLY-FRYE PUBLISHED OPINION TALKING ABOUT RELIABILITY, THAT'S IN THE ADMISSIBILITY CONTEXT. I AM PLEASED THAT THE DEFENSE WOULD BE HAPPY TO SHOW AN EXPERIMENT THAT MIGHT SUGGEST WHY OUR CONTROLS DIDN'T WORK TO SHOW WHAT ADEQUATE CONTROLS MIGHT BE. IT WOULD BE MUCH MORE MEANINGFUL AND IT WOULD BE MUCH MORE HELPFUL TO THE TRIER OF FACT IF THEY PUBLICLY OPENLY RETESTED EVIDENCE IN THIS CASE FOR THE FIRST TIME. I AM HAPPY THAT DR. MULLIS MIGHT BE CROSS-EXAMINED ON WHETHER HE'S CONSUMED LSD ON THE DAY OF HIS TESTIMONY. PERHAPS IT WOULD BE IN THE BEST INTEREST OF THE DEFENSE IF THEY REALLY ARE GOING TO CALL HIM. I THINK THAT'S REALLY IN DOUBT. OR PERHAPS THEY GET HIM IN A DETOX CENTER FOR A PERIOD OF TIME SO THAT WHEN HE TESTIFIES, I WON'T BE ABLE TO ASK HIM THAT.

MR. NEUFELD: YOUR HONOR, THIS IS MORE OF THE SAME, YOUR HONOR.

THE COURT: WAIT, WAIT, WAIT, WAIT.

MR. HARMON: THANKS, JUDGE.

THE COURT: WAIT, WAIT, WAIT. MR. HARMON, I REALLY DON'T NEED TO HEAR THAT SORT OF THING.

MR. HARMON: THANK YOU, YOUR HONOR. I APPRECIATE THAT HIS OPINIONS DEPEND ON THE QUALITY OF HIS EXPERIMENTS, AND I INVITE HIM PUBLICLY NOT TO DO AN EXPERIMENT, BUT TO RETEST THE AMPLE REMAINING EVIDENCE IN THIS CASE SO THAT HE CAN ADDRESS A SCIENTIFIC REALITY RATHER THAN SOME OPINION THAT'S BASED ON PARTIAL INFORMATION THAT'S -- I'VE ALREADY WRITTEN TO HIM AND INVITED HIM TO DO THAT. I HAVE NOT RECEIVED A RESPONSE. THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. ALL RIGHT. ANY OTHER ISSUES YOU WANT TO ADDRESS BEFORE WE ADJOURN FOR THE AFTERNOON?

MR. BLASIER: YOUR HONOR, WE HAVE ONE FURTHER ISSUE REGARDING A STIPULATION. I HAVE NOT TALKED TO MR. HARMON TODAY ABOUT WHETHER --

THE COURT: EXCUSE ME. LET ME JUST -- EXCUSE ME, MR. BLASIER. LET ME JUST INQUIRE OF THE COURT REPORTER. HOW ARE YOU DOING?

THE COURT REPORTER: FINE, YOUR HONOR.

THE COURT: ALL RIGHT. MR. BLASIER.

MR. BLASIER: YES, YOUR HONOR.

THERE'S AN ISSUE PERTAINING TO THREE ITEMS THAT WERE PROVIDED TO THE DEFENSE BACK IN OCTOBER WHICH HAVE BEEN RETURNED TO THE PROSECUTION SAVE ONE HALF OF ONE SWATCH FROM EACH ITEM. AND MR. HARMON HAS PROPOSED A STIPULATION AS TO HOW THAT WOULD BE DEALT WITH IN FRONT OF THE JURY. WE HAVE PROPOSED A COUNTER STIPULATION. I HAVE NOT HEARD FROM MR. HARMON AS TO WHETHER OUR PROPOSAL IS ACCEPTABLE. IF IT'S ACCEPTABLE, THEN THE ISSUE IS RESOLVED. IF NOT, THEN I THINK WE NEED TO DISCUSS IT.

MR. HARMON: IT'S NOT -- CAN WE DISCUSS IT NOW?

THE COURT: SURE.

MR. BLASIER: WELL, THE ISSUE, AS YOUR HONOR MAY BE AWARE, BY VIRTUE --

MR. HARMON: DO I GET TO GO FIRST SINCE IT'S MY PROPOSAL, YOUR HONOR?

THE COURT: WELL, MR. BLASIER IS STANDING UP. SO LET'S JUST SAVE TIME. I DON'T THINK I NEED TO HEAR A LOT ON THIS.

MR. BLASIER: NOW, IT'S REALLY ACTUALLY A FAIRLY NARROW ISSUE. THE STIPULATION THAT MR. HARMON WANTS TO PRESENT TO THE JURY IS TO THE EFFECT THAT WE POSSESSED PART OF THESE ITEMS FOR A PERIOD OF TIME AND THAT THEY WERE CONSUMED IN TESTING BY THE DEFENSE.

NOW, THE PURPOSE OF HAVING ANY KIND OF STIPULATION AT ALL IS TO ALLOW THE PROSECUTION, WHICH THEY'RE ENTITLED TO DO, TO ACCOUNT FOR THE EVIDENCE THAT THEY MIGHT PRESENT TO THE JURY. THE EVIDENCE THAT THEY MIGHT PRESENT TO THE JURY AS TO THESE THREE SPECIFIC ITEMS IS IN THE SAME CONDITION IT WAS WHEN THEY GAVE IT TO US WITH THE EXCEPTION THAT THERE'S ONE HALF OF ONE SWATCH MISSING. WE ACCEPT THE FACT THAT THEY ARE ENTITLED TO EXPLAIN TO THE JURY THAT THERE IS ONE HALF OF ONE SWATCH MISSING BECAUSE IT WAS GIVEN TO THE DEFENSE. THAT SOLVES ANY PROBLEM THAT THEY MIGHT HAVE OF ACCOUNTING FOR THAT EVIDENCE IN FRONT OF THE -- IN FRONT OF THE JURY. WHAT WE OBJECT TO IS THAT THE JURY BE PROVIDED WITH ANY ADDITIONAL INFORMATION ABOUT WHAT WE MIGHT OR MIGHT NOT HAVE DONE WITH THOSE PIECES OF EVIDENCE. THAT DOES NOTHING TO FURTHER THEIR REQUIREMENT TO EXPLAIN WHY THIS LOOKS A LITTLE DIFFERENT THAN IT WAS AT SOME POINT IN TIME EARLIER THAN THAT. MR. HARMON PROPOSES THAT THE JURY BE TOLD WE USE THESE UP IN TESTING, AND THE DANGER OF THIS IS SET FORTH IN HIS COUNTER STIPULATION, WHICH WE CLEARLY REJECT, WHERE HE WANTS TO GO INTO, WELL, YOU GAVE IT TO THIS DOCTOR ON THIS DATE AND HE DIDN'T DO ANYTHING. THEN YOU GAVE IT TO THIS DOCTOR ON A SECOND DATE AND HE DID SOMETHING TO IT.

AND HE POINTS OUT IN HIS STIPULATION THAT THE CLEAR IMPLICATION OF THIS IS THAT WE WERE SHOPPING AROUND FOR EXPERTS, WE COULDN'T FIND ANYBODY THAT WOULD GIVE US RESULTS THAT WE WANTED, AND THE JURY IS GOING TO BE PRESENTED WITH THAT AS A LOGICAL INFERENCE FROM THAT INFORMATION. THAT'S CLEARLY I THINK IMPROPER ON THEIR PART WHEN THE ONLY PROBLEM THAT THEY HAVE IS ACCOUNTING FOR THE CONDITION OF THE EVIDENCE AS IT'S PRESENTED TO THE JURY. THOSE ARE IMPROPER INFERENCES. THEY AREN'T CORRECT INFERENCES. THERE'S ALL SORTS OF OTHER INFERENCES THAT YOU CAN DRAW FROM THE FACT THAT WE MAY HAVE USED SOMETHING IN TESTING SUCH AS WE WANT TO IMPEACH THEIR WITNESSES WITH OUR RESULTS, THAT WE GOT INCONCLUSIVE RESULTS, WE USED UNCONVENTIONAL TESTING. THERE'S ALL SORTS OF THINGS THAT COULD HAVE BEEN HAPPENED. IF WE CHOOSE TO PRESENT IT IN INFORMATION, OBVIOUSLY IT WILL BE PROVIDED TO THEM AND THEY'LL HAVE A RIGHT TO DEAL WITH IT. THE ONLY ISSUE PERTAINING TO THIS EVIDENCE IS EXPLAINING TO THE JURY THAT ONE HALF OF ONE SWATCH IS MISSING. WE HAVE NO OBJECTION TO THEM BEING TOLD IT'S NOT THERE BECAUSE IT WAS GIVEN TO US. THERE IS NOTHING ABOUT THAT REMAINING SWATCH OR REMAINING HALF SWATCH THAT NEEDS TO BE EXPLAINED TO THE JURY. IT'S NOT AS IF WE DUSTED IT WITH FINGERPRINT POWDER AND IT'S GOT POWDER ALL OVER IT AND THAT'S GOING TO BE APPARENT TO THE JURY IN WHICH CASE THEY WOULD HAVE TO EXPLAIN WHY THERE'S FINGERPRINT POWDER ALL OVER IT. THERE'S NOTHING UNIQUE ABOUT THAT ONE-HALF SWATCH THAT REQUIRES ANY EXPLANATION OTHER THAN THE HALF THEY DON'T SEE WAS GIVEN TO US, AND WE ARE PREPARED TO STIPULATE TO THAT. I THINK THAT IS A REASONABLE STIPULATION. IF THE PROSECUTION IS UNWILLING TO STIPULATE TO THAT, THEN WE WOULD ASK FOR AN ORDER FROM THE COURT THAT THAT BE THE LIMIT OF WHAT THE JURY IS TOLD ABOUT THESE ITEMS. CHAIN OF CUSTODY IS A NON ISSUE IN MY VIEW. WE WOULD NOT ONLY BE UNETHICAL, BUT WE WOULD BE FOOLISH IF WE RAISED ARGUMENTS ABOUT THE CHAIN OF CUSTODY OF AN ITEM DURING A PERIOD OF TIME WHEN WE HAD IT. NOW, WE WON'T DO THAT. I STATED IN MY LETTER BRIEF THAT WE WILL STIPULATE WE'RE NOT CHALLENGING THAT. WE'RE NOT GOING TO RAISE IT. WE'RE NOT GOING TO ASK ANY QUESTIONS ABOUT IT. IT IS A NON ISSUE, AND WE OBJECT TO THE PROPOSAL OF THE PROSECUTION TRYING TO USE THAT IN SOME NEGATIVE WAY AGAINST THE DEFENSE. AND SO I AGAIN OFFER THE STIPULATION THAT I SET FORTH IN MY LETTER TO MR. HARMON AND IN THE LETTER BRIEF, AND IF THAT'S NOT ACCEPTABLE, THEN I WOULD ASK THE COURT TO BE VERY LIMITING IN TERMS OF WHAT THE JURY IS TOLD ABOUT WHAT WE MAY OR MAY NOT DONE WITH EVIDENCE THAT WAS GIVEN TO US. FINALLY, I WOULD POINT OUT THAT THE COURT'S ORDER OF FEBRUARY 8TH DID NOT APPLY TO THESE PARTICULAR ITEMS. THIS HAPPENED LONG BEFORE THE ITEMS ON FEBRUARY 8TH. AND AS I INDICATED IN MY BRIEF, THE -- I WANTED TO RESERVE THE RIGHT TO RAISE THIS ISSUE AGAIN AS TO THE LANGUAGE THAT YOU HAD IN THE ORDER AS TO EXACTLY WHAT THE JURY WOULD BE TOLD. AND FINALLY, WE HAVE AN ADDITIONAL ISSUE THAT WE WOULD LIKE TO RAISE IN CHAMBERS THAT RELATES TO OTHER MATERIAL IN THE PAPERWORK SUBMITTED BY MR. HARMON AFTER WE DECIDE THIS PARTICULAR ISSUE.

THE COURT: ALL RIGHT. MR. HARMON.

MR. HARMON: WORKING BACKWARDS OR FROM LAST TO FIRST, THE FACT THAT YOUR ORDER DIDN'T ADDRESS THIS WAS MERELY BECAUSE IT WASN'T SOUGHT AT THE TIME THAT THE ITEMS WERE PROVIDED. I BELIEVE YOUR ORDER WAS LAWFUL. THE FIRST STIPULATION, THE STRAIGHTFORWARD ONE WAS COUCHED EXACTLY IN TERMS OF THE ORDER THAT YOU ISSUED ON FEBRUARY 8TH. SO THE FACT THAT IT DOESN'T APPLY TO IT, WE HAVE DISCUSSED IN ONE OF THESE MANY IN CHAMBERS DISCUSSIONS THIS VERY ISSUE AND YOU HAVE TOLD US THAT IT DOES APPLY TO IT.

SO -- NOW, HERE'S WHERE THE REAL PROBLEM BEGINS. I MEAN, WE'RE GOING TO TELL THE JURY IT'S MISSING? IT'S NOT MISSING. THOSE STIPULATIONS TELL YOU WHAT HAPPENED TO IT. THEY CONSUMED IT IN TESTING FOR THE PRESENCE OF EDTA. SO IT'S NOT MISSING. IT'S GONE. IT WAS CONSUMED. I NEED TO READ YOU SOMETHING, YOUR HONOR, THAT'S HAPPENED. THESE LETTERS PROVIDE INTERESTING CHRONICLES OF EVENTS AND PERHAPS SOME PEOPLE WOULD WISH THESE WERE DONE WITH DISAPPEARING INK. FEBRUARY 6TH, JUST BEFORE THE ORDER IN QUESTION, A LETTER SIGNED BY MR. BLASIER: "NOW THAT WE HAVE MADE OUR REQUEST TO EXAMINE THE EVIDENCE, THE PROSECUTION WANTS TO DEPRIVE US OF ACCESS TO THAT EVIDENCE BY SAYING THAT THEY INTEND TO HAVE -- INTEND TO DO EXTENSIVE ADDITIONAL TESTING ON MOST OF THE CRITICAL EVIDENCE, INCLUDING TESTING TO DETERMINE IF EDTA IS PRESENT ON MANY OF THE SAMPLES. "TO OUR KNOWLEDGE, THERE IS NO TECHNIQUE CURRENTLY IN USE FOR TESTING FOR THE PRESENCE OR ABSENCE OF EDTA AND FORENSIC SAMPLES."

NOW, THAT'S WHAT WAS WRITTEN ON MR. COCHRAN'S LETTERHEAD AND SIGNED BY MR. BLASIER ON FEBRUARY 6TH. THE PROBLEM I HAVE WITH THAT AND I SUGGEST YOU SHOULD HAVE WITH THAT IS, WE KNOW THAT THE TESTING ON THOSE SWATCHES WAS DONE ON JANUARY 8TH. AND HOW DO WE KNOW THAT? WELL, THE REASON I SOUGHT THOSE SAMPLES BACK EMPTY OR FULL IS BECAUSE FORENSIC SCIENTISTS DOCUMENT WHEN THEY OPEN AND CLOSE, DATES, INITIALS. AND WHAT WE RECEIVED BACK OTHER THAN THE SWATCH CUT IN HALF, THE BLOOD-STAINED SWATCH CUT IN HALF HAVE THE NAMES AND THE DATES OF THE HISTORY OF THOSE SAMPLES. SO SHOULD THE DEFENSE NOT ACCEPT THE VERY STRAIGHTFORWARD STIPULATION THAT IS TOTALLY CONSISTENT SIMPLY WITH THE CHRONOLOGY OF WHEN THEY PICKED IT UP, WHEN THEY RETURNED IT AND THE FACT THAT IT WAS CONSUMED IN TESTING AS YOU DECLARED WE WOULD BE ENTITLED TO PERSPECTIVELY FROM FEBRUARY 8TH, IF THEY CHOOSE TO REJECT THAT, THAT'S FINE. WE WILL INTRODUCE THOSE AND WE WILL DEMONSTRATE THAT THOSE ITEMS -- THOSE NAMES AND DATES WERE NOT ON THERE WHEN THEY WERE TURNED OVER TO THE DEFENSE IN OCTOBER AND THAT THEY WERE ON THERE WHEN WE GOT BACK ON MARCH 10TH. AND WE CAN SUBPOENA MR. RAGEL TO DESCRIBE WHERE HE TOOK THOSE THINGS.

NOW, I THOUGHT THIS WAS VERY STRAIGHTFORWARD. THE DEFENSE WANTS TO PRETEND THAT IT'S MISSING WHEN IN FACT IT'S BEEN CONSUMED. AND WE SIMPLY WANT TO ACCOUNT FOR THE FACT THAT IT WAS CONSUMED BY THEM IN TESTING. NOW, ONE MIGHT SAY, WELL, WHY DON'T WE JUST SAY "CONSUMED." WELL, THE JURORS MIGHT THINK THEY ATE THEM. SO IT'S VERY STRAIGHTFORWARD, YOUR HONOR. AND I UNDERSTAND THE FACT THAT THEY THOUGHT THIS WOULD BE DONE IN SECRET, BUT THE REALITY WAS, IT'S NOT A SECRET ANYMORE, JUDGE, AND WE WANT A VERY STRAIGHTFORWARD STIPULATION IN THE LIMITED MANNER THAT WE PROPOSE AND WE'LL MOVE ON WITH BUSINESS. OTHERWISE, WE'LL DO IT A LITTLE BIT -- WITH A LITTLE BIT MORE DIFFICULTY WITH MR. RAGEL AND GREG MATHESON AND GARY SIMS, BUT WE'LL DO IT THAT WAY. THANKS, JUDGE.

THE COURT: ALL RIGHT.

THE COURT REPORTER: YOUR HONOR, I NEED TO CHANGE PAPER.

THE COURT: ALL RIGHT.

(BRIEF PAUSE.)

MR. BLASIER: YOUR HONOR, AGAIN, WE HAVE THREATS FROM MR. HARMON ABOUT CALLING WITNESSES FOR A VERY SIMPLE ISSUE; AND THAT IS ACCOUNTING FOR HALF OF A SWATCH. WE'RE NOT SAYING IT'S MISSING. WE'RE NOT SAYING WE ATE IT. WE'RE SAYING IT WAS GIVEN TO US, TELL THE JURY THAT IT'S REAL EASY. IT DOESN'T TAKE A ROCKET SCIENTIST TO GO ANY FURTHER THAN THAT. MR. HARMON OBVIOUSLY WANTS TO DRAW ALL SORTS OF NEGATIVE INFERENCES FROM THE FACT THAT WE DID SOME TESTING REGARDLESS OF WHAT KIND OF TESTING WE DID. WHETHER WE LIKED THE RESULTS OR NOT, WHETHER WE'RE GOING TO USE THE RESULTS OR NOT IS IRRELEVANT TO THE ISSUE OF THEIR BEING REQUIRED TO EXPLAIN THERE'S A HALF A SWATCH MISSING. THAT'S REAL CLEAR. AND I RESENT THE NOTION THAT HE'S NOW THREATENING OTHER PEOPLE TO CALL, TO BRING IN TO RAISE ALL THESE NEGATIVE INFERENCES THAT ARE TOTALLY IMPROPER.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. I SEE IT'S GOING TO BE NECESSARY FOR THE COURT TO DRAFT AN INSTRUCTION TO THE JURY RATHER THAN EXPECTING THE PARTIES IN THIS CASE TO STIPULATE TO A RATHER SIMPLE FACTUAL MATTER.

MS. LEWIS: YOUR HONOR, MAY WE APPROACH OFF THE RECORD? YOU HAD ASKED WHETHER THERE'S ANYTHING TO BE RAISED TODAY. WE HAD THOUGHT THERE WAS.

THE COURT: WHAT'S THAT OTHER MATTER? IS THIS THE VIDEOTAPE WE WERE TALKING ABOUT?

MS. LEWIS: THE DEFENSE HAD COMPLAINED ABOUT THE RECENT DISCOVERY PROVIDED THEM ON VIDEOTAPE AND ON -- VARIOUS OTHER DOCUMENTARY MATERIALS. I DON'T KNOW IF THE COURT WANTED TO TAKE A RECESS OR WHAT.

THE COURT: YEAH. WE'LL TAKE A RECESS FOR ABOUT 15. ALL RIGHT. LET'S TAKE A 15-MINUTE RECESS.

(RECESS.)

THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS AGAIN PRESENT WITH HIS SECOND SET OF ATTORNEYS. THE PEOPLE ARE READY WITH THEIR THIRD SET OF ATTORNEYS.

MS. LEWIS: THIRD STRING, YOUR HONOR.

THE COURT: ALL RIGHT. THERE WAS ONE OTHER DISCOVERY ISSUE -- JUST AS TO THE OTHER TWO ISSUES, THE COURT ANTICIPATES ISSUING A WRITTEN RULING REGARDING THE KELLY ISSUE REGARDING THE SCOPE OF CROSS-EXAMINATION ISSUE. AND WE HAD A DISCOVERY ISSUE ALSO TO TAKE UP. AND I ANTICIPATE FILING THAT MONDAY.

MR. SCHECK: YES, AND --

THE COURT: AS TO BOTH.

MR. SCHECK: BEFORE WE FINISH, WE CAN HAVE SOME LIMITED PRESENTATIONS IN CHAMBERS IN CAMERA? THERE WAS -- AT CERTAIN POINTS IN THE ARGUMENT WE MADE REFERENCE TO THINGS THAT WE WANT TO PRESENT TO THE COURT IN THAT FASHION.

THE COURT: YES.

MR. SCHECK: SHOULD I PROCEED WITH THE TAPE?

THE COURT: ALL RIGHT. LET'S GO AS TO THE DISCOVERY ISSUES, HOWEVER, FIRST.

MR. SCHECK: YOUR HONOR, THE -- WE HAVE A NUMBER OF CONCERNS ABOUT DISCOVERY ABUSES WITH RESPECT TO A LETTER WE SENT YOU. THE FIRST ISSUE HAS TO DO WITH THE TAPE WHICH IS THE ONE THAT I THINK IS MOST PRESSING BECAUSE WE BELIEVE IT REQUIRES A HEARING. THE SECOND ISSUE HAS TO DO WITH THE FAILURE TO PROVIDE CERTAIN LABORATORY PAGES, LAB NOTE PAGES, WHICH WE HAVE BEEN GETTING OUT OF ORDER REALLY FROM THE COMMENCEMENT OF THESE PROCEEDINGS, BUT WE RECEIVED A WHOLE SERIES OF PAGES DEALING WITH THE CHRONOLOGY OF EVENTS STARTING IN JUNE THROUGH JULY, FROM MR. MATHESON IN PARTICULAR, THAT WE THINK WE SHOULD HAVE HAD A LONG TIME AGO AND THEY IMPACTED ON THINGS AS DISTANT AS THE SPLIT HEARINGS AND CERTAINLY RELATED TO OTHER IMPORTANT MATTERS. A SIGNIFICANT ISSUE THAT WE WOULD ADDRESS FOR THE COURT AND -- IS THE LATE DISCLOSURE OF THESE SETS PRINTOUTS AND THE APIMS PRINTOUTS WHICH WE THINK IS A DISCOVERY VIOLATION. THERE IS A VERY SIGNIFICANT ISSUE THAT WE HAVE BEEN GIVEN -- WHAT IS IT, MR. BLASIER, 200 PAGES?

MR. BLASIER: 283 PAGES.

MR. SCHECK: 283 PAGES WITH RESPECT TO SHOE EVIDENCE, MEMORANDUMS FROM THE FBI THAT -- OF INVESTIGATIONS THAT TOOK PLACE IN AUGUST, INTERVIEWS FROM ALL ACROSS THE COUNTRY, THINGS THAT IF WE WERE TO DOUBLE TRACK AT THIS POINT IN TIME WITH THE LIMITED RESOURCES AVAILABLE IN THE MIDDLE OF TRIAL, IS EXTREMELY DIFFICULT. WE SHOULD HAVE RECEIVED ALL THAT MATERIAL MUCH EARLIER. THERE IS AN ISSUE THAT WILL ARISE, I'M NOT SURE IT IS SO PRESSING FOR TODAY, THAT A BINDLE OF HAIR AND FIBER THAT WAS REMOVED FROM THE HAT, THE BUNDY HAT, UMM, IN ALBANY BY DR. LEE AND WAS SENT BACK AND RECEIVED AT THE SID LABORATORY, WAS SUBSEQUENTLY LOST. AND MR. MORTON WAS UNABLE REVIEW THAT AND THE PROSECUTION HAS BEEN UNABLE TO PRODUCE IT AND WE THINK THAT RAISES AN ARIZONA VERSUS YOUNGBLOOD QUESTION BECAUSE THAT HAT CONTAINED NEGROID HAIRS THAT WERE INCONSISTENT WITH MR. SIMPSON WHICH WE THINK IS POTENTIALLY EXCULPATORY EVIDENCE AND WOULD MERIT RELIEF. WITH RESPECT TO THE LABORATORY PAGES AND THE SETS DOCUMENTS, PARTICULARLY THE SETS DOCUMENTS, LET ME ADDRESS THAT BRIEFLY. THE PROBLEM THERE, YOUR HONOR, IS THAT WE HAVE BEEN ASKING REPEATEDLY FROM THE VERY BEGINNING OF THIS CASE FOR ALL COMPUTERIZED RECORDS DEALING WITH THE CHAIN OF CUSTODY WHEN THESE ITEMS WERE BOOKED FROM THE VERY BEGINNING. WE GOT PROPERTY REPORTS INITIALLY, THEN WE GOT WITH DATES THAT WERE ALL PLAINLY INCONSISTENT WITH THE FACTS, THEN WE GOT A COMPUTERIZED PRINTOUT A FEW MONTHS AGO, MAYBE FIVE OR SIX MONTHS AGO, THAT LISTED -- JUST INDICATED WHEN THINGS WERE OFFICIALLY BOOKED. TOOK A LONG TIME TO FIGURE OUT THAT WHAT MEANT. APPARENTLY IT REPRESENTED THE DATES THAT THINGS ENTERED THE APIMS SYSTEM, I BELIEVE THE APIMS SYSTEM AS OPPOSED TO THE SETS SYSTEM. AS THE COURT RECALLS, THE SETS SYSTEM IS A COMPUTERIZED TRACKING SYSTEM WITHIN SID AND THE APIMS SYSTEM IS THE COMPUTERIZED TRACKING SYSTEM THAT I GUESS COVERS THE LOS ANGELES POLICE DEPARTMENT. WE FINALLY RECEIVED, WITH THE COURT'S -- THROUGH THE COURT'S GOOD OFFICES AND THE EFFORTS OF MR. HODGMAN AND MR. YOCHELSON, I THINK ABOUT TWO WEEKS AGO OR A WEEK AGO REALLY, A SET OF SETS PAPERS FOR CERTAIN KEY ITEMS THAT WE SPECIFIED BECAUSE WE WANTED TO GET WHAT WE COULD GET. BUT WHEN YOU LOOK AT THOSE ITEMS, WHAT IT REPRESENTS IS EVERY TIME A PACKAGE IS TAKEN FROM ONE AREA OF THE LABORATORY TO ANOTHER, PEOPLE HAVE TO HIT THEIR BAR CODES AND THEN IT INDICATES WHETHER SOMETHING IS IN TRANSIT.

THE COURT: COUNSEL, I'M FAMILIAR WITH WHAT IT IS. WHAT IS THE PROBLEM?

MR. SCHECK: THE PROBLEM IS THAT IN ORDER TO FIGURE OUT WHAT HAPPENED TO EACH ITEM OF EVIDENCE, ONE HAS TO GO BACK THROUGH THE VOLUMINOUS TESTING RECORD AND TRY TO FIGURE OUT WHAT WAS BEING TESTED OR HANDLED AT A PARTICULAR TIME, BECAUSE WHAT THEY ARE TRACKING ARE -- THEY WILL PUT LIKE SEVEN OR EIGHT BAGS OR A WHOLE BUNCH OF ENVELOPES INTO ONE BIG BOX. THEN SOMEBODY IN THE SEROLOGY LAB MAY GO IN AT VARIOUS DIFFERENT OCCASIONS AND TEST CERTAIN THINGS OR NOT, AND IN ORDER TO FIGURE OUT WHO HAD ACCESS AND WHERE IT WENT AND HOW, IS AN EXTRAORDINARILY COMPLICATED TASK. THIS IS NOT A SYSTEM THAT IS SET UP AS MANY OTHERS ARE, IN A SENSIBLE FASHION WHERE YOU CAN HAVE ONE SET OF DOCUMENTS COMPUTERIZED OR OTHERWISE, TO FIGURE OUT IN ORDER ONE ITEM AT ONE TIME, WHEN IT WAS TAKEN, ET CETERA, ET CETERA. THIS IS A NIGHTMARE TO TRY TO TRACK THROUGH THEIR EVIDENCE. WE SHOULD HAVE HAD THIS EVIDENCE A LONG TIME TO GO TO FIGURE OUT WHAT WE ARE DEALING WITH AND TRACK THESE THROUGH, AND IT IS LATE DISCLOSURE WE FEEL. AND FRANKLY, WE HAVEN'T HAD ANY MEANINGFUL DISCLOSURE AS FAR AS THE APIMS RECORDS ARE CONCERNED. THEY JUST HANDED US THIS HUGE, INCOMPREHENSIBLE SHEETS OF DOCUMENTS. IT SEEMS TO US MERITS AN INSTRUCTION TO THE JURY THAT THE PROSECUTION HAS FAILED IN ITS DISCOVERY OBLIGATIONS WITH RESPECT TO THESE CHAIN OF CUSTODY DOCUMENTS, THEY WERE NOT TURNED OVER IN A TIMELY FASHION, AND THAT THE JURY CAN CONSIDER THAT WITH RESPECT TO WHAT JUDGMENTS THEY CAN MAKE ABOUT WHETHER CHAIN OF CUSTODY WAS PROPERLY COMPLIED WITH. AND WE'LL SUBMIT THAT REQUEST TO YOU IN WRITING A FORMAL REQUEST FOR AN INSTRUCTION. BUT THE MOST PRESSING MATTER IS THIS VIDEOTAPE, WHICH I UNDERSTAND THE COURT HAS VIEWED. WE HAVE BEEN ASKING FOR THIS VIDEOTAPE FOR MONTHS BECAUSE A LONG TIME AGO WE SAW ON A TELEVISION NEWS CLIP A PICTURE OF SOMEBODY TAKING THIS VIDEOTAPE AT ROCKINGHAM. IN VIEWING THIS VIDEOTAPE, AS I'M SURE THE COURT NOTES, THERE IS A TIME ON IT THAT INDICATES WHEN --

THE COURT: DATE AND TIME.

MR. SCHECK: DATE AND TIME. WE HAVE BEEN INFORMED BY THE PROSECUTORS, WELL, DISREGARD THAT DATE AND TIME, IT IS NOT CORRECT. THEY FAILED TO CHANGE THE CAMERA WHEN THEY SHIFTED OVER TO NEW TIMES -- NEW TIME PERIOD. BUT WHETHER IT IS THE --

MS. LEWIS: DAYLIGHT SAVINGS.

MR. SCHECK: DAYLIGHT SAVINGS. WHETHER IT WAS THE TIME THAT IT PURPORTS TO BE ON THE CAMERA OR WHETHER IT IS DISCOUNTED OR MOVED AHEAD BY AN HOUR BY VIRTUE OF DAYLIGHT SAVINGS TIME, THERE ARE CONFLICTS THAT WE CAN SEE WITH RESPECT TO, UMM, WHICH PEOPLE ARE SEEN AT DIFFERENT LOCATIONS AND THE DOCUMENT THAT WE HAVE IN TERMS OF WHEN DIFFERENT SEARCHES WERE CONDUCTED.

PERHAPS MOST IMPORTANT OF ALL, WHAT DOES THIS VIDEOTAPE REPRESENT? WE WANT TO TAKE TESTIMONY AT A HEARING FROM THE PEOPLE WHO MADE IT AS TO WHAT THEY WERE -- WHAT THEY WERE TAPING, WHO DIRECTED THEM TO DO THE TAPING, WHAT THEY THOUGHT THEY WERE TAPING, WERE THEY TAPING THE ROCKINGHAM RESIDENCE AND ALL THE VARIOUS DIFFERENT ROOMS AS IT WAS BEFORE ANY SEARCHES WERE CONDUCTED? WHAT SEARCHES HAD BEEN CONDUCTED BEFORE THIS TAPE WAS TAKEN? IS THIS SOME KIND OF AN INVENTORY TAPE? WAS THIS A TAPE THAT WAS TAKEN TO MEMORIALIZE WHERE VARIOUS DIFFERENT PIECES OF EVIDENCE WERE? THAT IS A QUESTION THAT WE SHOULD HAVE BEEN ABLE TO EXPLORE AT THE SUPPRESSION HEARINGS IN TERMS OF THE LEGALITY OF THE SEARCHES, BE ABLE TO -- THIS TAPE MAY SUGGEST THAT SEARCHES WERE PERFORMED EVEN BEFORE THE SEARCH WARRANT ISSUED. IT GOES TO THE NATURE IN WHICH THE SEARCH WAS EXECUTED AND THE CONTENTIONS ABOUT GENERAL SEARCH THAT WERE RAISED AT THAT HEARING. MORE IMPORTANTLY, FOR THE UPCOMING COLLECTION WITNESSES, THE LOCATION OF VARIOUS ITEMS.

THE COURT: WELL, MR. SCHECK, LET ME ASK YOU THIS: DO WE NEED A HEARING TO DO THIS? WHY DON'T WE JUST HAVE THE PROSECUTION IDENTIFY WHO THE CAMERA PERSON WAS AND MAKE THAT PERSON AVAILABLE FOR YOU TO INTERVIEW HIM? I MEAN, WHY DO I HAVE TO TAKE UP COURT TIME THAT I COULD OTHERWISE USE WITH THE JURY?

MR. SCHECK: WELL, WE WOULD LIKE, YOUR HONOR -- WELL, FIRST OF ALL, I THINK THAT WHAT WE WANT IS THAT TESTIMONY UNDER OATH AT THIS POINT BECAUSE WE SEE CONTRADICTIONS AND WE THINK SERIOUS ISSUES. I WILL GIVE YOU A SIMPLE EXAMPLE. AS I'M SURE THE COURT SAW WITH GREAT INTEREST, AT ONE POINT DURING THE COURSE OF THIS VIDEOTAPE THE CAMERA PANS OVER THE MASTER BEDROOM AND SHOWS THOSE STRAPS THAT APPARENTLY WERE MOVED AROUND AT SOME POINT IN TIME ON THE BED, AND THEN JUST AT THE POINT WHERE IT IS ABOUT TO SHOW THE SOCKS, A VERY CRITICAL PIECE OF EVIDENCE IN THIS CASE AND WHERE THEY WERE AT WHATEVER TIME THIS TAPE WAS TAKEN, THE CAMERA CUTS ALL OF A SUDDEN AND MOVES TO A NEW POSITION. WE ARE VERY INTERESTED IN WHY THAT HAPPENED. ALSO, THE STATE OF AFFAIRS IN THE BATHROOM AND IN OTHER ROOMS, WHAT WAS LYING AROUND, WHERE IT WAS, WHAT KNOWLEDGE THESE PEOPLE HAVE OF THAT, THAT IS SOMETHING THAT WE THINK SHOULD BE TAKEN UNDER OATH, THAT KIND OF TESTIMONY, SO WE CAN HAVE THAT AND USE THAT.

THE COURT: ALL RIGHT. WELL, MR. SCHECK, LET ME ASK YOU THIS: YOUR LETTER TO THE COURT REGARDING THIS VIDEOTAPE WAS ASKING FOR SANCTIONS, BUT YOU DID NOT SPECIFY WHAT SANCTIONS YOU ARE SEEKING WITH REGARD TO THE LATE DISCLOSURE OF THE TAPE.

MR. SCHECK: THAT IS PRECISELY THE POINT. WE DON'T KNOW, UNTIL WE MAKE INQUIRY OF HOW THIS TAPE WAS CREATED, WHO WAS LEADING AROUND THE PERSON THAT WAS DOING THE TAPE, WHAT INSTRUCTIONS THEY HAD, WHAT THE CIRCUMSTANCES OF THIS WERE. WE WON'T KNOW WHAT PRECISELY THE DIMENSIONS OF THE PREJUDICE ARE, WHETHER THIS TAPE HELPS US IN CERTAIN AREAS, AS MUCH AS WE THINK IT MIGHT, WHETHER OR NOT IT IS SOMETHING THAT THE PROSECUTION SHOULD BE PRECLUDED FROM USING PARTS OR ANY OF IT. WE DON'T REALLY KNOW. IN ORDER TO FIGURE OUT THE DIMENSIONS OF THE PREJUDICE HERE, WE HAVE TO HAVE A HEARING BECAUSE IT IS VERY HARD FOR US TO FIGURE OUT EVEN THE TIME THAT THIS TAPE WAS TAKEN, MUCH LESS THE IMPACT IT HAS ON SEARCH QUESTIONS AND ALSO ON THE UPCOMING TESTIMONY OF THE WITNESSES WHO SEIZE THINGS AT ROCKINGHAM. THAT IS OUR PROBLEM. AND WE WANT THAT UNDER OATH. I MEAN, I WOULD LIKE TO ACCOMMODATE THE COURT IN TERMS OF THE JURY TIME. THAT IS WHY I WAS PERHAPS INAPPROPRIATELY PRESSING THE COURT TO CONSIDER THIS ISSUE YESTERDAY, BUT WE ARE VERY SERIOUS ABOUT THIS. WE THINK THIS IS A VERY SERIOUS DISCOVERY VIOLATION.

I CAN POINT OUT TO THE COURT THAT THERE IS PANNING OF THAT GARAGE AREA AND THE DOOR, OBJECTS NEAR THAT DOOR. THAT IS SOMETHING THAT THE DEFENSE SHOULD HAVE KNOWN WHEN IT WAS CROSS-EXAMINING DETECTIVE LANGE ABOUT PICTURES OF THAT. IT IS SOMETHING THAT THE DEFENSE SHOULD HAVE BEEN ABLE TO SEE IN CROSS-EXAMINING DETECTIVE VANNATTER AND OTHERS IN THE TRIAL. MR. KAELIN, ABOUT THAT WHOLE GENERAL -- WHAT WAS THE STATE OF OBJECTS IN THAT ROCKINGHAM ADDRESS AT A PARTICULAR TIME IS SOMETHING THAT WE WERE ENTITLED TO KNOW AT THE SUPPRESSION HEARINGS AND BEFORE THIS TRIAL STARTED. AND WE ASKED FOR THIS TAPE NUMEROUS TIMES AND IT WAS SUPPRESSED. THE CIRCUMSTANCES OF WHY IT WASN'T TURNED OVER, I THINK, ARE ALSO EXTREMELY RELEVANT IN TERMS OF WHAT SANCTIONS THE COURT MIGHT WANT TO IMPOSE, AND I THINK WE NEED TO HAVE TESTIMONY AS FAR AS THAT IS CONCERNED. SO WE ARE --

THE COURT: SO YOU ARE ASKING FOR A HEARING AT THIS POINT?

MR. SCHECK: THAT IS EXACTLY RIGHT.

THE COURT: ALL RIGHT. MISS LEWIS, IS THIS YOUR ISSUE?

MS. LEWIS: YOUR HONOR, ACTUALLY MR. GOLDBERG IS GOING TO ADDRESS THE COURT FIRST TO SET FORTH THE LAW AND TALK ABOUT THE OTHER DOCUMENTARY ITEMS. I'M GOING TO DEAL WITH THE VIDEOTAPE. SO IF YOU DON'T MIND, WE CAN TAKE THEM IN REVERSE ORDER.

THE COURT: ALL RIGHT. LET'S DEAL WITH THE VIDEOTAPE FIRST.

MS. LEWIS: YOU WANT TO DO THE VIDEOTAPE FIRST?

THE COURT: YES.

MS. LEWIS: YOUR HONOR, I HAD A CONVERSATION WITH DETECTIVE LUPER OF THE LOS ANGELES POLICE DEPARTMENT YESTERDAY WHO WAS THE DETECTIVE RESPONSIBLE FOR THE EXECUTION OF THE SEARCH WARRANT ON JUNE 13TH AT THE DEFENDANT'S RESIDENCE AT ROCKINGHAM. I BELIEVE DETECTIVES VANNATTER AND LANGE WERE DOWNTOWN WITH MR. SIMPSON DURING THAT PERIOD OF TIME AND THAT IS WHY HE WAS RESPONSIBLE FOR IT. THAT VIDEOTAPE, AS YOUR HONOR HAS SEEN, I GUESS SEVERAL TIMES NOW, DEPICTS THE PREMISES IN AND ABOUT THE HOUSE, VERY BRIEFLY, AND ALL OF THE VALUABLE ITEMS, INCLUDING THE MANY TROPHIES AND PLAQUES AND AWARDS AND SO FORTH WITHIN THE HOUSE, AS WELL AS THE FURNITURE, PAINTINGS, OTHER ITEMS OF VALUE, AND WAS TAKEN AS PART OF LAPD'S ONGOING POLICY TO VIDEOTAPE LOCATIONS WHERE SEARCH WARRANTS ARE EXECUTED.

IT IS A POLICY THAT CAME INTO IMPLEMENTATION, I AM INFORMED, BECAUSE OF THE 39TH AND DALTON LAWSUITS WHICH HAPPENED A FEW YEARS AGO, SEVERAL YEARS AGO NOW. SO THAT THE POLICY OF THE POLICE DEPARTMENT IS TO TAKE A VIDEOTAPE FOR THEIR OWN CIVIL LIABILITY ADMINISTRATIVE PURPOSES TO MAKE SURE THAT THEY DON'T HAVE CLAIMS AGAINST THEM LATER THAT THEY HAVE STOLEN PROPERTY OR THAT THEY HAVE TRASHED PREMISES. THAT WAS THE WHOLE REASON WHY THIS PARTICULAR TAPE WAS TAKEN. THE TAPE SHOWS THE SAME LOCATIONS THAT ARE SHOWN IN PHOTOGRAPHS. THE DEFENSE HAS HAD PHOTOGRAPHS OF THE INTERIOR OF ROCKINGHAM FOR MONTHS AND MONTHS. THOSE PHOTOGRAPHS SHOW ALMOST THE IDENTICAL THINGS THAT ARE SHOWN ON THE VIDEOTAPE, EXCEPT THE EMPHASIS WITH THE VIDEOTAPE IS ON THE VALUE OF VARIOUS ITEMS BECAUSE IT WAS TAKEN WITH THAT PURPOSE IN MIND.

THE COURT: SO ARE YOU INDICATING TO THE COURT THAT THIS WAS TAKEN BY SOME LAPD PHOTOGRAPHER OR VIDEOGRAPHER?

MS. LEWIS: YES. IT WAS TAKEN BY -- IF THE COURT RECALLS, THERE IS A GENTLEMAN IN A SUIT IN THERE WHO I DIDN'T RECOGNIZE, APPARENTLY A SUPERVISOR FROM SID, WHO WAS THERE WHO CAME OUT WITH A -- WHATEVER YOU CALL SOMEBODY LIKE THAT NOW -- VIDEOGRAPHER, SPECIFICALLY FOR THE PURPOSE OF CAPTURING THOSE THINGS BECAUSE OF CIVIL -- POTENTIAL CIVIL LIABILITY, WHICH THE LOS ANGELES POLICE DEPARTMENT OCCASIONALLY EXPERIENCES WHEN IT GETS SUED OVER MATTERS HAVING TO DO WITH THE EXECUTION OF SEARCH WARRANTS. SO THAT WAS AN ADMINISTRATIVE TAPE TAKEN FOR THAT REASON AND IT WAS A DIFFERENT -- I WILL JUST FINISH THE SENTENCE -- I SEE YOU ARE ABOUT TO INQUIRE -- BUT IT WAS TAKEN BY A DIFFERENT PERSON THAN THE PERSON WHO WENT THROUGH AND DID THE PHOTOS. AND IT IS ALSO EVIDENT THAT THIS WAS AN ADMINISTRATIVELY-TAKEN VIDEOTAPE ITSELF AUTHENTICATING IN THAT RESPECT BECAUSE OF IMPORTANCE. IT DOES NOT SHOW THE BLOOD ON THE FOYER, THE BLOOD ON THE DRIVEWAY, THE PATHWAY.

THE COURT: THERE ARE TWO -- IT DOES LOOK DOWN AT WHAT APPEARS TO ME TO BE TWO OF THE BLOOD SPOTS IN THE FOYER.

MS. LEWIS: OKAY. I MISSED THAT. I'M SORRY IF IT DOES.

MR. NEUFELD: AND PAUSES AT THAT POINT.

MS. LEWIS: WELL, I FAST FORWARDED AND REWOUND A LITTLE BIT, SO I DIDN'T SEE THAT.

THE COURT: I WATCHED IT FOUR TIMES VERY CAREFULLY.

MS. LEWIS: WELL, I CERTAINLY TRUST YOUR HONOR'S PERCEPTION THEN. BUT THE POINT IS IT DID NOT GO DOWN THE PATHWAY, IT WAS NOT MEANT TO AND DID NOT RECORD THE SCENE AS A CRIME SCENE, DID NOT RECORD THE MOST PERTINENT ASPECTS OF IT.

THE COURT: FORGIVE ME FOR INTERRUPTING YOU, MISS LEWIS, BUT THE ISSUE I'M INTERESTED IN IS WHO TOOK IT AND WHY WASN'T IT TURNED OVER EARLIER.

MS. LEWIS: IT WAS TAKEN AT DETECTIVE LUPER'S DIRECTION, AS I MENTIONED. IT WAS GIVEN TO HIM THE FOLLOWING DAY. HE THREW IT IN A DRAWER KNOWING THAT IT WAS GOING TO BE FOR ADMINISTRATIVE PURPOSES. IT DIDN'T OCCUR TO HIM TO SEEK TO MAKE IT PART OF THE DISCOVERY TYPE OF MATERIALS IN THE CASE.

THE COURT: ALL RIGHT. LET ME ASK YOU ONE OTHER QUESTION. DURING SOME OF THE NEWS COVERAGE OF THE SEARCH AT THE ROCKINGHAM RESIDENCE, LONG BEFORE I HAD ANY INVOLVEMENT IN THIS CASE, I DID SEE SOME NEWS COVERAGE IN THE -- WHAT I NOW RECOGNIZE AS THE POOL AREA, THE TAPE, WROUGHT IRON TABLE OUT BY THE POOL AREA, OF A PERSON THAT I RECOGNIZED AS A DISTRICT ATTORNEY PHOTOGRAPHER WHO WAS CARRYING A FULL-SIZED VHS CAMCORDER.

MS. LEWIS: THE D.A. PHOTOGRAPHER DID VIDEOTAPE THE JUNE 28TH SEARCH.

THE COURT: OKAY. PERHAPS THAT IS WHAT I SAW.

MS. LEWIS: I BELIEVE SO BECAUSE I KNOW THIS WAS AN SID PERSONNEL ON THE 13TH AND I BELIEVE THE DEFENSE HAS HAD DISCOVERY ON THAT JUNE 28TH VIDEOTAPE.

THE COURT: ALL RIGHT.

MS. LEWIS: SO WHAT WE ARE TALKING ABOUT HERE IS SOMETHING THAT WAS AFTER DETECTIVE LUPER THREW IT IN HIS DRAWER. AT SOME POINT AFTER THAT LAPD MADE AVAILABLE TO RHD AN ADDITIONAL ROOM TO BE SET ASIDE FOR THIS CASE ALONE. I WAS JUST GOING TO GIVE THE COURT WHAT HAPPENED TO THE TAPE AFTER HE THREW IT IN HIS DRAWER. HE --

THE COURT: MISS LEWIS, DO YOU AGREE THAT PERHAPS THE DEFENSE IS ENTITLED THEN TO INQUIRE OF BOTH DETECTIVE LUPER AND THE VIDEOGRAPHER AS TO THE FACTS AND CIRCUMSTANCES REGARDING BOTH THE CREATION OF THE TAPE AND AN EXPLANATION AS TO WHERE IT HAS BEEN FOR THE LAST SEVEN MONTHS?

MS. LEWIS: I THINK THAT IS A REASONABLE THING FOR THEM TO DO. WE WILL MAKE DETECTIVE LUPER AVAILABLE, ASSUMING HE IS WORKING TOMORROW MORNING, IT IS FRIDAY, I'M NOT SURE, BUT WE WILL MAKE HIM AVAILABLE TOMORROW MORNING AND THE SAME WITH THE OTHER PERSON THAT CAN SPEAK TO HIM. THEY ARE VERY FORTHCOMING, FORTHRIGHT INDIVIDUALS. THERE IS NO REASON TO TIE UP THIS COURT'S VALUABLE TIME WITH A SEQUESTERED JURY TO HAVE A HEARING, SOME KIND OF A FORMAL HEARING ON IT. IT IS REALLY NOT NECESSARY, YOUR HONOR, AND I -- THE DEFENSE CAN EASILY SATISFY THEIR QUESTIONS IN THAT AREA, QUESTIONING WITH DETECTIVE LUPER. AND IN FACT THERE IS ONE ASPECT THAT MR. SCHECK DIDN'T MENTION, BUT THE -- WHAT WE NOTICED ABOUT THE VIDEOTAPE WAS A GLOVE THAT SHOWS UP IN THE VIDEOTAPE MORE DISTINCTLY THAN IT DOES IN THE PHOTOGRAPHS AND THERE IS AN EXPLANATION FOR THAT THEY HAVE NOT INQUIRED ABOUT IT, SO I WON'T TELL THEM, BUT DETECTIVE LUPER CERTAINLY CAN TELL THEM THAT. AND I DON'T WANT TO TAKE UP THE COURT'S TIME. I DON'T MEAN TO BE MYSTERIOUS, BUT I AM SATISFIED MYSELF FROM LOOKING AT THE VIDEOTAPE BY ASKING DETECTIVE LUPER CERTAIN THINGS ABOUT CERTAIN THINGS THAT I SAW IN THERE, AND I THINK THE COURT -- THE DEFENSE CAN SATISFY THEMSELVES MORE EASILY SO PROBABLY BY DOING IT INFORMALLY WITH THE DETECTIVE AND WITH THE OTHER PERSON THAN IN A FORMAL COURT HEARING.

THE COURT: ALL RIGHT. MR. SCHECK.

MR. SHAPIRO: FIRST OF ALL --

MR. GOLDBERG: YOUR HONOR, WERE WE ALLOWED TO RESPOND TO THE OTHER ITEMS, THE APIMS?

THE COURT: YES, YOU WILL. LET ME JUST FINISH THE VIDEOTAPE FIRST AND LET'S GET THAT OUT OF THE WAY.

MR. SCHECK: UMM --

THE COURT: MR. SCHECK, THE ONLY THING I'M INTERESTED IN FROM YOU AT THIS POINT IS WHY DO YOU FEEL IT IS NECESSARY TO HAVE A HEARING UNDER OATH AT THIS POINT IF THE PROSECUTION IS WILLING TO MAKE THESE PEOPLE AVAILABLE TO YOU FIRST TO INTERVIEW? BECAUSE MY SUGGESTION TO YOU IS THAT I'M GOING TO DIRECT THE PROSECUTION TO MAKE THEM AVAILABLE TO YOU TOMORROW, IF THEY ARE ON DUTY AND AVAILABLE, AND AFTER TAKING STATEMENTS FROM THEM, IF YOU FEEL A FURTHER HEARING IS NECESSARY WITH TESTIMONY UNDER OATH, I WILL ACCOMMODATE YOU THEN, BUT I WOULD LIKE TO DO IT THE EASY WAY FIRST RATHER THAN HAVING TO -- I DON'T WANT TO NECESSARILY USE UP MY COURT TIME.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: WELL, I THINK THAT THE -- THE ONLY PROBLEM IS THAT WE CAN'T BE IN TWO PLACES AT THE SAME TIME, AND I SUSPECT THAT THE NEXT WITNESS IS MR. FUNG AND WE WOULD LIKE TO KNOW WHAT THESE PEOPLE ARE GOING TO SAY ABOUT THE CIRCUMSTANCES OF THE TAPE. AND IF WE HAD EVEN LEARNED ABOUT IT ANYTIME EARLIER, WE COULD HAVE TAKEN UP THE COURT'S SUGGESTION. THE PROBLEM IS, IS THAT THIS IS DIRECTLY RELEVANT TO THE TESTIMONY WE ARE ABOUT TO HEAR.

THE COURT: ALL RIGHT. LET DO THIS THEN --

MR. SCHECK: I WOULD NOTE ONE OTHER THING, JUDGE.

THE COURT: SURE.

MR. SCHECK: I AM INFORMED THAT AN EMPLOYEE AT MR. SIMPSON'S RESIDENCE TESTIFIED AT THE 1538.5 HEARING THAT SHE SAW SOMEBODY THERE DOING A VIDEOTAPE, SO THIS WAS ANOTHER REASON THAT WE HAVE ALWAYS MAINTAINED THAT THERE WAS SUCH A TAPE AND I THINK THEY ARE ON NOTICE OF IT.

THE COURT: ALL RIGHT. LET'S DO THIS THEN: LET'S ORDER DETECTIVE LUPER AND THE VIDEOGRAPHER HERE TOMORROW MORNING AT 8:30.

MR. NEUFELD: ONE OTHER PERSON, TOO YOUR, HONOR.

MR. SCHECK: THE MOST RELEVANT PERSON IS THE FELLOW IN THAT INTERESTING GRAY SUIT FROM SID.

THE COURT: WITH THE BADGE HANGING OUT?

MR. SCHECK: YES.

THE COURT: YOU NOTICED THAT, TOO.

MS. LEWIS: I BELIEVE HE IS AN SID SUPERVISOR. AGAIN, IF THESE PEOPLE ARE WORKING TOMORROW.

THE COURT: OKAY. BUT IF WE HAVE EVERYBODY HERE, THOSE THREE PERSONS INVOLVED HERE TOMORROW MORNING AT 8:30. COUNSEL BE HERE AT 8:30. WE WILL JUST HAVE AN INFORMAL INTERVIEW.

IF YOU FEEL, AFTER INQUIRING OF THEM, THAT A FORMAL HEARING IS NECESSARY, I WILL ENTERTAIN IT AT THAT TIME. BUT I SUSPECT -- MR. GOLDBERG, ARE YOU GOING TO BE HANDLING THE DIRECT EXAMINATION OF MR. FUNG?

MR. GOLDBERG: YES, YOUR HONOR.

THE COURT: AND JUST OUT OF CURIOSITY, CHRONOLOGICALLY WHERE DO YOU INTEND ON STARTING YOUR EVIDENCE COLLECTION SAGA?

MR. GOLDBERG: IT STARTS AT ROCKINGHAM.

THE COURT: I WAS AFRAID OF THAT. OKAY. WELL, I GUESS WE NEED TO RESOLVE THIS ISSUE FIRST. ALL RIGHT. TOMORROW MORNING AT 8:30 WITH THE THREE PERSONS AVAILABLE.

MS. LEWIS: YES, YOUR HONOR.

THE COURT: ALL RIGHT. AND MISS LEWIS, I GIVE YOU LEAVE TO USE THE COURT PHONE RIGHT NOW. LET'S MAKE SURE WE GET THESE PEOPLE.

MS. LEWIS: I WILL DO THAT NOW, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. MR. GOLDBERG, AS TO THE APIMS, SETS, ET CETERA.

MR. GOLDBERG: THANK YOU, YOUR HONOR. YOUR HONOR, BEFORE GETTING DIRECTLY INTO THE FACTS REGARDING THIS APIMS AND SETS ISSUE AND ALSO THE OTHER ISSUE RAISED BY COUNSEL WHICH RELATES TO THESE NEW "L" NUMBERS AND THE LABORATORY REPORTS, I JUST WANTED TO DISCUSS GENERAL PRINCIPLES OF CALIFORNIA DISCOVERY LAW AS WE UNDERSTAND THEM NOW IN A POST PROPOSITION 115 ENVIRONMENT, BECAUSE I THINK THAT THEY WILL BE HELPFUL TO THE COURT IN RESOLVING NOT ONLY THESE ISSUES, BUT PERHAPS THE ISSUE ABOUT THE VIDEOTAPE, AS WELL AS OTHER DISCOVERY ISSUES THAT ARE GOING TO ARISE THROUGHOUT THESE PROCEEDINGS BASED UPON THE HISTORY OF THINGS THAT HAVE GONE ON TODAY. FIRST OF ALL, THE PEOPLE'S DISCOVERY OBLIGATION NOW, AS I UNDERSTAND IT, IS LIMITED TO ESSENTIALLY TWO SOURCES. NO. 1 IS THE CONSTITUTION OF THE UNITED STATES. WE HAVE TO PROVIDE EXCULPATORY MATERIALS, SO-CALLED BRADY MATERIALS, AND THE SECOND SOURCE IS THE PENAL CODE, 1054 OF THE CALIFORNIA PENAL CODE. AND THEREFORE, IN ANY DISCOVERY ISSUE THAT IS BEFORE A JUDGE NOW IN A POST PROPOSITION 115 ENVIRONMENT, THERE IS ESSENTIALLY A TWO-STAGE ANALYSIS THAT THE COURT MUST GO THROUGH. ONE IS TO LOOK AT THE ISSUE OF WHETHER OR NOT IT IS EXCULPATORY WITHIN THE MEANING OF BRADY, AND THE SECOND THEN IS TO GO SYSTEMATICALLY THROUGH THE PENAL CODE AND MECHANICALLY APPLY WHAT HAS BEEN SET DOWN BY THE PEOPLE OF THE STATE OF CALIFORNIA THROUGH THE INITIATIVE PROCESS AS THE LAW OF THE STATE. NOW, I WOULD LIKE TO ADDRESS FIRST THIS ISSUE OF WHAT IS EXCULPATORY EVIDENCE AND CITE A COUPLE CASES TO THE COURT WHICH YOUR HONOR IS PROBABLY ALREADY FAMILIAR WITH AND COUNSEL. DON'T WORRY, IT IS NOT THE ENTIRE NOTEBOOK HERE, BUT I -- WE WILL DO THAT LATER ON THIS AFTERNOON. BUT THEY DO SET FORTH A DEFINITION OF "EXCULPATORY" THAT I DON'T THINK WE ARE REALLY THAT FAMILIAR WITH HERE IN CALIFORNIA, BECAUSE PRIOR TO PROPOSITION 115 WE BASICALLY DID FOLLOW RULES THAT WERE JUDICIOUSLY CREATED AND THOSE DISCOVERY RULES WERE ESSENTIALLY THAT WE WOULD JUST HAVE TO TURN OVER EVERYTHING THAT WE HAD IN OUR CASE FILE, UNLESS IT WAS SOMEHOW PRIVILEGED, SO THE GENERAL RULE WAS YOU GIVE IT OVER UNLESS THERE IS SOME SPECIFIC REASON WHY IT IS PRIVILEGED. BUT THAT IS NOT WHAT THE UNITED STATES CONSTITUTION REQUIRES, AND ONE CASE THAT DISCUSSES THIS IS CALIFORNIA VERSUS TROMBETTA, THE UNITED STATES SUPREME COURT CASE THAT THE COURT IS FAMILIAR WITH AT 104 SUPREME COURT REPORTER, AND I'M LOOKING AT PAGE 2534. THE COURT IS PROBABLY FAMILIAR WITH THIS IN THE CONTEXT OF WHAT WE CALL IN OUR STATE HITCH MOTIONS WHERE A PIECE OF EVIDENCE HAS BEEN INTENTIONALLY OR NEGLIGENTLY DESTROYED, BUT THEY ALSO DISCUSS DISCOVERY OBLIGATIONS AND THEY SAY THAT THE DEFINITION OF MATERIALITY FOR THE PURPOSES OF DETERMINING WHAT IS DISCOVERABLE IS THE SAME IN THE CONTEXT OF WHAT WE CALL A HITCH MOTION AS IT IS IN THE CONTEXT OF BRADY MATERIAL. AND WHAT THEY SAID THERE IS THAT: "WHATEVER THE DUTY THE CONSTITUTION IMPOSES ON THE STATES TO PRESERVE EVIDENCE, THAT DUTY MUST BE LIMITED TO EVIDENCE THAT MIGHT BE EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE." AND THEN THEY HAVE A FOOTNOTE AND IN FOOTNOTE 8 THEY SAY: "IN OUR PROSECUTORIAL DISCLOSURE CASES WE HAVE IMPOSED A SIMILAR REQUIREMENT OF MATERIALITY AND WE HAVE REJECTED THE NOTION THAT A PROSECUTOR HAS A CONSTITUTIONAL DUTY TO ROUTINELY DELIVER HIS ENTIRE PILE TO THE DEFENSE COUNSEL. WE KNOW OF NO CONSTITUTIONAL REQUIREMENT THAT THE PROSECUTION MAKE A COMPLETE AND DETAILED ACCOUNTING TO THE DEFENSE OF ALL POLICE INVESTIGATORY WORK ON A CASE." SO THE CONSTITUTION DOES NOT REQUIRE US TO TURN EVERYTHING OVER. IT DOES NOT REQUIRE US TO EMPTY OUT OUR FILES, AS WAS DONE IN THE POST PROP -- PRE PROPOSITION 115 ENVIRONMENT. SO WE KNOW THAT MATERIALITY DOES NOT MEAN YOU EMPTY OUT YOUR CASE FILE AND GIVE EVERYTHING THAT IS NOT PRIVILEGED TO THE DEFENSE. IN ORDER TO DECIDE WHAT IT DOES MEAN, WE HAVE OR CONTINUE ON WITH SOME OF THE CASES, AND NEXT I CALL TO THE COURT'S ATTENTION TO ANOTHER FAIRLY WELL-KNOWN UNITED STATES SUPREME COURT CASE, U.S. VERSUS AGURS AT 96 SUPREME COURT REPORTER 2392 AND I'M LOOKING AT PAGE 2400. THERE THE UNITED STATES SUPREME COURT SAYS: "THE COURT OF APPEALS APPEARS TO HAVE ASSUMED THAT THE PROSECUTOR HAS A CONSTITUTIONAL OBLIGATION TO DISCLOSE ANY INFORMATION THAT MIGHT AFFECT THE JURY'S VERDICT. THAT STATEMENT OF A CONSTITUTIONAL STANDARD OF MATERIALITY APPROACHES THE SPORTING THEORY OF JUSTICE WHICH THE COURT EXPRESSLY REJECTED IN BRADY. FOR A JURY'S APPRAISAL OF A CASE MIGHT BE AFFECTED BY AN IMPROPER OR TRIVIAL CONSIDERATION AS WELL AS BY EVIDENCE, GIVING A RISE TO LEGITIMATE DOUBT ON THE ISSUE OF GUILT."

THE COURT: ONE OF MY FAVORITE JUDICIAL PASSAGES.

MR. GOLDBERG: IT IS ONE OF MY FAVORITE, TOO, NOW, YOUR HONOR. "IF EVERYTHING THAT MIGHT INFLUENCE THE JURY MUST BE DISCLOSED, THE ONLY WAY A PROSECUTOR COULD DISCHARGE HIS CONSTITUTIONAL DUTY WOULD BE TO ALLOW COMPLETE DISCOVERY OF HIS FILES AS A MATTER OF ROUTINE PRACTICE. WHETHER OR NOT PROCEDURAL RULES AUTHORIZING SUCH BROAD DISCOVERY MIGHT BE DESIRABLE, THE CONSTITUTION SURELY DOES NOT DEMAND THAT MUCH." THEY WENT ON ON THE SAME PAGE FURTHER ON IN ANOTHER PARAGRAPH: "THE MERE POSSIBILITY THAT AN ITEM OF UNDISCLOSED INFORMATION MIGHT HAVE HELPED THE DEFENSE OR MIGHT HAVE AFFECTED THE OUTCOME OF A TRIAL DOES NOT ESTABLISH MATERIALITY IN A CONSTITUTIONAL SENSE." SO WHAT WE ARE ESSENTIALLY TOLD IN THIS CASE IS WE ARE TALKING ABOUT SUBSTANTIAL EVIDENCE THAT MIGHT CAUSE A REASONABLE OBJECTIVE FACT-FINDER TO FIND A REASONABLE DOUBT AND THAT IS THE WAY IT IS ALSO DEFINED IN CALIFORNIA CASE LAW WHERE THE COURT IS PROBABLY FAMILIAR WITH THE PHRASE "SUBSTANTIAL MATERIAL EVIDENCE" AS BEING THE SORT OF SLOGAN THAT WE USE TO DESCRIBE WHAT IS DISCOVERABLE. AND IN PEOPLE VERSUS GONZALEZ AT 179 CAL.APP.3D 566, THEY TALK ABOUT THIS STANDARD OF SUBSTANTIAL MATERIAL EVIDENCE IN TERMS OF EVIDENCE THAT IS EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE DEFENSE AND THEY SAY IN THAT CASE CITING TROMBETTA. TROMBETTA PUT IT THIS WAY: "WHATEVER DUTY THE CONSTITUTION IMPOSES ON THE STATES TO PRESERVE EVIDENCE, THAT DUTY MUST BE LIMITED TO EVIDENCE THAT MIGHT BE EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE TO MEET THE STANDARD OF CONSTITUTIONAL MATERIALITY," AND THEN THEY CONTINUE ON FURTHER DOWN IN THAT SAME PARAGRAPH: "IN OUR PROSECUTORIAL DISCLOSURE CASES WE HAVE IMPOSED A SIMILAR REQUIREMENT OF MATERIALITY AND HAVE REJECTED THE NOTION THAT THE PROSECUTOR HAS A CONSTITUTIONAL DUTY TO ROUTINELY DELIVER HIS ENTIRE FILE OVER TO DEFENSE COUNSEL." SO WE BASICALLY KNOW, BASED UPON THE FEDERAL AND CALIFORNIA CASES, THAT WHEN WE ARE TALKING ABOUT MATERIALITY, WE ARE TALKING ABOUT SUBSTANTIAL MATERIAL EVIDENCE OF THE KIND THAT IS EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE DEFENDANT'S DEFENSE, SUCH THAT IT WOULD CAUSE A REASONABLE -- MIGHT CAUSE A REASONABLE FINDER OF FACT, IN OTHER WORDS, AN OBJECTIVE FINDER OF FACT TO FIND A REASONABLE DOUBT. NOW, AS I UNDERSTAND IT, THE DEFENSE IN THIS CASE IS FAIRLY STRAIGHTFORWARD IN SOME WAYS. AS I UNDERSTAND IT, THE DEFENSE IS THAT DETECTIVE FUHRMAN PLANTED THE GLOVE AND THEN PERHAPS BROKE INTO THE VEHICLE, THE BRONCO, AND WIPED THE VEHICLE WITH THE GLOVE. NOW, IF THAT IS THE DEFENSE, DOES THE DEFENSE BELIEVE THAT IT IS REASONABLY POSSIBLE THAT HE TOOK THE GLOVE FROM BUNDY, DROVE IT TO PARKER CENTER, BOOKED IT INTO EVIDENCE SO THAT IT WENT THROUGH APIMS, THEN DROVE BACK OUT TO THE LOCATION AT ROCKINGHAM TO PLANT IT AND THEN WIPE IT THROUGHOUT THE BRONCO? AND THAT IF THEY ONLY HAD THE APIMS MATERIAL THEY ARE GOING TO FIND SOME EVIDENCE OF THIS? IT IS VERY DIFFICULT, WHEN YOU APPLY THIS STANDARD OF CONSTITUTIONAL MATERIALITY, TO FIGURE OUT HOW THEY CAN MAKE A LEGITIMATE ARGUMENT THAT THIS APIMS AND SETS MATERIAL FALLS WITHIN THAT DEFINITION. IN ORDER FOR THE COURT TO UNDERSTAND THIS, I WOULD JUST LIKE TO GIVE YOU A LITTLE BIT OF BACKGROUND IN TERMS OF WHAT THESE MATERIALS ARE.

THE COURT: WELL, BEFORE YOU DO THAT, MR. GOLDBERG, ISN'T IT CORRECT, THOUGH, THAT THE DEFENSE HAS ALREADY BEEN GIVEN A SET OF EACH OF THESE MATERIALS?

MR. GOLDBERG: THAT IS TRUE.

THE COURT: SO ISN'T THE ARGUMENT SORT OF MOOT? THEY HAVE GOT IT. THE QUESTION IS HOW IS IT INTERPRETED OR WHETHER OR NOT THERE IS ANY OTHER WAY TO LOOK AT THIS.

MR. GOLDBERG: THEY ARE ASKING US TO REFORMAT IT, AND YOU SEE, THIS IS ONE OF THE PROBLEMS THAT WE GET, IN MY VIEW, WHEN WE GIVE THEM THINGS THAT WE ARE NOT REQUIRED TO DO UNDER THE CONSTITUTION, THAT WE ARE NOT REQUIRED TO DO UNDER THE PENAL CODE, AND I CAN TURN TO THE PENAL CODE AND ALSO SHOW HOW IT DOESN'T COME WITHIN ANY OF THE PROVISIONS OF 1054.

THE COURT: ALL RIGHT.

MR. GOLDBERG: THE PROBLEM THAT WE GET -- GET INTO IS WE THINK THAT WE ARE BEING NICE GUYS BY JUMPING THROUGH ALL THESE HOOPS THAT THEY HAVE SET UP FOR US, AND EVERY TIME THAT WE HAVE COMPLIED WITH THESE HOOPS, THEY WILL HAVE A NEW HOOP THAT THEY WANT US TO GO THROUGH. WE WON'T ARGUE ABOUT THE APIMS, WE WON'T LITIGATE IT, WE WON'T ASK THE COURT NOT TO ARGUE IT. IT DOESN'T COME WITHIN THE CONSTITUTION, IT DOESN'T COME WITHIN 1054. WE WILL BE NICE GUYS AND WE WILL GIVE IT TO THEM. WE DID THE SAME THING WITH THE SETS MATERIAL. WE DECIDED THAT WHAT WE WERE GOING TO DO ON THE APIMS MATERIAL WAS RATHER THAN TRYING TO DECIDE WHAT THEY MIGHT WANT OR WHAT THEY MIGHT NOT WANT IS JUST GIVE THEM EVERYTHING. SO IT IS INCREDIBLY VOLUMINOUS AND IT IS THE KIND OF COMPUTER CODE, AND I DON'T KNOW THE CORRECT TERMINOLOGY FOR IT, THE ENCRYPTED TYPE STUFF THAT IS USED IN A COMPUTER TO GENERATE THE THING THAT YOU CAN READ. IT IS IN ENGLISH. MAYBE YOUR HONOR KNOWS WHAT I'M TALKING ABOUT BECAUSE I'M JUST NOT FAMILIAR WITH THE CORRECT COMPUTER TERMINOLOGY.

THE COURT: AS YOU RECALL, I HAVE SEEN THE PRINTOUT THAT WE ARE TALKING ABOUT.

MR. GOLDBERG: YES, RIGHT, SO THEY HAVE EVERYTHING. WHAT THEY ARE SAYING IS THAT THE MATERIALS THAT THEY HAVE ARE SORTED OUT CHRONOLOGICALLY, THEY ARE NOT SORTED OUT BY ITEM NUMBER.

THE COURT: ALL RIGHT. MR. GOLDBERG, LET ME JUST JUMP AHEAD OF YOU FOR A MOMENT. YOUR ARGUMENT IS GOING TO BE IS THAT YOUR ONLY OBLIGATION, EVEN ASSUMING THAT THESE MATERIALS MEET THE TEST OF MATERIALITY, YOUR ONLY OBLIGATION IS TO TURN IT OVER, NOT TO INTERPRET IT FOR THEM, NOT TO MAKE IT EASIER FOR THEM TO UNDERSTAND? THAT YOUR ONLY OBLIGATION IS TO TURN IT OVER? WHETHER OR NOT THEY UNDERSTAND IT IS UP TO THEM. WHETHER OR NOT IT MAKES ANY INTELLIGIBLE SENSE TO ANYBODY IS UP TO THEM. IT IS NOT YOUR OBLIGATION TO SORT IT, EXPLAIN IT AND HELP THEM DIGEST IT? THAT IS YOUR ARGUMENT, CORRECT?

MR. GOLDBERG: THAT IS ESSENTIALLY IT, YOUR HONOR.

THE COURT: IT IS EASY, AS A FORMER PROSECUTOR, THAT I CAN SORT OF GUESS THAT THAT IS WHERE YOU ARE GOING.

MR. GOLDBERG: YES. THAT IS WHERE I WAS GOING, YOUR HONOR.

THE COURT: I HAVE HEARD THAT ARGUMENT MYSELF.

MR. GOLDBERG: BUT IN THIS CASE IT HAPPENS TO BE CORRECT.

THE COURT: I DON'T MEAN TO INTERRUPT YOU, BUT SENSING WHERE YOU ARE GOING, I THOUGHT I WOULD SORT OF JUMP AHEAD.

MR. GOLDBERG: I APPRECIATE THAT, YOUR HONOR, AND I DON'T KNOW IF THE COURT WANTS ME TO CONTINUE, IF YOU FEEL IT WOULD BE HELPFUL, TO STATE AS WHAT ACTUALLY APIMS AND SETS ARE, BECAUSE I THINK IT IS HAS BEEN SOMEWHAT OVERBILLED. THEY ARE NOT CHAIN OF CUSTODY TYPE SYSTEMS. WHAT THEY DO IS THEY ARE SOMETHING THAT WOULD BE USED BY SOMEONE WHO WANTED TO KNOW WHERE A PIECE OF EVIDENCE WAS, SO FOR INSTANCE, IF I WERE LOOKING FOR THE SOCKS, ITEM 13, AND I HAD NO IDEA WHERE IT WAS, WHERE TO START, I COULD HOPEFULLY IN APIMS FIND THAT IT HAD BEEN -- IF IT WERE SENT OUT OF LAPD AND NO LONGER IN THEIR CUSTODY, THAT IT WAS IN THE COURT'S CUSTODY. I DID FIND THAT -- THAT IS THE KIND OF INFORMATION I COULD GET THROUGH APIMS, BUT THAT WOULD BE IT. I COULD ALSO FIND OUT WHEN IT WENT INTO LAPD'S CUSTODY, SO IT IS SORT OF AN IN-OUT.

THE COURT: FOR THE COURT REPORTER'S BENEFIT, WHY DON'T YOU GIVE US THE ACRONYMS APIMS AND SETS STANDS FOR.

MR. GOLDBERG: YEAH, I WISH I KNEW, YOUR HONOR. YOU KNOW, I HAVE BEEN PRACTICING LAW FOR ALMOST TEN YEARS AS A PROSECUTOR AND I HAD NEVER HEARD OF THESE SYSTEMS UNTIL THIS CASE. I DON'T KNOW WHETHER MAYBE YOUR HONOR HAD. I KNOW THAT YOU HAVE MORE EXPERIENCE IN THE JUDICIAL SYSTEM THAN I. AND I HAVE TAKEN AN INFORMAL POLL AND ASKED OTHER PROSECUTORS AND I DON'T THINK THEY HAVE EVER HEARD OF IT EITHER, AND I WOULD SCARCELY DOUBT THAT ANY DEFENSE ATTORNEYS PRIOR TO THIS CASE HAVE HEARD OF IT, AND THAT IS WHY I HAVE A LOT OF TROUBLE WITH THE IDEA THAT IT IS EXCULPATORY MATERIAL THAT WOULD VIOLATE THE DEFENDANT'S DUE PROCESS RIGHTS IF IT WASN'T TURNED OVER. I MEAN, EVERYONE ELSE HAS SEEMED TO BE ABLE TO LITIGATE THEIR CASES AND DEFEND THEIR CLIENTS WITHOUT THE BENEFIT OF THIS KIND OF MATERIAL, EXCEPT THE DEFENDANT, MR. SIMPSON.

THE COURT: WELL, LET ME TELL YOU WHAT I FORESEE, THOUGH. I FORESEE CROSS-EXAMINATION AS TO THE CHAIN OF CUSTODY AND INTEGRITY OF THE EVIDENCE DURING THE TESTING PROCESS AND THEN ASKING THE PERSONS INVOLVED, PRIMARILY THE CRIMINALISTS FROM LAPD, SID, TO EXPLAIN THE CHAIN OF CUSTODY BASED UPON THESE DOCUMENTS, WHICH ARE PROBABLY UNINTELLIGIBLE TO THE AVERAGE HUMAN BEING.

MR. GOLDBERG: WELL, YOU KNOW, I THINK THEY ARE ALSO -- THE APIMS DOCUMENT IS ALSO UNINTELLIGIBLE TO THE CRIMINALIST BECAUSE IT ISN'T THE SYSTEM THEY USE IN-HOUSE. WHAT I WAS TRYING TO FIND OUT ABOUT THE SETS SYSTEM, YOUR HONOR, BECAUSE I NEVER REALLY HEARD OF IT OR KNEW THAT SUCH A SYSTEM EXISTED, SO WHEN I WAS TRYING TO LEARN A LITTLE BIT ABOUT IT AND HOW IT WORKED, I LEARNED THAT MANY OF THE CRIMINALISTS DON'T KNOW EXACTLY HOW SETS WORKS EITHER. THEY KNOW WHAT THEY DO TO IT AND HOW THEY PUT BAR CODES IN, BUT THEY DON'T HAVE A LOT UNDERSTANDING AS TO WHAT HAPPENS TO THE INFORMATION ONCE IT IS IN THE COMPUTER. IT REALLY ONLY SERVES ONE PERSON. IF YOU ARE A CRIMINALIST AND YOU WANT TO KNOW WHERE WITHIN THE LABORATORY I CAN FIND THIS BOX AT ANY GIVEN TIME, BECAUSE REMEMBER IT GOES TO BOXES, NOT ITEM NUMBERS, YOU CAN USE THE SETS SYSTEM TO DO THAT. SO I DON'T KNOW HOW THEY COULD CROSS-EXAMINE THEM REALLY EFFECTIVELY ABOUT SOMETHING THAT THEY HAVE VERY LITTLE KNOWLEDGE ABOUT. WHAT THEY NEED TO DO IS THE SAME THING THAT WE DID IN THIS CASE.

THE COURT: BUT I SUSPECT THEIR WHOLE GOAL IS JUST TO SHOW THAT THERE IS NO COHERENT INVENTORY SYSTEM.

MR. GOLDBERG: BUT THERE IS.

THE COURT: I'M JUST SAYING THAT THAT IS GOING TO BE THEIR GOAL. WHETHER OR NOT THAT IS TRUE OR NOT IS FOR THEM TO DECIDE.

MR. GOLDBERG: WHAT THE DEFENSE HAS TO DO IS WHAT ANYONE WOULD HAVE TO HAVE DONE BEFORE THE ADVENT OF COMPUTERS, AND EVIDENTLY THIS IS REASONABLY NEW. I DON'T THINK THAT IT HAS BEEN AROUND --

THE COURT: ALL RIGHT.

MR. GOLDBERG: -- FOR TEN YEARS.

THE COURT: DO YOU FEEL COMFORTABLE, THOUGH, THAT I UNDERSTAND THE PROSECUTION POSITION AS TO NOW THAT YOU HAVE TURNED OVER THESE COMPUTER PRINTOUTS, THAT THAT IS THE END OF YOUR OBLIGATION?

MR. GOLDBERG: OKAY. THANK YOU, YOUR HONOR.

THE COURT: OKAY.

MR. GOLDBERG: I WILL MOVE ON TO THE "L" NUMBERS, IF I MIGHT.

THE COURT: SURE.

MR. GOLDBERG: THIS IS -- SEEMS TO BE TYPICAL OF MANY OF THE DEFENSE ALLEGATIONS OF PROSECUTORIAL NON-DISCLOSURES OF INFORMATION IN THE SENSE THAT THEY DON'T GIVE THE COURT ANY SPECIFICS, THEY JUST SAY WE GOT A BUNCH OF "L" NUMBERS, NEW "L" NUMBER, AND THERE IS A DISCOVERY VIOLATION, WE WANT A SANCTION, WITHOUT SPECIFYING WHAT, IF ANYTHING, IS NEW, WHAT IS STARTLING ABOUT THESE THINGS, WHAT ARE -- WHICH ONE OF THESE, IF ANY, COME WITHIN THE DEFINITION THAT WE HAVE JUST TALKED ABOUT IN TERMS OF EXCULPATORY EVIDENCE OR WITHIN THE CALIFORNIA PENAL CODE, BECAUSE AGAIN, WE ARE TURNING OVER STUFF THAT WE REALLY IN MY VIEW IN MANY I SENSES DON'T HAVE ANY OBLIGATION TO TURN OVER. WE HAVE KIND OF TAKEN THE TACT THAT IT IS NOT REQUIRED BY THE CONSTITUTION OF EMPTYING OUT OUR CASE FILE AND NOW THEY WANT TO PENALIZE US FOR DOING THIS. WHAT HAPPENED HERE, YOUR HONOR, WAS WITH RESPECT TO A LARGE NUMBER OF THESE "L" NUMBERS, GREG MATHESON, WHO IS ONE OF THE SUPERVISORS AT THE SCIENTIFIC INVESTIGATION DIVISION AND ALSO A WITNESS IN THIS CASE, WAS GOING THROUGH THE MATERIAL THAT WE HAVE ALREADY TURNED OVER AND RECOGNIZED, AS WE HAD EARLIER ON, THAT WHEN "L" NUMBERS WERE ASSIGNED INITIALLY WAY BACK WHEN, THEY WERE ONLY ASSIGNED TO THE FACE PAGE OF A PARTICULAR DOCUMENT SO THAT YOU MIGHT HAVE A TWELVE-PAGE DOCUMENT WITH ONLY THE FACE PAGE HAVING L-115, FOR EXAMPLE, AND 116 WOULD BE A DOCUMENT THAT WAS 16 PAGES LATER, AGAIN BEING A FACE PAGE. SO IN THE INTERESTS OF COMPLETENESS AND HAVING SOME WAY OF BEING ABLE TO PROVE IF WE NEEDED TO, THAT THE DEFENSE HAD A PARTICULAR DOCUMENT, SINCE THEY FREQUENTLY COME UP TO US AND SAY WE NEVER GOT THIS, WE NEVER GOT THIS, AND THEN WE CAN GO BACK TO OUR RECORDS AND PROVE THAT THEY DID, WHAT HE DID IS HE REISSUED, RENUMBERED AND REISSUED MANY OF THESE PAGES THAT THE DEFENSE ALREADY HAD. THAT REISSUING WAS FROM PAGE L-579 TO 715, SO AS TO THOSE ITEMS OF THESE ALLEGED 300 ODD PAGES THAT THE DEFENSE SAYS OR CLAIMS THEY HAVE THAT ARE NEW OR UNACCOUNT -- PREVIOUSLY UNACCOUNTED FOR, MANY OF THOSE I WOULD ASSUME FALL INTO THAT CATEGORY. AS TO THE REMAINDER OF THE ITEMS, ACCORDING TO WHAT I HAVE BEEN ABLE TO DETERMINE, THEY ARE ALL RELATIVELY RECENT MATERIALS AND MANY OF THOSE MATERIALS DEALT WITH RECORDS THAT WERE COMPILED, ITEMIZING THE NUMBERS BEFORE WE SENT THEM OUT TO ALBANY FOR THE DEFENSE INSPECTION, ITEMIZING THEM AFTER THEY CAME BACK. THERE WERE NOTATIONS AS TO THE LABORATORY VISIT THAT OCCURRED ON SATURDAY, I BELIEVE THAT WAS THE 3RD OR THE 4TH OF THIS MONTH. THERE WERE MANY MATERIALS, MANY OF THESE MATERIALS NOT FALLING WITHIN ANY OF THE PROVISIONS OF THE DISCOVERY LAW, WHICH AS THE COURT IS FAMILIAR, BASED UPON OUR LAST DISCUSSIONS AND THE DISCUSSION OF PARTICULARLY HINES VERSUS SUPERIOR COURT, MAY INCLUDE NOTES, PLUS IT WOULD INCLUDE NOTES OF LABORATORY ANALYSIS, COMPARISONS, OBSERVATIONS, TESTING, AND THE LIKE. AND MANY OF THESE THINGS WERE CHRONOLOGICAL REFERENCES TO EVENTS THAT TOOK PLACE THAT HAVE NOTHING TO DO WITH TESTING OR ANALYSIS OF EVIDENCE, KINDS OF THINGS THAT COME WITHIN CALIFORNIA CASE LAW THAT REQUIRES DISCLOSURE OF CERTAIN NOTES UNDER PROPOSITION 115. SO I THINK THAT THE BURDEN IS REALLY ON THE PARTY THAT IS MAKING THE ALLEGATION OF DISCOVERY ABUSE TO GO THROUGH, TO ITEMIZE THE SPECIFIC PAGE NUMBERS THAT THEY CLAIM THAT THEY DIDN'T HAVE AND TO TRY TO ARTICULATE TO THE COURT WHAT THESE ARE, WHY THEY ARE IMPORTANT, WHY THERE HAS BEEN A DISCOVERY VIOLATION, SO THAT THE COURT HAS SOME BASIS UPON WHICH TO MAKE A DECISION ON THAT ISSUE. I WOULD JUST LIKE BRIEFLY, I DON'T THINK THAT THE DEFENSE IS ASKING FOR ANY RELIEF ON THIS RIGHT NOW, TO MENTION THE ISSUE OF THE BINDLE OF HAIR AND FIBER. I DID NOT KNOW ANYTHING ABOUT THAT ISSUE UNTIL IT WAS RAISED HERE, BUT WHAT I CAN TELL THE COURT IS THAT THE PROCEDURE THAT THE LOS ANGELES POLICE DEPARTMENT USED IS THAT THEY PHOTOGRAPHED THE EVIDENCE BEFORE IT CAME -- BEFORE IT WENT OUT AND THEN PHOTOGRAPHED AFTER IT CAME BACK. OF COURSE THAT HAS PRODUCED AN ENORMOUS NUMBER OF PHOTOGRAPHS, HUNDREDS AND HUNDREDS OF PHOTOGRAPHS, WHICH THE DEFENSE HAS, BUT THAT SHOULD BE ABLE TO DISPOSE OF THIS KIND OF ALLEGATION. I'M NOT SURE THAT THE DEFENSE IS ASKING FOR ANY FORM OF RELIEF ON THIS AT THIS TIME. MAYBE THEY ARE JUST ANNOUNCING IT FOR WHATEVER PRESS VALUE THEY FEEL IT HAS, BUT I DO BELIEVE THAT THE COURT SHOULD SUMMARILY DENY THE DEFENSE CLAIMS OF DISCOVERY ABUSES REGARDING THE APIMS AND SETS MATERIALS AND ALSO THE NEW "L" NUMBERS.

THE COURT: ALL RIGHT. WHAT ABOUT THE COMMENT REGARDING THE 283 PAGES OF SHOE EVIDENCE AND REPORTS FROM THE FBI?

MR. GOLDBERG: THAT WAS SOMETHING THAT MISS LEWIS ALSO LOOKED INTO.

MS. LEWIS: I WILL STAND UP AND TALK ABOUT THAT, WITH THE COURT'S PERMISSION.

THE COURT: ALL RIGHT.

MS. LEWIS: YOUR HONOR, THESE MATERIALS ARE ALMOST EXCLUSIVELY REPETITIVE COPIES OF A FORM LETTER ESSENTIALLY THAT WAS SENT FROM THE FBI, I BELIEVE, TO VARIOUS SHOE MANUFACTURERS AROUND THE COUNTRY. SO IT IS CORRESPONDENCE BASICALLY AND IT IS OTHER TYPES OF MEMOS AND CORRESPONDENCE FROM THIS EXPERT WHO WE WILL BE CALLING, BUT IT IS CORRESPONDENCE, IT IS NOT MATERIALS, WHICH ARE DISCOVERABLE, AS MR. GOLDBERG HAS JUST TALKED ABOUT, IN TERMS OF WHAT MATERIALS ARE DISCOVERABLE. THESE WERE THINGS --

THE COURT: MR. BODZIAK'S MATERIALS?

MS. LEWIS: YES, YES.

THE COURT: ALL RIGHT.

MS. LEWIS: HE BASICALLY CLEANED OUT HIS FILES. MR. GOLDBERG ALLUDED TO US CLEANING OUT CASE FILES. IT IS A SIMILAR ANALOGY. HE, AFTER FINALLY COMPLETING HIS REPORTS, AND I DON'T WANT TO REPRESENT THEY ARE TOTALLY COMPLETE BECAUSE THEY MAY NOT BE, BUT IN TERMS OF COMPLETING THE REPORTS THAT HAVE BEEN DONE TO DATE AND THE ANALYSES THAT HAVE BEEN DONE TO DATE, THESE WERE THE PRIORITY, THAT IS WHAT HE SOUGHT TO FINISH ON AND HE DID.

HE GOT THOSE OUT AND THEN HE WENT FAR BEYOND WHAT THE DEFENSE EVEN ASKED FOR IN THEIR RECENT LETTER WHICH REQUESTED MATERIALS FROM MR. BODZIAK OR AGENT BODZIAK, AND THAT IS CORRESPONDENCE, AND VIRTUALLY EVERYTHING HE HAD IN HIS FILES, SO AGAIN, WE TURNED OVER, AS IS MY POSITION AS WELL, FRANKLY, THAT WE TURNED OVER MATERIALS WHICH ARE NOT REQUIRED UNDER THE DISCOVERY LAWS. AND WE HAVE BEEN ESPECIALLY FORTHRIGHT IN THIS CASE FROM THE BEGINNING AND THAT WAS A DECISION MADE FROM THE GET GO, TO DO THAT, BUT AGAIN, IT IS A SIMILAR SITUATION WHERE THESE ARE LETTERS AND CORRESPONDENCE AND THINGS THAT ARE NOT DISCOVERABLE UNDER THE DISCOVERY LAWS THAT WE TURNED OVER ANYWAY, AND SO CERTAINLY WE SHOULD NOT BE SANCTIONED FOR TURNING OVER WHAT WE DID NOT HAVE TO TURN OVER. THE DEFENSE SHOULD BE GRATEFUL THAT THEY HAVE RECEIVED THIS INFORMATION AND EARLY BEFORE THE EXPERT TESTIFIED. YOUR HONOR, I WANT TO MENTION THAT I DID TALK TO DETECTIVE LUPER. HE WILL BE HERE AT 8:30 IN THE MORNING. HE HAS SPOKEN WITH MR. FORD, THE ONE THAT ACTUALLY DID THE VIDEOTAPE. HE WILL BE HERE. WE HAVE NOT YET REACHED THE SUPERVISOR BECAUSE HE IS OUT DOING SOMETHING WORKWISE, SO WE SHOULD CERTAINLY BE ABLE TO REACH HIM AS WELL.

AND IT ALSO OCCURRED TO ME, BACK TO THE VIDEOTAPE FOR A MOMENT, THE BLOOD ON THE CARPETING WOULD ALSO BE FOR LIABILITY PURPOSES. THAT WOULD BE THE REASON.

THE COURT: BLOOD ON THE FOYER.

MS. LEWIS: WHATEVER. IT WOULD BE FOR LIABILITY PURPOSES SO THAT THEY COULDN'T LATER CLAIM THAT WHATEVER MATERIAL THAT IS IN THE FOYER OR PAINT, I FORGET WHERE THIS BLOOD IS, FRANKLY, SO THAT IT WOULDN'T HAVE BEEN SOMETHING THAT THE LAPD DAMAGED.

THE COURT: I THINK THE ARGUMENT IS GOING TO BE, THOUGH, THAT WHAT TIME, WHEN, WHO WAS THERE WHEN IT WAS COLLECTED, AND IF IT IS STILL THERE AT 2:30 IN THE AFTERNOON OR 3:30, DEPENDING ON WHAT TIME --

MS. LEWIS: I HAVE IT THROUGH HEARSAY, BECAUSE I DIDN'T ASK DETECTIVE LUPER MYSELF, I SHOULD HAVE, THAT THIS WAS ALL DONE AFTER THE SEARCH WARRANT WAS EXECUTED, BUT WE ALSO KNOW THAT IN THE MORNING WITH CERTAINTY.

THE COURT: OKAY. MR. SCHECK, DO YOU WANT TO TELL ME A LITTLE BIT MORE ABOUT THE BINDLE, THE LOST BINDLE?

MR. SCHECK: YEAH.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: THE -- MR. HODGMAN AND MR. YOCHELSON HAVE BEEN DEALING WITH IT. MY UNDERSTANDING IS THAT THEY ACTUALLY HAVE PHOTOGRAPHED THE RETURN OF THE BINDLE, SO IT WAS BACK HERE AND THEY AT THIS POINT IN TIME HAVE LOST IT, SO I THINK THAT IS A PRETTY SIMPLE MATTER. WITH RESPECT TO THE "L" NOTES, I THINK THAT MR. GOLDBERG'S ARGUMENT ADMITS TOO MUCH. FIRST OF ALL, THE "L" NOTES WERE GIVEN TO US OUT OF ORDER IN THE FIRST PLACE. IN OTHER WORDS, WE WOULD GET A CRIME SCENE CHECKLIST FROM MR. FUNG AND YOU WOULD FIND ONE PAGE IS L-33 AND THE OTHER ONE IS 576 AND THAT IS THE WAY WE WERE RECEIVING THINGS IN THIS CASE, AND NOT GREAT COPIES EITHER. THAT IS -- AND YOU KNOW, IT IS ANNOYING BECAUSE I WISH I HAD A NICKEL FOR EVERY TIME MISS CLARK GOT UP AND SAID EVERYTHING WAS BEING TURNED OVER, BUT LET'S -- LET'S MOVE ON TO THE LEGAL ISSUE. UNITED STATES VERSUS AGURS WAS OVERRULED. UNITED STATES VERSUS BAGLEY IS THE LAW WITH RESPECT TO MATERIALITY. AND THE DIFFERENCE BETWEEN BAGLEY AND AGURS ON THE ISSUE OF MATERIALITY IS SIGNIFICANT BECAUSE IN BAGLEY THE COURT POINTS OUT THAT MATERIALITY SHOULD BE DETERMINED FROM THE POINT OF VIEW OF WHAT THE DEFENSE WANTS TO DO WITH SOMETHING, SOME SUPPRESSED EVIDENCE, WHAT ITS THEORY OF THE CASE IS, WHAT IT NEEDED AT A PARTICULAR TIME. IT IS NO SECRET THAT THE CHAIN OF CUSTODY DOCUMENTS THAT WE ARE SPECIFICALLY ASKING FOR ALL ALONG HAS BEEN AN ESSENTIAL ELEMENT OF THE DEFENSE, AS THE COURT FROM ITS COMMENTS REVEALED. THERE IS NO EXCUSE UNDER THE UNITED STATES CONSTITUTION TO CONTINUALLY REFRAIN FROM TURNING OVER MATERIAL THAT TRACKS THE CHAIN OF CUSTODY OF THESE DOCUMENTS AND IS RELEVANT. IT DOESN'T STRIKE ME AS A PARTICULARLY PERSUASIVE ARGUMENT THAT THE CRIMINALISTS AT SID HAVE NO IDEA HOW THE SYSTEM WORKS WHEN IT IS DESIGNED TO ASSIST THEM IN TRACKING DOCUMENTS AND CREATING A CHAIN OF CUSTODY. THAT ARGUMENT AGAIN ADMITS MORE THAN I THINK MR. GOLDBERG INTENDED AND IT IS FOR THAT VERY REASON THAT THESE DOCUMENTS WERE IN CHAOS TO TURN THESE OVER SO LATE SO THAT IT BECOMES A NIGHTMARE FOR THE DEFENSE TO TRY TO FIGURE OUT WHICH ITEM WAS TESTED AT WHAT PARTICULAR POINT IN TIME AND WHO HAD ACCESS TO IT IS SANDBAGGING. WE HAVE BEEN ASKING FOR THIS FOR A LONG TIME.

THE COURT: ALL RIGHT. MR. SCHECK, LET ME BRING US TO A CLOSURE IN OUR DISCUSSION. FIRST OF ALL, AS TO THE LABORATORY NOTES, THE "L" NOTES THAT YOU ARE DISCUSSING, THE FACT THAT THESE WERE TURNED OVER TO YOU AT THIS POINT RECENTLY AND THIS COMMENT ALSO GOES TO THE FBI NOTES REGARDING THE SHOES, WHAT I THINK YOU NEED TO DO IS PRESENT TO ME SOMETHING THAT INDICATES THAT THESE ITEMS ARE MATERIAL, THAT THEY SHOULD HAVE BEEN TURNED OVER AND THAT THERE IS SOME PREJUDICE TO YOU FROM HAVING NOT GOTTEN THEM RECENTLY, BECAUSE IF THEY ARE AS REPRESENTED, THEY SOUND RELATIVELY INNOCUOUS.

MR. SCHECK: OH, NO. I MEAN, I TRIED TO BE SPECIFIC. I WILL ASK MR. BLASIER TO ADDRESS IT, I WILL PUT THIS IN WRITING, BUT JUST SO YOU KNOW, I ONLY ADDRESSED MR. MATHESON'S AS CHRONOLOGY. MR. MATHESON TESTIFIED AS A WITNESS IN THE SPLIT HEARING. HE, AS YOU RECALL, HAD GREAT DIFFICULTY REMEMBERING EXACTLY WHAT THE DISCUSSIONS WERE ON WHEN EVIDENCE WAS GOING TO BE SENT OUT FOR DNA TESTING AND WHO DID WHAT AND WHEN.

THE COURT: I UNDERSTAND THAT, COUNSEL.

MR. SCHECK: WELL, HE CREATED A CHRONOLOGY. HE WAS DOING A STEP-BY-STEP CHRONOLOGY THAT WASN'T TURNED OVER WHEN HE TESTIFIED AND IT WASN'T TURNED OVER SUBSEQUENTLY. IT WAS ONLY TURNED OVER LAST WEEK. PLAINLY MATERIAL AND I WILL LAY THAT OUT FOR YOU.

THE COURT: ALL RIGHT.

MR. SCHECK: MR. BLASIER CAN ADDRESS YOU NOW, OR IF YOU WANT IT IN WRITING, TO THE ISSUE OF THE SHOES.

THE COURT: BOTH AS TO THE LAB PAGES AND THE ISSUE OF THE SHOES, I WANT THAT IN WRITING.

MR. BLASIER: ALL RIGHT.

THE COURT: AS TO THE LOST BINDLE, LET'S HAVE MR. HODGMAN LOOK INTO THAT.

MS. LEWIS: YES. I ALREADY STARTED THAT, YOUR HONOR.

THE COURT: ALL RIGHT. AS TO THE VIDEOTAPE, WE WILL START TOMORROW MORNING AT 8:30. I EXPECT ALL PARTIES -- INTERESTED PARTIES TO BE HERE AT 8:30. AS TO THE APIMS AND SETS MATTERS, I THINK I AGREE WITH MR. GOLDBERG'S POSITION THAT THE OBLIGATION OF THE PROSECUTION IS TO MAKE WHATEVER IS AVAILABLE AVAILABLE, WHICH THEY HAVE DONE, AND THEY HAVE NO FURTHER OBLIGATION TO INTERPRET OR SIMPLIFY.

MR. SCHECK: OUR POSITION IS WHEN THEY MADE IT AVAILABLE; TOO LATE. THAT IS THE POINT.

THE COURT: WELL, NOW YOU RAISE THAT ISSUE.

MR. SCHECK: NO, NO. I SAID THAT AT BEGINNING. THE POINT IS NOT -- THE APIMS RECORDS ARE UNINTELLIGIBLE. OUR POINT FROM THE BEGINNING IS THIS: WE HAVE BEEN ASKING FROM THE BEGINNING OF THIS CASE FOR THE CHAIN OF CUSTODY RECORDS, THE COMPUTERIZED CHAIN OF CUSTODY REPORT.

THE COURT: THEY HAVE GIVEN IT TO YOU.

MR. SCHECK: WELL, THEY GAVE IT TO US --

THE COURT: MR. SCHECK, IF IT IS UNINTELLIGIBLE, THAT SOUNDS LIKE A TERRIFIC THING TO ME, FROM YOUR POINT OF VIEW, TO CROSS-EXAMINE ON.

MR. SCHECK: NO. THE PROBLEM PARTICULARLY WITH THE SETS RECORD IS THAT THEY REFRAINED FROM GIVING IT TO US UNTIL I THINK ABOUT THREE WEEKS AGO. NOW, THAT IS WRONG. THAT IS A VIOLATION OF THEIR DISCOVERY OBLIGATIONS. IT IS PLAINLY RELEVANT TO OUR DEFENSE.

THE COURT: MR. SCHECK, MR. CHECK, YOUR ARGUMENTS TO ME HAVE NEVER MENTIONED THAT YOU ARE COMPLAINING ABOUT IT, THAT YOU JUST GOT IT. YOU ARE COMPLAINING ABOUT WHAT IT SAYS AND HOW YOU INTERPRET IT.

MR. SCHECK: NO.

THE COURT: THIS IS THE FIRST TIME YOU ARE TELLING ME --

MR. SCHECK: NO, NO, NO, NO, YOUR HONOR.

THE COURT: YES, YES, YES.

MR. SCHECK: THEN I DID NOT ARTICULATE IT TO YOU CLEARLY ENOUGH. LET ME BE CLEAR. MY ARGUMENT WAS IT WAS TURNED OVER LATE AND THE SETS RECORDS IN CONJUNCTION WITH THE OTHER LABORATORY MATERIALS REQUIRE EXHAUSTIVE CROSS-REFERENCING. I THINK THAT IS WHAT I SAID. AND BY GETTING IT LATE WE HAVE BEEN PREJUDICED BECAUSE WE STILL ARE TRYING TO DO THAT AND WE SHOULDN'T HAVE THAT BURDEN AT THIS POINT IN TIME, WE SHOULD HAVE HAD IT MONTHS AGO SO WE COULD FURTHER OUR INVESTIGATION. THAT IS THE PROBLEM.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

THE COURT: ALL RIGHT.

MR. SCHECK: OUR LETTER TO THE COURT SAYS: "FINALLY, WE CONTINUE TO BE PREJUDICED BY THE PROSECUTION'S FAILURE TO PRODUCE IN A TIMELY FASHION COMPUTERIZED RECORDS FROM SID AND LAPD." THAT IS THE PROBLEM. THAT IS THE PROBLEM. OF COURSE IT IS AN AGGRAVATING FACTOR THAT THEY TURNED THEM OVER AND THE APIMS RECORDS ARE --

THE COURT: SO WHAT REMEDY DO YOU WANT?

MR. SCHECK: I WANT AN INSTRUCTION. I WANT AN INSTRUCTION TO THE JURY THAT THE PROSECUTION VIOLATED ITS DISCOVERY OBLIGATIONS BY FAILING TO TURN OVER THESE CHAIN OF CUSTODY RECORDS IN A TIMELY FASHION AND THAT THEY CAN CONSIDER THAT WITH RESPECT TO THE CREDIBILITY OF THE PROSECUTION'S WITNESSES ON THE ISSUE OF CHAIN OF CUSTODY.

THE COURT: ALL RIGHT. ALL RIGHT. WE WILL STAND IN RECESS. 8:30.

MR. NEUFELD: JUDGE, ONE THING WE NEED, IF I MAY, VERY, VERY BRIEFLY. WE STILL NEED TO KNOW THE LIST OF WITNESSES FOR THE NEXT THREE DAYS AS PER THE COURT'S INITIAL ORDER, ESPECIALLY NOW BECAUSE THERE ARE DIFFERENT ATTORNEYS THAT ARE HANDLING DIFFERENT WITNESSES.

THE COURT: THAT IS SOMETHING THAT IS SUPPOSED TO BE EXCHANGED INFORMALLY BETWEEN THE ATTORNEYS.

MR. GOLDBERG: YOUR HONOR, DOES THE COURT'S RULING ON THE APIMS AND SETS MATERIAL STILL STAND?

THE COURT: YES.

MR. GOLDBERG: CAN WE JUST ASK THE COURT'S PLEASURE ABOUT SCHEDULING ISSUES?

THE COURT: ALL RIGHT.

MR. GOLDBERG: IN TERMS OF TOMORROW, I THINK THERE WERE STILL ISSUES THAT THEY WANTED TO RAISE, THE DEFENSE SAID, ABOUT THE BOARDS THAT WE INTENDED TO USE. I WANTED TO KNOW WHEN THAT WAS GOING TO BE BROUGHT UP.

THE COURT: BRING THEM HERE AT 8:30.

MR. GOLDBERG: SO THE COURT WANTS TO DO THAT BEFORE THE WITNESS IS CALLED?

THE COURT: RIGHT.

MR. GOLDBERG: ALL RIGHT.

THE COURT: THAT IS THE NORMAL PROCEDURE.

MR. GOLDBERG: I JUST WANTED TO MAKE SURE.

MR. NEUFELD: JUDGE, MR. SIMPSON WOULD LIKE AN OPPORTUNITY TO SEE THE TAPE. MAY HE STAY HERE AND USE YOUR EQUIPMENT TO VIEW IT?

THE COURT: WE DON'T HAVE IT HOOKED UP TO THE MONITOR RIGHT NOW. I EXCUSED MISS FITZPATRICK. SHE WILL BE HERE TOMORROW MORNING AT 8:30. 8:30 SESSION IS NOT OPEN TO THE PUBLIC, JUST AN INFORMAL SESSION. WE WILL MAKE THAT AVAILABLE.

MR. NEUFELD: THANK YOU.

(AT 4:25 P.M. AN ADJOURNMENT WAS TAKEN UNTIL, FRIDAY, MARCH 31, 1995, 8:30 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )
)
) VS. ) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

THURSDAY, MARCH 30, 1995
VOLUME 117

PAGES 20973 THROUGH 21138, INCLUSIVE
(PAGES 21005 THROUGH 21018, INCLUSIVE, SEALED)
(PAGES 21139 THROUGH 21153, INCLUSIVE, SEALED)

APPEARANCES: (SEE PAGE 2)

JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378 OFFICIAL REPORTERS

APPEARANCES:

FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA C. BODIN, HANK M. GOLDBERG,
ALAN YOCHELSON AND DARRELL S.
MAVIS, DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012

FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067

JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010

GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
ROBERT D. BLASIER, ESQUIRE

ALSO PRESENT: KELLI SAGER, ESQUIRE
JANET LEVINE, ESQUIRE
MAYA HAMBURGER, ESQUIRE

I N D E X

INDEX FOR VOLUME 117 PAGES 20973 - 21138

-----------------------------------------------------

DAY DATE SESSION PAGE VOL.

THURSDAY MARCH 30, 1995 A.M. 20973 117
P.M. 21019 117

-----------------------------------------------------

PROCEEDINGS

MOTION ON DEFENSE OBJECTION RE DNA 21019 117
EVIDENCE (RESUMED)

LEGEND:

MS. CLARK - MC
MR. HODGMAN - H
MR. DARDEN D
MR. KAHN - K
MR. GOLDBERG - GB
MR. GORDON - G
MR. SHAPIRO - S
MR. COCHRAN - C
MR. DOUGLAS - CD
MR. BAILEY - B
MS. CHAPMAN - SC
MR. UELMEN - U
MR. SCHECK - BS
MR. NEUFELD - N
-----------------------------------------------------

CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

SILVA, SUSAN 20983D 20996SC 21000D 117

-----------------------------------------------------

ALPHABETICAL INDEX OF WITNESSES

PEOPLE'S
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

SILVA, SUSAN 20983D 20996SC 21000D 117

EXHIBITS

PEOPLE'S FOR IN EXHIBIT IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.

156 - POSTERBOARD 20986 117
ENTITLED "360 NORTH ROCKINGHAM"

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