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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is present before the court with his counsel, Mr. Douglas, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Darden. The jury is not present. All right. Counsel, the record should reflect that yesterday afternoon the court met informally with counsel here in the courtroom. And the court conducted an informal evidentiary proceeding concerning the exhibits that have been offered by the Defense so that we could hopefully streamline our proceeding here this morning. All right. Are both sides ready to proceed with their evidence list? Mr. Darden?

MR. DARDEN: Not exactly.


MR. DARDEN: As the court is aware, I have some objections to certain specific items. Mr. Goldberg and Mr. Clarke--

THE COURT: What is "Not exactly"?

MR. DARDEN: Well, we need Mr. Goldberg and Mr. Clarke for many of the others.


MR. DARDEN: I do have a few, a handful, which I am ready to discuss on the record.

THE COURT: Well, it could be more helpful to me if we could do these in order.

MR. DARDEN: I would agree.

THE COURT: Since I've got them all here and organized in numerical order.

MR. DARDEN: Can we send someone upstairs to arouse them and get them down here?

THE COURT: We are late getting started already as it is.

MR. DARDEN: I was here.

THE COURT: All right. And I noted this morning that the court had not been served with a copy of your writ. Is that an oversight?

MR. DARDEN: I think it is being filed right now.

THE COURT: All right. Well, Mr. Darden, which of these are you prepared to go forward on? How about the first page? Can we at least get started on the first page? All right. Let's start with the first page. Exhibits 1000 and 1001. My understanding, Mr. Douglas, is both of those are withdrawn by the Defense; is that correct?

MR. DOUGLAS: That's correct, your Honor.

(Deft's 1000&1001 = withdrawn)

THE COURT: All right. There is an objection to 1003 which is a photograph of the Defendant and his daughter at the reception. It is an 8-by-10 blow-up. Mr. Darden, my recollection is that you raised the objection to this.

MR. DARDEN: That's correct, your Honor.

THE COURT: What is your objection?

MR. DARDEN: Same as before, your Honor. This is a photograph in which the Defendant is posing with his daughter. This photograph lacks angles any degree of trustworthiness or reliability. He is posing for a photograph and so to suggest to the jury that this photograph is an accurate depiction of the Defendant's demeanor throughout the evening of June 12th, I would suggest is misleading. It be misleading to the jury, so there is a 352 objection to that photograph.

THE COURT: Mr. Douglas.

MR. DOUGLAS: Your Honor, I thought that the Prosecution was making a foundational objection as their papers to me suggested. Clearly Denise Brown, Tia Gavin, Kato Kaelin, laid the proper foundation that that photograph fairly and accurately reflected a particular review at that time of what both were wearing. There was an added focus from that picture on Mr. Simpson's hand, confirming that there was no cut on his hand in that picture, through Mr. Kaelin. I think it is in fact admissible.

THE COURT: All right. I think there is an adequate foundation. Clearly it is a photograph of a photograph of a father with his daughter at a happy family occasion. I don't think anybody would take it as anything else. But it does have probative value as to the condition of Mr. Simpson's left hand and it does have some relevance as to what he was wearing that evening, so the objection will be overruled. All right. No. 1010.

MR. SCHECK: Your Honor, may I have permission to plug into the computer?

THE COURT: I'm sorry? You may. The record should reflect we have been joined by Mr. Goldberg. The next objection is 1010 which is Officer Riske's report.

MR. DARDEN: There is a hearsay objection to that.

THE COURT: All right. Mr. Douglas.

MR. DOUGLAS: It was testified to at page 14195 of the transcript to impeach. I would also argued that it is a statement of a party offered against a party and for those grounds there is an exception to the hearsay rule.

MR. DARDEN: Contrary to public opinion the LAPD is not a party to this lawsuit and it was used only for impeachment purposes; a small part of it, not in its entirety. The--any portion of it that was used for impeachment was read into the record. It is in the record. Counsel can certainly argue that in front of the jury. It is hearsay.

MR. DOUGLAS: I would also, your Honor, that it has sufficient guarantees of trustworthiness, which is the catchall exception to the hearsay rule, such since it was in fact a report it could even arguably, although I don't think a proper foundation was made, but clearly there can be no argument that it is a business record. It was prepared at or near the time of the events by one that was charged with that duty for purposes of accurately reflecting what he saw at that time. And I think for all of these grounds, under the catchall exception at least, it would be admissible.

THE COURT: All right. I will overrule the objection to the extent that it was used, a particular passage in this was used. That portion that was actually used as a prior inconsistent statement to impeach Officer Riske will be allowed. The remainder, however, the objection is sustained. All right. 1011, objection to this photograph which is an outtake from a videotape, from the, as I recall, what was it, American Journal?

MR. DARDEN: Yes. Can I look at that photograph briefly?


(Brief pause.)

THE COURT: And during the course of our discussions either counsel may ask to approach to look at the exhibit itself.

MR. DOUGLAS: Thank you, your Honor.

THE COURT: All right. Mr. Darden.

MR. DARDEN: We will withdraw our objection to that photograph.

(Deft's 1011 = withdrawn)

THE COURT: All right. No. 1016, page from the LAPD manual.

MR. DARDEN: Let me indicate this: I am now arguing exhibits that were admitted during witnesses that were examined by Miss Clark, so I need to take a look at that.

(Brief pause.)

THE COURT: Let me direct your attention to section 2346. This was a cross-examination of Detective Phillips regarding his obligations to notify the Coroner, so the concentration should be on 2346, section 2346. It is about mid-page.

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

MR. DARDEN: The objection to this document is hearsay, lack of foundation. It is subject to many different interpretations, as I recall from the testimony from the three homicide detectives in this case. It would be misleading.

MR. DOUGLAS: I think, your Honor, on transcript page 15011 to 12 Detective Phillips laid an adequate foundation for the introduction of this document. I think it was also used to impeach. It was also used as a business record. I think that all of those--also, your Honor, since it is a portion of the police manual, it certainly carries sufficient guarantees of trustworthiness so as to justify other grounds as an exception to the hearsay rule. For those reasons I would move for its admission.

THE COURT: All right. It will be admitted; however, only section 238.46 will be admitted. The remainder will be redacted. All right. 1017.

MR. DOUGLAS: Your Honor, excuse me. Would the court do the redaction or the clerk or should I do the redaction?

THE COURT: Your exhibit.

MR. DOUGLAS: Very well.

THE COURT: Mrs. Robertson has enough to do.

MR. DOUGLAS: I agree.

THE COURT: All right. Section 10250 health and safety code.

MR. DOUGLAS: Same grounds. Page 15018 of the transcript.

MR. DARDEN: Same objection.

THE COURT: All right. The objection will be overruled; however, the court will highlight section 10250 with a yellow highlighter directing the juror's attention to the portion that is relevant and I will draw an "X" through those sections that are not relevant to their consideration and save you the redaction problems. All right. That objection is overruled. All right. Next item is special order 21, LAPD special order 21.

MR. DARDEN: Same objection.

MR. DOUGLAS: Same response, your Honor. On pages 15018 of the transcript an adequate foundation was laid. It was used to impeach. It certainly is relevant. I think it also qualifies for a business record and it carries sufficient guarantees of trustworthiness.

MR. DARDEN: I would disagree that it was used to impeach. I think the officers testified they were aware of the--their obligations.

THE COURT: All right. That objection will be overruled. All right. No. 1019 and 1019-A. This is the--my recollection this is the tape-recorded conversation between Detective Heath--excuse me--Richard Heath and Detective Phillips.

MR. DOUGLAS: Yes, your Honor.

THE COURT: No, Mr. Willis, I'm sorry. Mr. Heath was the second phone call.

MR. DOUGLAS: I think the transcript involved both conversations as well. If the court will recall, it reflected Mr.--Detective Phillips' conversations with the Coroner on the first call and also his delayed second call. I think it very relevant. I think that Phillips was able to authenticate the actual conversation. It certainly goes to his state of mind. It certainly was used to impeach. I'm not sure of the court's practice in terms of which is the real evidence, if the document itself can go in or simply the tape. I will leave that to the court's discretion.

THE COURT: Mr. Darden.

MR. DARDEN: Consistent with case law, the transcript is not evidence. As for the tape-recording itself, it is hearsay. Detective Phillips was here to testify to having placed a phone call to the Coroner's office. I don't think it was used to impeach him at all. He told us what he said and what he did and why he did it and he told us the time, the time frame in which he did those things. This is hearsay, totally completely hearsay.

THE COURT: All right. My recollection is that it was used as a prior inconsistent statement, so the objection will be overruled. All right. No. 1020, statement of Detective Lange.

MR. DOUGLAS: Your Honor, is the court allowing 19-A?


MR. DARDEN: The transcript as well, your Honor?

THE COURT: The transcript and the tape but they have to be used together.

MR. DARDEN: The transcript isn't evidence.

THE COURT: The court has discretion to require the presence of a transcript of any tape-recording.

MR. DARDEN: There has been no attempt to make certain that the transcript is an accurate depiction or an accurate copy--

THE COURT: All right. But the court listened to the tape recording, had the transcript at the time it was played in court, and I make that finding now. All right. As to 1021.

MR. DARDEN: Can I look at the document? It is a 352 hearsay objection.

(Brief pause.)

MR. DOUGLAS: Your Honor, that document was used to--through Mr. Lange to impeach Detective Phillips. As the court will recall, there was the discussion of whether or not Lange had been informed that Mr. Simpson and his wife had been involved in past marital discord, whether or not Phillips had been told by Fuhrman that Fuhrman was aware of that discord and had been at the Simpson home on a prior occasion. Phillips had denied that ever occurring. We then used Lange's statement to impeach him.

MR. DARDEN: And that was read into the record and the witness was confronted with it and that is in the record. The police report is, nevertheless, hearsay, your Honor.

MR. DOUGLAS: I would appreciate the court's ruling that that portion that was used should be allowed, but the remainder redacted.

MR. DARDEN: Are we going to have a blank page then at the bottom of the page?

THE COURT: I'm sorry?

MR. DARDEN: Are we going to have a page, an eight-and-a-half-by-ten-inch page and then at the bottom of it have one sentence in it and everything is redacted? I think that is more than a little bit unfair. In any event, the witness testified to this, Judge, in front of the jury. The police report is hearsay.

(Brief pause.)

MR. DOUGLAS: Given events, your Honor, that have transpired since the introduction of that document, Mr. Fuhrman's credibility is very important. Whether or not there has been some sort of code of silence is a real issue the Defense has raised. The fact that Mr. Fuhrman's partner chose not to recall or did not recall a very important aspect which we think leads to an argument that there was a rush to judgment, the fact that another detective placed that in his report, are all pieces of evidence that are central to the puzzle that we are attempting to create or to make to demonstrate the code of silence, the rush to judgment, the possibility that others would say things under oath, even less than truthful, to protect one of their own.

MR. DARDEN: And counsel is going to ask the jury to speculate a number of things and paint all police officers with the same brush. And this is hearsay and it is prejudicial, given the apparent intended use of the document.

MR. DOUGLAS: I would say all argument we are offering against the Prosecution is prejudicial. That is not the test. The test is whether it is unduly prejudicial in light of the probative value. It is very probative that an officer wrote a report conflicting with the statement of another officer. It is very central to the case, given things that have transpired since the introduction of this document.

THE COURT: All right. The--in the second full paragraph there is a notation that Detective Phillips had advised Vannatter and Lange that Mr. Simpson and Nicole Brown Simpson had been embroiled in previous domestic violence situations, one of which resulted in Mr. Simpson's arrest. That was a statement that was inconsistent with the testimony here in court. Therefore, this second paragraph will be allowed; however, the hearsay objection to the remainder is sustained.

MR. DARDEN: Did the court just read a complete paragraph or just a partial of a paragraph?

THE COURT: I'm going to leave in the complete second paragraph. Second paragraph states as follows: "Upon arrival at the crime scene detectives were met by Detective III Ron Phillips, West L.A. Division homicide coordinator. Phillips stated that victim Brown was the ex-wife of O.J. Simpson, the well-known athlete/actor. Additionally. Phillips stated that Mr. Simpson and victim 1 had been embroiled in previous domestic violence situations, one of which"--"One of these resulting in the arrest of Mr. Simpson." That is the only relevant portion on this document with regards to that testimony. The remainder will be redacted. All right. 1023, notes of Mark Fuhrman.

MR. DARDEN: Hearsay.

MR. DOUGLAS: Reference was made at page 15123 and 24. I think they were used to impeach. I think it very--it could also qualify as a business exception. I believe Detective Fuhrman also adequately authenticated the accuracy of that report. I think it reflects his state of mind. I think it also carries sufficient guarantees of trustworthiness to justify its admissibility.

(Discussion held off the record between Defense counsel.)

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

THE COURT: I'm sorry, what is the--

MR. DARDEN: It is hearsay.

THE COURT: What is the hearsay objection to this--I mean exception?

MR. DOUGLAS: One, your Honor, it is being offered to reflect not necessarily the truth of the matter asserted, but that certain things were said. It is being offered, your Honor, to impeach. It is being offered to reflect the state of mind of the writer.

THE COURT: How does it reflect the state of mind?

MR. DOUGLAS: Because it talks about those things that he observed that he thought were important at the time that he was walking through the crime scene.

(Discussion held off the record between Defense counsel.)

MR. DOUGLAS: It is also, your Honor, being offered to establish--and to establish his frame of mind in terms of what he knew and when he knew it, which we may then use to dispute some of the representations that were made at the time, that perhaps there had been a gunshot wound to one of the victims, that there was some uncertainty or whether there was certainty as to the nature of the actual crime. It is also going to be very important when we attempt to argue the significance of the picture that he is pointing to and what was in his mind at that time.

(Discussion held off the record between Defense counsel.)

THE COURT: All right. This one I'll take under submission.

MR. DOUGLAS: I'm sorry?

THE COURT: This one I will take under submission, 1023.

THE COURT: All right. 1027, which is--this is the freeze frame of Mr. Fung holding a paper bag coming out of the location where Mr. Goldman's body was located. Mr. Rokahr appears in the photograph, as does Miss Mazzola and the two Coroners. Mr. Darden, are you familiar with this one?

MR. DARDEN: Yes. There is a 352 foundational objection, your Honor.

MR. DOUGLAS: I think the foundation was adequately laid by both Phillips--I think Fung also was capable of laying the proper foundation. I think it is also self-authenticating.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, may I see that for a second?

(Brief pause.)

MR. SCHECK: That is part of another video that is already in evidence.

MR. DARDEN: Part of another video we will be objecting to, given the nature of the lens used to take that video, which as the court is aware, this telescopic lens tends to condense space and distorts space as well. It will be misleading to the jury. It will give the jury the impression that there are many, many individuals stomping over the crime scene in a very shall very, very small area, which is not--

MR. DOUGLAS: Oh, I think--

MR. DARDEN: --necessarily the truth. As the court may recall, when I looked at that video you couldn't tell if people were on the sidewalk or in the crime scene. It wasn't until we saw other videos that we could actually determine how far and how much distance there actually was from different individuals. It is misleading.

MR. DOUGLAS: I think the Prosecution went through great pains to call other witnesses to attempt to rebut any suggestion that there are a lot of people stomping through the scene. The picture speaks for itself. The arguments of counsel go more to weight than to admissibility. It is in fact self-authenticating. It is not unduly misleading. I think that both sides will be capable to draw whatever conclusions they deem appropriate from the pictures, but certainly given the other testimony of other witnesses, Mr. Darden's concerns are not well-taken.

MR. DARDEN: They have never called a witness to explain to this jury the problems with space and distance in this video and in this photograph, Judge, so there is no evidence before the jury that will help them determine what the actual distances are between different objects and different individuals.

MR. DOUGLAS: If I am not mistaken, they called the photographer themselves, your Honor, who took the video from which this was drawn to talk about where he was, how he did it, whatever the distortions may have been, so the jury is apprised of those issues.

THE COURT: All right. But the issue depicted is Mr. Fung coming out of the area of Mr. Goldman's body holding the paper bag and that is the area and that is what it depicts, so the objection will be overruled. All right. 1029, this is the two-page fingerprint report.

MR. DARDEN: Could I see that, please?

(Brief pause.)

MR. DOUGLAS: I believe that is in through Aguilar.


MR. DOUGLAS: Correct.

MR. DARDEN: Was it marked twice?

THE COURT: It may have been. My recollection is toward the end when we got to Mr. Aguilar we went through that again.

MR. DOUGLAS: Correct.

MR. DARDEN: I think we marked a couple of fingerprint related documents with Mr. Aguilar.

THE COURT: It may be also 1323.

MR. DARDEN: If it is in fact 1323, I would like to keep the fingerprint documents together in sequence.

THE COURT: All right. We'll take this one under submission. My inclination is to sustain the objection to this, since it appears also to be--to appear as Defense exhibit 1323 for which there was no objection.

MR. DOUGLAS: We will compare them first, your Honor?

THE COURT: Yes. So remind me to come back to that one. All right. 1030.

MR. DOUGLAS: I believe this is also another document, your Honor, that was authenticated by Mr. Aguilar. Can I just see that?

THE COURT: Let's do this. We have two sets of these fingerprint documents. Let's compare those and see which one is which, so we will take those up later. Mrs. Robertson, remind us to look back at the fingerprint documents. All right. 1031, Coroner document. Objection is foundation.

MS. CLARK: Hearsay.

THE COURT: Mr. Douglas.

MR. COCHRAN: Submit, your Honor.

THE COURT: All right. Objection sustained. All right. 1036, photograph. Where does this appear in the transcript?

MR. DOUGLAS: Your Honor, at page 15886 and 87.

THE COURT: What was the testimony relevant to this?

MR. DOUGLAS: It focused on the issue of contamination, whether in fact that appeared to be Mr. Goldman's body, whether in fact there appeared to be a glove on the body. It was very central at that time to issues that we were raising as to the integrity of the crime scene and to show the lax--or the apparent lax manner in which some of the crime scene and the victims and the bodies and the evidence were handled.

MS. CLARK: There was no testimony to establish whose gloves they were, how they got on there. This was a photograph that pertained to the point in time when Ratcliffe and Jacobo were taking care of the bodies and Mr. Goldman's body was on a sheet and there was a pair of plastic gloves on his body. Whether or not that actually proved any contamination or transferred from one body to another was never established, never linked up with any of the appropriate witnesses.

MR. DOUGLAS: Oh, I think the jury was able to glean from the evidence, your Honor, that that--even the Prosecution's theory is not that that--those gloves were left by the killer in the case. Those were gloves that were consistent with the kind of gloves that we have seen in court that were worn by the criminalists. They are there on the body after the body has been moved, if I'm not mistaken. The body is on the walkway. Therefore it is clear, or at least we must give some belief, that the jury can extrapolate that those gloves were placed there by some police official. The fact that no one knows how they were there or would want to own up to why they were there is not surprising.

MS. CLARK: Your Honor, somebody will own up, if the Defense had decided to call the witness that would have been appropriate for that foundation. They never did. And they are asking the jury to speculate that something improper was done without ever having called the witness to establish that something improper was done.

THE COURT: Which photo did this come from?

MR. DOUGLAS: That is a photograph turned over to us by the Prosecution, your Honor.

THE COURT: It appears to be one of Mr. Rokahr's photographs and appears to have a frame stamp on it of 1:94.

MR. DOUGLAS: I mean, your Honor, I don't think that a foundation necessitates us proving whose plastic gloves are shown on Mr. Goldman's body when it is laying on the pavement. I think that the foundation that is necessary for the admissibility of that photograph is that this was a photograph on June 13th fairly and accurately reflecting the body as it was at some point in time.

THE COURT: All right. What was the page in the transcript?

MR. DOUGLAS: 15886 and 87.

THE COURT: All right. I will take a look at that.

MS. CLARK: What volume was that?

MR. DOUGLAS: I have page numbers; I don't have volumes.

THE COURT: Okay. Next one is report of Officer Vasquez, 1042.

MR. DOUGLAS: Submit it, your Honor.

THE COURT: I'm sorry.

MR. DOUGLAS: Submit it.

THE COURT: All right. Objection sustained. All right. 1043 is a videotape of the Bundy crime scene. Which videotape is this?

MS. CLARK: Is this the video done by some TV station?

THE COURT: That narrows it down.

MS. CLARK: No, actually it is narrow enough for me because I remember.

MR. DOUGLAS: If we can see 1043-A, B or C which are clips from a video.

THE COURT: Yeah. That will tell us which one it is.

(Brief pause.)

THE COURT: All right. Miss Clark, are you familiar with these?

MS. CLARK: Yes. Could I see them, your Honor?

(Brief pause.)

THE COURT: And Mr. Douglas, and Mr. Goldberg, you were part of our conversation yesterday about these videotapes as well. How do we propose to redact these to the portions that were used?

MR. DOUGLAS: Mr. Harris is currently doing that as we speak, your Honor, since he has been present during the playing of all our videos. He is familiar with all that has been played. We will then show them to Mr. Goldberg at the conclusion. As the court--by the way, your Honor, this was the video where there was a preliminary objection because we didn't know who the photographer was, and this was a 402 hearing with Lange and there were strenuous objections at those times. We had the hearing. Lange laid the foundation. The court overruled the objection and it was then played for the jury, but attempts had been made much earlier in the trial for this snippet and then we were able at that point to lay another foundation.

MS. CLARK: The objection on this is not foundation. The objection is 352, your Honor. And the problem that was presented--and I think actually the court is in a better position to assess why it is 352 now than before after having seen all of the photographs and all of the tell from the people at the crime scene and the testimony of the photographer, videographer that the people called to put the American Journal photograph into perspective which is this: That this video was actually taken by someone across the street. All of the photographers, according to that testimony, were across the street. They were not allowed to be anywhere near the crime scene. As a result they had to use a zoom lens. In the use of the zoom you have a compression of space, making it appear that everybody is on top of each other, crawling all over each other. That is the problem with this video. It is very misleading and confusing, highly prejudicial to the accurate depiction of what was going on at the crime scene and the manner in which it was handled. The stills are actually much better because there isn't nearly as much misleading information. And I think that if the court were to admit the stills to show what--what they want to show is how there was--were mistakes made in the handling of the crime scene. For example, Rokahr looking in the mailbox, someone holding a coffee cup and Dennis Fung stepping out of the crime scene with a brown bag in his hand and not wearing any gloves. That indicates everything the Defense needs in terms of being able to communicate to the jury what mistakes were made in handling the crime scene. Fair enough. And the People would withdraw their objection to 1043-A, B and C, but I think that the video is unduly misleading and confusing because of the manner which it was shot, and I think that that would be unfair.

THE COURT: All right. Then the People withdraw their objection to 1043-A, B and C. What I will do is ask Mr. Harris to exhibit to me later today 1043, the portion that was shown.

MR. DOUGLAS: May I say one thing, your Honor, in response?

THE COURT: Certainly.

MR. DOUGLAS: Your Honor, these videos were all taken across the street; those that the Defense seeks to introduce, those that the People have already introduced. Two, there was, and I forgot his name now, the African American gentleman with the balding head who testified because he had been hired as a stringer to take photographs on this day and there was a major quality of evidence focusing on that very issue, in fact responding to Miss Clark's concerns that there was this element of distortion. Therefore, the argument that she has made, which parrots those made earlier, simply go to the weight to be given; not to the admissibility of the tape.

THE COURT: But Mr. Douglas, all I'm saying is, gee, before I finally decide, I would like to see it one more time.

MR. DOUGLAS: Very well, your Honor.

THE COURT: All right.

MR. SCHECK: Your Honor, for your assistance, I have identified at page 17904 of the transcript when the discussion of this begins, at least for these segments the court read out, the counter numbers, because these were videotapes that had counter numbers, so I think they were--

THE COURT: All right. All right. The record will reflect that exhibits 1044-A--1044, 1044-A, 1045, 1046, 1046-A have been withdrawn by the Defense.

MR. DOUGLAS: Correct, your Honor. They all concern the testimony of Rosa Lopez.

(Deft's 1044,1044-A,1045,1046,1046-A = withdrawn)

THE COURT: All right. Also, 1048 has been withdrawn.

MR. DOUGLAS: Correct, your Honor. That was used only to refresh.

(Deft's 1048 = withdrawn)

THE COURT: All right. 1052, hearsay objection.

MR. DOUGLAS: Your Honor, that was discussed on transcript page 17998 through 18001 concerning an entire area of cross-examination of Detective Lange as to the importance of having a body examined soon. It was used to impeach. It is used--offered as an exception to the hearsay rule.

MS. CLARK: I need to see it again, your Honor, but it was my--oh, thank you.

THE COURT: I'm sorry, what was the page reference?

MR. DOUGLAS: 17998 through 18001.

THE COURT: Thank you.

(Brief pause.)

MS. CLARK: The People have no objection to the pages 29 through 38. The People object, however, to the last two pages or three pages offered concerning stomach contents for which Detective Lange could not have been impeached. It is inappropriate, improper impeachment of him. That is beyond his field of expertise. It has to do with assessment of time of death for stomach contents.

THE COURT: Mr. Douglas, that is probably--because that portion was not used with Detective Lange--

MR. DOUGLAS: Your Honor, I don't want to argue its admission.

THE COURT: I'm sorry?

MR. DOUGLAS: I don't want to argue its admission if it wasn't used.

THE COURT: All right. As to the extent it was not used?

MR. DOUGLAS: To the extent it was used, that is fine.

THE COURT: All right. Then what we will do is sustain the objection to the portion that was not used.

MS. CLARK: Well, the People would urge the court to sustain the objection even if the portion was used for stomach contents because it would be improper impeachment because it is beyond the witness' field of expertise.

THE COURT: Mr. Douglas just acquiesced to that.

MS. CLARK: All right. I heard him only acquiesce to the part that was not used. I can't remember if it was used with Detective--

THE COURT: No. We have agreed that it is just the physical observations made by the investigating officer at the crime scene; has nothing to do with autopsy examination or anything like that.

MS. CLARK: Well, that--the part about autopsy examination and time of death begins on page 30 in which case it should be--the only thing that is really relevant to Detective Lange is the first page, 29.

MR. DOUGLAS: Can I see it then?


(Brief pause.)

MR. DOUGLAS: Your Honor, I am willing to agree to the redaction of the bottom quarter of page 38 beginning at examination of stomach contents and page 40 and 41, which would be 39, rather, the bottom of 39 and through page 41, because I don't think that those were used. To the extent that other sections were used to impeach, I would stand on the court's wisdom after reading the transcripts.

MS. CLARK: How do you impeach a detective with the examination of bodies to determine time of death?

MR. DOUGLAS: I don't recall specifically what was done, so as I say, I'm not willing to concede that at this point.

THE COURT: All right. I will look at 17998. All right. But we do accept the concession to remove those last two pages?

MR. DOUGLAS: Yes, your Honor.

THE COURT: All right. 1053.

MR. DOUGLAS: I think that is self-authenticating, your Honor. There was a foundational objection, since she has been called as a witness. There can be no real sincere challenge to the accuracy of the photograph.

MS. CLARK: Right.

THE COURT: Submitted.

MS. CLARK: Submitted.

THE COURT: All right. The objection is withdrawn. Okay. 1055, my favorite objection, mag-lite. Miss Clark.

MR. DOUGLAS: Your Honor, 1054 was withdrawn?

THE COURT: Yes, I'm sorry, 1054 is withdrawn.

(Deft's 1054 = withdrawn)

THE COURT: Miss Clark.

MS. CLARK: I can't even remember. Was it--

THE COURT: Mag-lite.

MS. CLARK: Mag-lite. Oh, withdrawn.


MS. CLARK: Your Honor, what was--could I see 1054?

THE COURT: 1054 was that one-page fax from Mr. Coleman.

MR. DOUGLAS: We withdraw.

MS. CLARK: Mr. Coleman?

THE COURT: It has been withdrawn. With regard to Fuhrman.

MS. CLARK: Oh, okay.

THE COURT: Ring a bell?

MS. CLARK: Yeah.

THE COURT: Okay. Mr. Darden indicated yesterday he did not know if there was an objection to 1062, 63, 64 and 65 and he wanted the ability to reinspect those items.

MS. CLARK: Right.

THE COURT: And two of the items are here right now.

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

MR. DARDEN: Can we search the bags, your Honor?

THE COURT: I'm sorry.

MS. CLARK: Is the golf bag up here?

THE COURT: I don't think we brought the golf bag up.

(Discussion held off the record between the court and the clerk.)

THE COURT: Miss Robertson said she did.

THE CLERK: It is in the closet.

MS. CLARK: That is fine.

THE COURT: How about at a recess we will do that?

MS. CLARK: Sure.

THE COURT: All right.

MR. DOUGLAS: For the record, the golf bag has been inventoried by the court's clerk at least twice, if I'm not mistaken.

THE COURT: As well as by the bailiff.

MR. DOUGLAS: Correct.

THE COURT: All right. 1066 has been withdrawn?

MR. DOUGLAS: Correct, your Honor.

(Deft's 1066 = withdrawn)

THE COURT: All right. 1071, crime scene field unit protocol and procedures manual. Miss Clark.

MS. CLARK: I think this is Mr. Goldberg, your Honor.

THE COURT: I'm sorry.

MR. GOLDBERG: Yes, good, morning, your Honor.

THE COURT: Good morning, Mr. Goldberg.

MR. GOLDBERG: This is the black binder that contains the draft manual of the Los Angeles Police Department. I don't think it was recognized by Dennis Fung or Andrea Mazzola, but Greg Matheson and Michele Kestler both testified that they did not recognize all the documents in there, they had not reviewed the entire manual; however, it was a draft manual. And I think both of them stated that there were certain things in the manual they disagreed with, so there is no authentication for it and there is no exception to the hearsay rule.

THE COURT: Well, there is authentication for what it is.

MR. SCHECK: Right.

MR. GOLDBERG: Well, yeah, but I mean the documents within it. They can't actually go through it and say that they recognize all of the documents within it even.

MR. SCHECK: Matheson said that he put it together.


MR. SCHECK: Matheson testified that this was a manual that he was putting together for purposes of accreditation, and the testimony is pretty clear from the witnesses, some of them are handouts that some of them recognize; some weren't. Michele Kestler said she reviewed all of them. Some she agreed with; some she didn't necessarily agree with, but hadn't finished the process of finalizing them. I mean, it is what it is.

MR. GOLDBERG: Actually it was the supervisor of the trace unit, as counsel will recall, that was in the process of putting it together and he stopped when that supervisor either left or was transferred. There was some testimony to that effect. Mr. Matheson was never personally putting this together, if that is what counsel is suggesting. I don't know if he is. But at any rate, the point is to me this isn't even arguable. There is no exception to the hearsay rule under which something that is not in effect comes in and to which every page or every handout has not been authenticated.

MR. SCHECK: Well, the issue is what is it being used for? I think that the issue in the case is the running of the lab with either--without a manual or with a quasi-manual. Now, as we go through the list of these objections--

THE COURT: A quasi-manual?

MR. SCHECK: I'm sorry?

THE COURT: Never mind.

MR. SCHECK: Yes. We are not--the fact that they have such a manual--and at various different points as we go through these objections certain parts of this were used, and I think not objected to, certain parts of it--I don't--I think everything that was used is not objected to. I may be wrong. There are some others here.

MR. GOLDBERG: I thought there was only one--there is only one particular document or two particular documents that I can recall being used from that. One was the protocol on how to collect blood, which we objected to. It was marked several times as a number of different exhibits. And the other one was an ancient memo from Chief Gates that I believe Michele Kestler was asked about, and Mr. Darden objected to that or will object to that.

MR. SCHECK: There is also a section on forensic photography on how to take pictures that was shown to some of the witnesses, and Mr. Ragle testified about that, so it was used to that extent. It was used for impeachment at various different times. I'm not--I don't understand--if the objection is that that is not what it purports to be, then I just don't think it is well taken.

THE COURT: All right. The court will sustain the objection under 352 because it is a draft manual and of little probative value.

MR. SCHECK: If I understand, we can, of course, make references to the fact that they were shown this manual and they were impeached with it? You are not ruling out reference to the manual by any means as it appears in the transcript?

THE COURT: Not to their testimony, no.

MR. SCHECK: We can't pull the manual out and start showing the jury pages that weren't shown to the witnesses?

THE COURT: But if you are smart in your argument, you won't get down to quibbling about the manual, will you?

MR. SCHECK: Well, I think it is of some relevance that we have a crime lab that doesn't have a manual, your Honor.

MR. GOLDBERG: Your Honor, we are not making a motion to strike that testimony so there is no point in arguing about that.

MR. SCHECK: I never heard about a manual until I got here.

THE COURT: If you think quibbling about lines in a manual is going to persuade this jury one way or another--1083.

MR. GOLDBERG: Excuse me, your Honor?

THE COURT: I'm sorry, 1078 is the next objection. This is the videotape of glove on a blanket.

MR. GOLDBERG: Yeah. This was the famous blob that was on the blanket that we had extensive arguments about previously. I renew those arguments here. I don't care to restate them because I know that the court heard them at length previously. In addition to that, your Honor, as we have previously discussed yesterday, we were objecting to all of the videotapes conditionally upon redaction, and that would pertain to this as well, but I think we have basically agreed to that--the procedure for handling that objection.

THE COURT: All right. The objection then is overruled subject to the redaction of the portion that was used on that one. 1082, the objection is--any argument on that?

MR. GOLDBERG: No, your Honor.

THE COURT: All right. The objection is overruled subject to redaction of--to the portion that was used. 1083.

MR. GOLDBERG: No, argument, your Honor, the same.

THE COURT: All right. The objection will be overruled subject to the redaction to the portion that was used. All right. 1084.

MR. GOLDBERG: Your Honor, this was the evidence collection sheet that I referred to previously in the last argument that I made. This particular one was shown to Dennis Fung. As I said, it was marked a couple of times. And Mr. Fung testified--let me get the page citation--I don't have personal knowledge of this, but I was told that Mr. Douglas indicated that there was no foundation for this and they might be withdrawing this.

MR. SCHECK: I can clear this up if you want, your Honor. The 1084 is the three-page handout dealing with how to collect the bloodstain. It is also 1118 that was shown to Miss Mazzola and then it was even shown later to Michele Kestler. I will see if I can get that reference.

(Brief pause.)

MR. SCHECK: And that would be 1319. Now, when Dennis Fung was shown this he of course couldn't remember seeing it before. When Miss Mazzola was shown this, and this is at page 24396 of the transcript, she acknowledged that this was what she was given at the SID mini academy, that she was familiar it is the handout on how to collect the bloodstain. I would note that this is the same three-page document that we were given by Fung and Mazzola at the split hearing on how to collect the bloodstains. I can't--I'm fairly astonished that they can come in here and object to this on lack of authentication. It is just an absurdity. And then on 1319, that is the same exhibit, which is at page 42003 of the transcript, Kestler acknowledges this.

MR. GOLDBERG: Which page did you say?

MR. SCHECK: I will check it for you. 42003 of the transcript. It comes up again, but I think it is admissible simply on the basis of Mazzola's testimony that, yes, she was familiar with this as the document that they handed out at the SID mini academy on how to collect the bloodstain. It was up on the elmo. It was--the jury has seen it. And I suppose that for the sake of clarity, we could cross-reference them.

MR. GOLDBERG: Well, your Honor, these--these issues are really very simple. First of all, counsel is right, Mr. Fung did say that he hadn't seen this, so there is no authentication there. I'm not positive about Miss Mazzola because I hadn't recalled her having been asked about it, and Miss Kestler was only asked one question about this document and nothing as to whether it is a current policy, I mean, no authenticating type questions as to what it--what it constitutes specifically. And I'm also looking at 42003, but there is a very simple way of resolving these issues and that is that there is something called the hearsay rule and we don't allow hearsay into court unless it qualifies under some exception. We do have exceptions for materials of this kind when you are cross-examining an expert witness under 1071, as I recall. We've argued this numerous times in the past. If they have read, relied or considered this type of material, and then you don't get to introduce the underlying report, even then, even if the witness says, yes, I recognize this and I relied on it. You simply get to ask them questions about it, because the underlying report is still hearsay, it is simply coming in under this evidence code provision for the purposes of testing the--

The opinion and the underlying basis for the opinion of the witness, so you can cross-examine them on it, but you don't introduce the underlying document. So I don't see any hearsay rule exception to allow this in, any authentication for it under any one of those hearsay exceptions that they read, relied or considered it. At any rate, even if they were cross-examined on it, which they weren't, as to things in the pages which were inconsistent with what they did or whatever, which is not the case, but even if they had been cross-examined, the cross-examination would stand but the underlying document itself would not come in.

MR. SCHECK: Your Honor, at page 24396 of the transcript, question of Miss Mazzola: "This is in regard to 1118. I show you this, ask you to take a look at it. "Item no. 13, okay. "Question: Look at that. Do these pages represent a handout that you received at the SID mini academy? "Yes, they look familiar." And in that handout it goes on to discuss how they should collect the bloodstain. There was extensive cross-examination about how you were supposed to get the whole thing, particularly for purposes of RFLP analysis. This is the handout that they gave us on how they collect bloodstains which Mazzola authenticates and Kestler suggested and Fung forgot about. But there is no question as to what it is. It is not a hearsay problem here. This is their instructions on how to collect a bloodstain. It is relevant for many different points. A impeached them on the fact that they didn't follow the procedure, because if they followed their procedure, then they should have removed all the blood from the Bronco.

THE COURT: So if it is so simple, what is the evidence code exception for this document?

MR. SCHECK: No. I'm saying that it is--it is--well, it is offered for impeachment. It is also a business record of the SID laboratory with respect to how to collect the bloodstain that was given out to the criminalist as a record that she is supposed to follow. So in that respect it is not even hearsay, it is being offered--well, it is a business record. It is being offered as a set of instructions on how they are supposed to go about collecting bloodstains. It is offered for impeachment with respect to the--the techniques involved and in contrast to other techniques. It also comes in as a document that is reasonably relied upon by experts in the field. These are their experts. These are the procedures that Mazzola at least acknowledged she is supposed to follow in the collection of blood evidence, so it comes in under--as a basis for her expert opinion as to how you are supposed to collect bloodstains at a crime scene. So there is a number of different grounds to admit it and the--I'm very surprised that they could object on authentication grounds, given the testimony in the record. In fact, they turned this over to us at a split hearing in discovery as their method for how to collect the bloodstain.

THE COURT: All right. The objection is overruled. All right. 1095.

MR. GOLDBERG: This was just simply a list of things that is supposed to be in the truck.


MR. GOLDBERG: And no one ever authenticated having seen it and it doesn't have any relevance and it doesn't qualify under any hearsay exception. I'm not even sure of the theory under which it is being offered.

THE COURT: Mr. Scheck.

MR. SCHECK: The only problem here is with respect to the actual testimony, Mr. Fung said that he couldn't specifically recall seeing this form before, but he had seen one like it with respect to what are supposed--what items are supposed to be in the crime scene truck. And this is the only document that they ever turned over to us as to the list things that are supposed to be in the crime scene truck.

THE COURT: All right. The objection is sustained.

MR. DOUGLAS: Which one was that, your Honor?

THE COURT: That was 1095. All right. 1101, 02, 03 and 04.

MR. GOLDBERG: Those were the same objections that I previously made to the videos, your Honor.

THE COURT: All right. Those objections will be overruled subject to the redaction of the portions that were actually displayed to the jury. All right. 1106 has been withdrawn.

(Deft's 1106 = withdrawn)

The court; all right. 1115.

MR. SCHECK: Is that The Gates?

THE COURT: No. Just a one-page--starts with a quote from Ralph Waldo Emerson.

(Brief pause.)

MR. NEUFELD: Your Honor, we will withdraw that.

THE COURT: All right. Withdrawn.

(Deft's 1115 = withdrawn)

THE COURT: 1116. That was 1115 that was withdrawn.

MR. GOLDBERG: 1116 is another one of the handouts to the field procedure--from the field procedures manual, as I recall. And we objected to that on hearsay, no authentication, and irrelevant grounds. I just wanted to check the transcript to--Mr. Neufeld can be heard and maybe I will just respond to him.

MR. NEUFELD: Your Honor, this has to do with what they are supposed to do with photographs at the crime scene, and just like 1118, Miss Mazzola did testify that they did receive a handout on forensic photography. She couldn't be sure that this was exactly the same one, but she did remember the two-page handout on forensic photography, and it certainly could be the same one. And for all the same reasons that Mr. Scheck already articulated for item 1118, I think they apply here with equal force. There is no difference other than the fact that she is not quite as absolutely certain. Short of that, I think the same degree of authentication has been established and thus the foundation has been laid. One second.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: If their objection is authentication, okay, I'm limiting myself to authentication argument because obviously all the other arguments in terms of impeachment, a business record, all the arguments that Mr. Scheck already made, would apply with equal force here, so there is no reason to restate them, so I'm assuming that their objection is limited to authentication. But on this document, unlike--unlike 1115 where I--we withdrew it because we agreed there was not sufficient authentication by the witness, here again there is the authentication by Miss Mazzola.

MR. GOLDBERG: The alleged authentication that counsel refers to on page 24249 of the transcript starting at line 11 is by Mr. Neufeld. "Show you what has been marked as Defendant's 1116. Ask you to take a look at those two pages. Miss Mazzola, is 1116, Defense 1116, the handout that you received on forensic photography?" "Answer: I don't know if it is the exact handout that we received. "Question: Could be? "Answer: It is possible." I mean, that is the skimpiest authentication I think I have ever seen in a very long time--

MR. NEUFELD: The next two sentences though, your Honor, are--

MR. GOLDBERG: --that she--

MR. NEUFELD: You said: "It could be, could be."

MR. GOLDBERG: Well, that she--

MR. NEUFELD: "However, well, you say you recall receiving a handout on forensic photography, did you not? "Answer: Yes." So that is the only handout.

THE COURT: Excuse me, counsel. My recollection is Mr. Goldberg was addressing that.

MR. GOLDBERG: So she received some handout and she--she says it is possible that it could be this one. That just doesn't even come anywhere arguably close to being authentication. But also, I would renew and restate the objections that I previously had. I mean, unless there is something inconsistent about this or they have been cross-examined about it, yeah, possibly that cross-examination is admissible under 1071 of the evidence code.

THE COURT: All right.

MR. GOLDBERG: But this should not be allowed.

MR. NEUFELD: Your Honor, the only point is, is that we received a group of handouts from the Prosecution. This is the only handout on forensic photography. There isn't any other handout. If they were suggesting that there was another one, we could under perhaps the authentication might not be adequate. If there is only one and she says she did receive one, this could be it and that should be adequate.

THE COURT: All right. The objection will be sustained on two grounds: One, authentication, and two, Mazzola wasn't the photographer. If you had asked these questions of Mr. Rokahr, that would have been different. All right. Number 1117. This is the Prosecution videotape of the evidence collection demonstration.

MR. GOLDBERG: Yes, your Honor. We simply objected to the sound on that and asked that that be redacted out pursuant to the court's previous rulings.

THE COURT: All right. Then the objection is overruled subject to the sound not being played during the course of the--if the jury wishes to see this video again. All right. 1118 we have already discussed. 1120. 1120 is the report of a statement by Andrea Mazzola.

MR. GOLDBERG: Yes, your Honor. This was actually the subject of a previous court ruling where counsel wanted to cross-examine Miss Mazzola about an interview that she had with D.A. investigators where they were asking her about a treatment for a book or a screenplay that someone had written to the effect that evidence had been planted. I don't know whether the court recalls that, it came up during Miss Mazzola's testimony, and the court ruled that the court would not allow cross-examination of--on that subject matter. There was very limited cross-examination as to their being an interview and limited cross-examination, as I recall, as to whether or not she said something or other about the blood vial and then she was shown this document and said she had never seen it before to recognize it. And there is no authentication for it. There is no foundation for it. It is hearsay and it should also be excluded under the court's previous rulings on this issue.

MR. NEUFELD: We will submit it based on hearsay.

THE COURT: All right. Objection sustained. All right. 1121.

MR. GOLDBERG: That was 1118 that we just discussed, I'm sorry?

THE COURT: 1121.


THE COURT: What is the objection to 1121?

MR. GOLDBERG: I didn't think that we objected to 1121.

THE COURT: All right. Then the objection will be overruled. That is what I had from my notes from yesterday. All right. 1122 and 1123, Mr. Goldberg, if you recollect--


THE COURT: --these are elmo printouts.

MR. GOLDBERG: Correct. And Mr. Douglas agreed that the Prosecution could substitute original photographs for those.

MR. DOUGLAS: Correct, your Honor.

THE COURT: All right. That will be the order. Madam reporter, we will take a break in about five minutes. All right. 1132, board. Mrs. Robertson, 1132.

MR. GOLDBERG: Your Honor--

THE COURT: Mr. Goldberg.

MR. GOLDBERG: This is a board that Greg Matheson was shown and the discussion starts on page 25679 of the transcript. What it was intended to show is that two nanograms--excuse me--20 nanograms of DNA would be the size of a pin and that two nanograms would be invisible. Mr. Matheson never agreed with that proposition, although he was shown this diagram, and what he did say, that makes it a little bit more confusing, is that 20 nanograms of DNA contained in blood cells, in other words, that the DNA had not been extracted out, is visible, and I think he may have even said that two nanograms of DNA in blood cells is visible. And what this is trying to--to indicate is the visibility of 20 nanograms and two nanograms of DNA outside of red blood with the idea that it would be easily contaminated because you can't see it, but this is a proposition to which he did not agree.

THE COURT: What is your page cite?

MR. GOLDBERG: My page cite is that the discussion on this issue starts on 25679.

THE COURT: All right.

MR. GOLDBERG: And there is--there are particular discussion on 25680, lines 2 through 16 that I highlighted as to what 20 nanograms looks like, et cetera.

THE COURT: Mr. Blasier.

MR. BLASIER: Well, Dr. Cotton was also asked about this chart and testified at 27112, it was used in a hypothetical, about the amounts of DNA as indicated on the chart hypothetically, if that had been injected or contaminated into the Bundy drops that had been degraded, that that would give a positive RFLP result. So I think it has been authenticated through Dr. Cotton.

THE COURT: All right. I will take that one under submission.

MR. GOLDBERG: And perhaps the court could read the--get the gist of the People's objection if the court read 25680, the citation I previously gave.

THE COURT: All right. Let's see 1133, PCR amplification board.

(Brief pause.)

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Your Honor, this board and the next one were used also with Greg Matheson and virtually they simply put the board up there and asked Mr. Matheson almost no questions about it whatsoever. They did ask Mr. Matheson that--whether PCR amplification involved 32 cycles, which he agreed to. But as to the--the number that you end up with, the four million 290,000, he never agreed to that number. All he said, it would be a large number, so there is no authentication for this exhibit.

THE COURT: Looks like four billion to me.

MR. GOLDBERG: Excuse me. Yes, right. Miss Deirdra was blocking off three of those zeros over there. But at any rate, the discussion for that, your Honor, commences on page 25685, and the most relevant portions is on 25687 where he is asked: "And typically that is done 32 times, correct? That is the protocol of forensics? "Yes. "Question: And that chart depicts statistics starting out with a very small amount and doubling it 30 times"--30 times, I guess that is a mistake--"Leads to a very large amount, correct? "Answer: Double it 32, yes. It is an extremely large number, but there is no statement as to the specific number."

MR. BLASIER: I'm not sure if this is a new objection. This was objected to at the time on page 25688 and that objection was overruled by the court. But more importantly, Gary Sims testified about this chart specifically, and I will refer the court to pages 28416 and 28425 where he talked about this chart and the next--well, this chart and authenticated that the concept that we were portraying there is accurate. And I'm not sure if they are suggesting that there is some sort of mathematical problem and we didn't bring that up, and I don't think there is.

THE COURT: All right. The objection is overruled. All right. No. 1140, three-page analyzed evidence report. This will be the last matter we take up before we take a break.

MR. GOLDBERG: May I have one moment, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. BLASIER: Could we see that one? I think--

THE COURT: Yes, this is Mr. Matheson's.

MR. GOLDBERG: Well, we will object to 1140, your Honor, which is the--

THE COURT: I know.


THE COURT: The objection is overruled.

MR. BLASIER: If I could see 1140, I think we can agree on that.

MR. GOLDBERG: I thought we were just discussing 1133.

THE COURT: We were discussing both of them.

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

THE COURT: Do you want to be heard on 1134?

MR. GOLDBERG: Maybe the court had already ruled on that. I don't know.

THE COURT: If you feel you need to say something specifically with regard--because it is the same mathematical process. That--

MR. GOLDBERG: I thought that 1134, as I recalled, shows a number of different--different overlying triangular--


MR. GOLDBERG: --patterns and I don't know whether that was used with Gary Sims or not. Your Honor, but at any rate, on this particular one, this one was put up simultaneously to Greg Matheson's testimony, but they didn't ask him any questions about it. He wasn't asked what does this show or do you agree with it or--I mean, there was nothing in the way of authentication.

THE COURT: Mr. Blasier.

MR. GOLDBERG: It was just simultaneously shown with his testimony.

MR. BLASIER: He authenticated this at 25688 without objection from the Prosecution in terms of the concept that is being displayed here about when you amplify DNA different types are going to get amplified as well, and fairly simple. Talked about this extensively.

MR. GOLDBERG: You see the kind of loose language. He authenticated the concept here. The discussion of this starts on page 42049 and it was shown--I'm sorry, it starts on 25688, and it was put up there but there were no questions about it.

MR. BLASIER: No. He was asked questions about is it accurate that if you've got several different components of a mixture and the amplification is done, they all get amplified and you wind up with a lot of each one of them and this is just four times. That is on the last chart.

MR. GOLDBERG: I mean, I just think there should be some authentication for the correctness of these numbers, and to my knowledge no one has said these numbers are correct. I mean, maybe they are, I don't know. I have no idea, but I don't think there is anything in the record.

MR. BLASIER: Gary Sims--

THE COURT: Matter submitted?


THE COURT: All right. The objection is overruled. All right. 1140.

MR. GOLDBERG: I'm sorry, I didn't hear the court's ruling.

THE COURT: Overruled.

MR. BLASIER: 1140, I think the problem there was the second page was--the court redacted parts of that and--

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

MR. GOLDBERG: Well, this same document was marked by the Prosecution and may have been redacted in a different way, but for some reason counsel has cut out the results on 117, 118-A and 118-B.

MR. BLASIER: That was--

MR. GOLDBERG: I don't know why.

MR. BLASIER: That was because the court would not allow them to go into 117 after that--I can't remember the exact reason, but it was because they had not raised it in their direct, I believe, and then were trying to make an argument after they were done.

MR. GOLDBERG: As I recall what happened was Mr. Sims then testified based upon Mr. Matheson's report what the conventional serology results were on the rear gate stains for the purposes of showing that there was degradation.

THE COURT: So you have no objection to the complete report? Is that what you are saying?


THE COURT: Which is already a Prosecution exhibit?


THE COURT: All right. Then what we will do is withdraw--since the complete report is--do you know--can you give me the cross-reference number on that?

MR. GOLDBERG: I can't do it right now, your Honor.

THE COURT: All right. Then what I would propose then is that we withdraw the Defense exhibit, since it is a redacted copy, and substitute in its place the complete copy. Any objection to that.

MR. BLASIER: The only problem with that is I think the Prosecution's exhibit is missing that page. That is my recollection as to why I introduced this.

THE COURT: All right. Since we both agree that we need the complete report, we will get the complete report and we will substitute it in both locations. How about that?

MR. BLASIER: That is fine.

THE COURT: Okay. Let's take a 15-minute recess and we will resume with 1143.


THE COURT: All right. Back on the record. 1143.

MR. GOLDBERG: Your Honor, this was the series of printouts that were to portray the EAP issue where the Prosecution said that yesterday we didn't have any objection, other than those we previously argued at the time, other than that the resolution on some of these is poor, the actual photographs are all in evidence anyway, and maybe if there is some sort of admonition of some way of letting the jurors know that they can take a look at the actual photographs from the EAP runs where the resolution is significantly different, material is different on the elmo.

MR. BLASIER: Well, these weren't put on the elmo; these were power point slides.


MR. BLASIER: I have no objection of them being told that there are pictures of these if they wish to look at them. I would object to them being told the pictures are much better than the slide. The slides are there to illustrate where the relative bands are and they do that quite well.

THE COURT: All right. But what is available to them is pretty clear in my eyes.


THE COURT: All right. So that objection will be overruled. All right. No. 1145.

MR. CLARKE: Good morning, your Honor.

THE COURT: Mr. Clarke, how are you?

MR. CLARKE: Just fine, thank you. The court may recall there was a substantial argument over this exhibit and the court sustained objections on multiple grounds.

THE COURT: Many times.

MR. CLARKE: Yes. That is also exhibit 1205, by the way. It is indeed the same exhibit.

THE COURT: All right.

MR. NEUFELD: Submitted, your Honor.

THE COURT: All right. Objection sustained. 1154.

MR. CLARKE: The objection to that item, and that again was used with multiple witnesses, is hearsay and no foundation. This was a letter to CACLD to Cellmark and the court sustained those objections at the time as well.

THE COURT: Didn't Dr. Cotton, though, testify to this at some point?

MR. NEUFELD: Your Honor, actually--

THE COURT: Let me just get the basis for the objection.

MR. CLARKE: Hearsay, no foundation.

MR. NEUFELD: Your Honor, look at the transcript. Initially they objected not to--on the foundation and hearsay grounds. The court ruled that my questions for the foundation were inadequate and then you called me over to the side bar and instructed me on how to complete the foundation and I came back and completed the foundation using the questions that you suggested, and Mr. Clarke again objected and you overruled it. And if you look at page beginning at--look likes it is 257--I'm sorry--27502, 2750--27501--in fact--in fact 27502 he again renews the objection after I laid the additional foundation that the court suggested, and that is when you overruled the objection and allowed me to show the exhibit.

THE COURT: All right. Is the matter submitted?


THE COURT: All right. The objection is overruled. 11--all right. 1158 is being withdrawn.

MR. CLARKE: For purposes of clarification, that is the same as 1191-B. If that is going to be offered by him the Defense, then we have no intention of moving in 1158, but I think we need to clarify that.

MR. SCHECK: DQ-Alpha types of Fung and Mazzola is that what we are talking about.

MR. CLARKE: Actually and polymarker as well.

MR. NEUFELD: It was done outside the presence of the jury, but we will move it in by stipulation if you want. That is no problem.

MR. CLARKE: 1191-A and B are coming in, then the withdrawal of 1158 is adequate.


(Deft's 1158 = withdrawn)

MR. NEUFELD: I don't know about 1191 yet, but--

THE COURT: All right. 1170.

MR. HARMON: Your Honor, how are you?

THE COURT: Mr. Harmon, how are you?

MR. HARMON: Fine, thank you.

THE COURT: Still got the beard?

MR. HARMON: Taking after other bearded gentlemen around here. Every objection was sustained to that which there was no testimony about that. Mr. Sims expressed no expertise in it. You agreed that was beyond the scope of the testimony, and so while they succeeded in getting it marked, that was the extent of it, your Honor.

THE COURT: All right.

MR. SCHECK: This is what?

MR. HARMON: 1170, Cellmark's polymarker strips.

MR. SCHECK: Cellmark's polymarker on the steering wheel? Mr. Sims looked at it, said he was familiar with it, but said he would not venture an opinion on it. It, however, is the same--the underlying polymarker that was used for the results on the steering wheel that was introduced through Robin Cotton and this is the polymarker strip that they used, so I don't know.

THE COURT: Is it in evidence.

MR. SCHECK: How he is objecting on lack of authentication?

THE COURT: Is it in evidence someplace else under a different--

MR. SCHECK: Well, Mr. Clarke--

MR. HARMON: Can I answer that, your Honor?

MR. SCHECK: Mr. Clarke did not offer the strip itself. He offered the results on the results board based on their underlying data, so if they are saying there is no authentication for this, I don't see how they got half the evidence in in this case in the first place. I don't understand how he can sit up here and object to the polymarker strip that they gave us that is the basis of one of their results.

THE COURT: The problem is we've got an exhibit in the testimony but the exhibit indicates an inadequate foundation.

MR. SCHECK: That is not accurate. What it states is, is that he says he is familiar with this as the polymarker strip from the steering wheel. He then goes to say that he does not want to draw any judgments from it because he doesn't feel sufficiently expert with the polymarker. That is difference from it coming into evidence. He is objecting on lack of authentication to an exhibit he put in. This is frivolous.

MR. HARMON: To answer the question that you asked him that he never answered, the strips were not in evidence, they were never shown to anybody in front of this jury in this case, and I have never objected on the basis of no authentication. So I objected. And the transcript is clear, he never answered any question. You sustained objections that it was beyond the scope of his direct examination. So while it is great to mark things and while it is true that is in fact Cellmark's strip, we do have rules, they are called the California evidence code, which dictate what the jury can see and in what form they can see it in, and it is simply us asking you to apply the rules.

MR. SCHECK: That is not--Mr. Harmon is not stating accurately. The court can look itself at the transcript at page 28683. Mr. Sims said he was familiar with this strip. Then when he indicated that he didn't feel competent to make an opinion about the strip, objections were sustained to my going any further with it. Now, that is different as to whether he has conceded I showed him this, he said yes, that's the strip.

THE COURT: I will take a look at it.

MR. SCHECK: I'm not sure it is a big deal, but the point is as a legal basis it is admissible. As to striking any further testimony, he said that--in terms of his ability to read polymarker strips, well, that is another thing. That has already been done.

THE COURT: All right. 1183.

MR. SCHECK: Your Honor, with respect to 1183 and 1184--1183--and we can check this. I think this is the same thing you just dealt with on 1154 and 1155. These are the California association of crime lab director's report and the Cellmark letter in regard to the blind trials. 1184 I believe is the Thompson article about the CACLD study and we withdraw 1184.

THE COURT: All right.

MR. SCHECK: If I'm right about what those things are.

THE COURT: This is 1184, Dr. Thompson's article.

MR. SCHECK: So 1183 I think is in and 1184 we withdraw.


(Deft's 1184 = withdrawn)

THE COURT: Other comment on that?

MR. HARMON: Yes. 1183 isn't in the exhibit that was shown to Dr. Cotton is in, and if you look at the testimony of Collin Yamauchi, he was asked if he had seen that and he said no, and so 1183, as it exists, should not be admitted in this case.

MR. SCHECK: I think what we ought to do, as we have done before, is cross-reference them so that the jury knows--the whole point of it is that he didn't know about it and we are talking about the same set of documents; that is, the report from the California association of crime lab directors and the Cellmark letter, our point concerning there are false positive errors.

THE COURT: All right. What we will do is cross-reference this. Okay. 1191-B which I think is a duplicate of 1158, if I'm not mistaken. This is the Fung and Mazzola D1S80--

MR. SCHECK: Mr. Clarke says he has looked at it, and subject to his representations and checking, we have no objections to 1191-A--well, 1191-A and B are supposed to be, if you put them together, the D1S80, DQ-Alpha and polymarker genotypes for Fung and Mazzola, right?

MR. HARMON: Well, and other personnel.

MR. SCHECK: So if that is what it is, that is fine with us.

THE COURT: Okay. Mr. Clarke, 1191-A, no objection?

MR. CLARKE: Could we see that quickly, your Honor?

(Brief pause.)

MR. CLARKE: Thank you.

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

MR. CLARKE: Thank you.

THE COURT: All right. Mr. Clarke, Mr. Harmon, what is your status on these--actually 1191 and 1192--excuse me--1191-A and B?

MR. HARMON: No objection.

THE COURT: All right. All right. The record should reflect that exhibit 1195 has been withdrawn. Exhibit 1197, 98, 99, 1200 and 1201 likewise have been withdrawn.

(Deft's 1195 = withdrawn)

(Deft's 1197 thru 1201 = withdrawn)

(Brief pause.)

THE COURT: All right. Next matter that is contested is 1205, the letter. Submitted?

MR. DOUGLAS: Submitted, your Honor.

THE COURT: Sustained. All right. 1207 has been withdrawn.

(Deft's 1207 id = withdrawn)

THE COURT: 1215 is the amplitype users guide.

MR. CLARKE: And the only objection is to the material other than was--what was used with the witness regarding the 1.2 mixtures.

THE COURT: Mr. Neufeld, Mr. Scheck?

MR. SCHECK: I'm sorry?

THE COURT: On 1215, the amplitype users guide, there is no objection to the paragraph that was used; however, there is an objection to the extraneous material.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: This has to do with the mix; is that right?


MR. SCHECK: I think that is fine.

MR. NEUFELD: It is not a paragraph, though; it is actually a couple of pages that deal with it and certainly that it only deals with the mixture in the 1.2, then we will limit it.

THE COURT: I will overrule the objection subject to the redaction for that purpose.


THE COURT: Refresh my recollection. Who handled Mr. Deedrick?

MS. CLARK: I did.

THE COURT: All right. 1220.

MR. NEUFELD: Your Honor, I'm sorry, your Honor, do you also have our--do you also have our note that we withdrew certain exhibits from yesterday? Informally we withdrew certain exhibits about Bruce Weir. You have already so indicated?

THE COURT: Yeah, we went through that about three minutes ago.

MR. NEUFELD: Oh, all right. Thanks.

THE COURT: Okay. All right. Miss Clark, as to 1220.

MS. CLARK: Right. The objection is that there is no relevance to it. That was a--a system of classification of hairs and fibers not used by Mr. Deedrick, nor was it shown that it was used by any witness or expert for the Defense. It is a system of classification of characteristics that assigns numerical value or--assigns a number to each of the various characteristics for the purpose of attempting to categorize, but there was no foundation laid to establish that it is an accepted procedure in the scientific community at all. In fact to the contrary, Mr. Deedrick rejected it.

THE COURT: Mr. Blasier.

MR. BLASIER: Well, he did testify that he remembered reading and he disagreed with the numbering system, that is accurate, but he agreed that the list of characteristics that he described on there are the characteristics that he looked at. I would submit it on that.

THE COURT: All right. I will overrule the objection on that one.

MS. CLARK: Your Honor, you skipped 1217. You overruled that objection on 1220?


MS. CLARK: There was no foundation laid by the Defense, your Honor.

THE COURT: Counsel, he heard the argument. There was no objection lodged to 1217.

MS. CLARK: It is in my list, the letter to Mr. Cochran.

MR. BLASIER: When we went through this yesterday. This was not on the list.

MS. CLARK: It is in my August 7th letter.

MR. BLASIER: I agree was, but yesterday they didn't put it on their list. I am happy to deal with it.

THE COURT: All right. 1217.

MS. CLARK: That was irrelevant. That was a worksheet marked by Susan Brockbank, but did not involve any of the evidence that she testified to.

MR. BLASIER: It was an example of the worksheet that they used to clarify hairs. That is what it was intended for. I agree, there was not any hair that was used in this case. That was why I introduced it, as an example of how they classify hairs. There was no objection to it at the time. She authenticated this is the form we use.

THE COURT: All right. The objection is overruled. All right. 1221. 1221 indicates that it is one page. It appears to have two pages.

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

MR. BLASIER: I'm not sure why page 2 is there. It shouldn't be.

THE COURT: Mr. Blasier, it appears to be your notes.

MS. CLARK: I disagree. I think it should be there.

MR. BLASIER: I'm sure you do.

MS. CLARK: The People withdraw their objection if we can have page 2.

MR. BLASIER: Obviously the second page is--

MS. CLARK: Well, B and C you probably want.

MR. BLASIER: Well, yeah, we can cut off the bottom part.

THE COURT: All right. Miss Clark.

MS. CLARK: I will withdraw the objection.

THE COURT: All right. You will withdraw the objection subject to the cutting off of the bottom?


THE COURT: All right.

MR. DOUGLAS: Talking about what number?

THE COURT: 1221. And I will staple the two parts together so they don't get lost. All right. 1222, FBI hair identified.

MS. CLARK: I need a page cite on that.

MR. BLASIER: 35181, 182, line 11.

MS. CLARK: Do you have a volume?

MR. BLASIER: No, I sure don't.

MS. CLARK: Can I have a minute, please?

THE COURT: Sure. Do you want to see this?

MS. CLARK: I know what it is--maybe I don't. Are you holding it?

MS. CLARK: Oh, this is not what I thought it was.

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

MS. CLARK: Withdrawn.

THE COURT: All right. 1226 has been withdrawn.

MR. DOUGLAS: We submitted an objection.

THE COURT: I'm sorry.

MR. DOUGLAS: We submitted an objection.

THE COURT: All right. That will be sustained. Okay. 1233, this is Mandel and Aaronson.

MS. CLARK: May I interject, your Honor? Defense 1227, Mr. Darden wanted to interpose an objection on that photograph.

MR. DARDEN: That is the photograph of the Defendant--

THE COURT: The night before.

MR. DARDEN: --the night before. We would object on the same grounds as earlier this morning with regard to 1003. The Defendant posing for a photograph in our opinion has no probative value. It is misleading to the jury.

MR. DOUGLAS: Submit it.

THE COURT: All right. The objection is overruled. All right. 1233. We might as well take up 1233 and 1234 at the same time.

MS. CLARK: Your Honor, I have a discrepancy here. I interposed an objection to 1233. That was described to me as an article on the selection of non-correlated thin layer chromatography, chromatographic solvents.

THE COURT: No, 1233 is the printout of Ellen Aaronson's route from apartment to the Mezzaluna restaurant and 1234 being the route back.

MS. CLARK: Your Honor, then we've skipped a couple of objections I needed to have on the Deedrick exhibits because they were misnumbered in my version 1223 and 1224. I had objections to them. They were misnumbered in my--

THE COURT: Okay. Well, let me do this. Since I've got these out, 1233 and 1234, do you have any objections to these?

MS. CLARK: Those routes? No.

THE COURT: Aaronson and--

MS. CLARK: Right, no objection.

THE COURT: All right. All right. Let's go back then--you want to go back to 12--

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

THE COURT: 1223 and 1224.

MS. CLARK: Uh-huh.

THE COURT: All right. 1223 is the--appears to be the Golding and Kokot, k-o-k-o-t, article.

MS. CLARK: Is the entitled "The selection of non-correlated thin layer chromatographic solvents"?

THE COURT: That is it.

MS. CLARK: There would be an objection to that, your Honor, as being hearsay, irrelevant. There was no foundation. It was an article shown to Mr. Deedrick that he did not, I believe, demonstrate familiarity with. There was no adoption of it, there was no reliance on it, nor was it even impeaching.

MR. BLASIER: Can I take a look at it, because that wasn't on my list?

(Brief pause.)

MR. BLASIER: We will withdraw that.

THE COURT: All right. Withdrawn.

(Deft's 1223 = withdrawn)

MS. CLARK: 1224.

THE COURT: 1224 is the--thank you.

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

MS. CLARK: With respect to--should I put it on the elmo so I can talk to you and we can see it at the same time?

THE COURT: I am familiar with it.

MS. CLARK: Okay. On the--

THE COURT: Why don't you use the microphone so the court reporter can get you, Miss Clark.

MS. CLARK: I am waiting for Mr. Blasier so he can hear my objections.

(Brief pause.)

MS. CLARK: First of all, with respect to all of these slides, they are argumentative. They should not be admitted as evidence. If they wanted to use them as argument boards, I think that would be fine. Secondly, with respect to the gloves, the gloves board in particular--board or slide in particular is incorrect. It said that there is no hair consistent with O.J. Simpson on the Rockingham glove. That is incorrect. There was--there is a black limb hair that would be consistent with Mr. Simpson. That is consistent with Mr. Simpson, rather, in the testimony of Doug Deedrick.

THE COURT: All right. So the only factual inaccuracy, as far as the record is concerned, is one of the slides? The Rockingham glove slide?

MS. CLARK: Actually it is a "Both gloves" slide.

THE COURT: What is the other inaccuracy on the--

MS. CLARK: No, it is--it is all on one slide. The slide is entitled "Both gloves" and it is incorrect with respect to the assertion on the Rockingham glove.

THE COURT: Any other factual inaccuracies that you are alleging?


THE COURT: All right. Mr. Blasier.

MR. BLASIER: I think we went through this when this was shown. I believe the testimony was had they don't classify limb hairs and certainly this--you know, they can say it is Negroid, but that is all, and I don't believe that he testified that as with the other hairs with other characteristics that he is willing to make any kind of assessment on this one. But we went through this at the time this was shown and introduced.

MS. CLARK: No, he didn't--there is a distinction between how definitive he could be in his conclusion with respect to limb hairs versus head hairs because head hairs have more characteristics, but it is correct that the limb hair found inside the Rockingham glove is consistent with limb hairs of--with--with having come from Mr. Simpson, so this is a misleading assertion on this slide.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: I don't think he ever said that, and I know this was discussed by Mr. Bailey, because I think the issue came up at the time that we used that, and I believe there was even a bench conference about it where the court allowed it on the basis that they don't classify limb hairs even though they can tell the race. That is not the same as head hairs where they have a lot of other characteristics to look at. That is my recollection.

MS. CLARK: I don't remember what the bench conference was, your Honor. I just know that given the witness' testimony that the limb hair in the Rockingham glove could have come from Mr. Simpson, in view of that testimony it is misleading to say no hair consistent with him.

THE COURT: All right. Do we have any reference in the transcript where this is discussed?

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

MS. CLARK: We are going to have to dig it up, your Honor.

MR. BLASIER: We would like to look it up, too. I'm almost positive this has been covered. Pass on this one?

MS. CLARK: Let's pass on this one now.

THE COURT: Mr. Scheck says he has got it.

MR. BLASIER: Well, we've got the reference to the number, but I'm not sure that is what we are looking for. I can find it.


(Brief pause.)

THE COURT: All right. 1235.

MS. CLARK: What is the date of this statement, your Honor?

THE COURT: I'm sorry, the date of this statement?

MS. CLARK: Right. It says statement of Ellen Aaronson.

THE COURT: Yes, it is.

MS. CLARK: Is that--okay. July 8th.

THE COURT: This is a subsequent telephonic July 8th.

MS. CLARK: Interview with Detective Kilcoyne?


MS. CLARK: And the People's objection to that would be hearsay.

MR. DOUGLAS: Thank you, your Honor. It is offered to rebut a claim of recent fabrication and it also has sufficient guarantee of trustworthiness. I believe, although I'm not certain, this was offered on redirect after there had been a spirited cross-examination about some of the times, the confusions about the hours on the Mezzaluna clock, whether or not she had recalled accurately what times she had left and the substance of a--a subsequent conversation with the detective when she sought to correct misinformation she had been given earlier. So I think for these reasons it is admissible.

MS. CLARK: Well, my list of exhibits that I have in front of me doesn't show it, but was her initial police report admitted in the statement she gave on June 15th?

THE COURT: I don't believe so.

MR. DOUGLAS: It wasn't offered.

MS. CLARK: Oh, yes, it was marked by the People. The point being, your Honor, that this would not admissible under that theory unless the People had marked and admitted her initial statement as a prior inconsistent statement.

THE COURT: No. I think that if you attack somebody's testimony at trial, then the offering party can bring in a prior consistent statement.

MS. CLARK: But it doesn't qualify as a prior consistent statement because it wasn't previous to the inconsistent statement.

MR. DOUGLAS: I think--

(Discussion held off the record between Defense counsel.)

MS. CLARK: You know what I'm saying? I mean--

THE COURT: I know what you are saying.

MS. CLARK: It was--it sounded confusing to me, but she made a prior inconsistent statement on June 15th. That was her initial statement. She then changed it after the preliminary hearing on July the 8th. So that--and that was the statement that was consistent with her testimony at trial. It doesn't qualify. It is not prior in time to the inconsistent statement.

MR. DOUGLAS: It is consistent with what she said on direct. She was impeached on cross-examination and she offered her prior consistent statement to what she said on direct.

MS. CLARK: That doesn't satisfy 1235 or 770, your Honor. That doesn't meet the--that doesn't meet the requirements. It has got to be prior in time to the inconsistency.

THE COURT: All right. 1236 of the evidence code says: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his or her testimony at the hearing and is offered in compliance with section 791." And Miss Clark, just so you can cross-reference your own words, the prior statement that was put in by the People as People's exhibit 495 is the June 15th statement of Miss Aaronson, so there are--so under 1236 and 791 I'm going to overrule your objections. Okay.

MR. BLASIER: Your Honor, can we go back to 1224? I found the page in the transcript where that was all discussed.

THE COURT: Give me the page number, please.

MR. BLASIER: 35340, same objections were made and they were overruled.

THE COURT: Okay. 1237.

MS. CLARK: Your Honor, what were the--I missed it.

THE COURT: 35340 was the page cite on--

MS. CLARK: Okay.

THE COURT: We will come back to that.

MS. CLARK: All right.

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

THE COURT: All right. 1236.

MR. DOUGLAS: Was there an objection to 1236?

THE COURT: I show in my notes objections to 1236 and 1237.

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

MR. DOUGLAS: Can I see 1236, your Honor?

THE COURT: 1236 is the September 12th statement by Aaronson.

MS. CLARK: Your Honor, again, September 12th, that statement doesn't qualify under 791. I mean, it is the same problem. The evidence of a statement made that is inconsistent that has been admitted, the prior consistent statement has to be--it has to have been made before the alleged inconsistent statement, which was on June the 15th, which obviously it was not. Secondly, before the motive to fabricate has arisen, and the People's position clearly is that this was a groupie who wanted to get herself injected in the trial and that motive existed at the time that she was--at the time that she recontacted Detective Kilcoyne and realized it was going to be a very high-profile case which was on July 8th and she began to restructure her testimony to make sure that it would be relevant. That is the motive. Now, September 12th certainly is not prior to that time, nor is it prior to the June 15th prior inconsistent statement. And the People submit that it does not qualify under 791.

MR. DOUGLAS: Submit it on the other comments, your Honor. I think the rulings are consistent.

THE COURT: The objection is overruled. 1237, phone bill. Miss Clark.

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

MS. CLARK: Hearsay and irrelevant.

MR. DOUGLAS: One, your Honor, certainly I think it is very relevant because it helps to explain why Miss Pilnak was certain that various acts occurred at different times. I think that it is in fact a bill from the phone company. We have been introducing these sorts of documents by stipulation in other forms. I don't think that there is any sincere challenge to the authenticity of the bill. I think it offers sufficient guarantees of trustworthiness for its admissibility. But she was--as you recall, she was very exact in recounting what events occurred at certain times, when she called her mother, when Miss Telander had left, and that bill corroborated the specificity with which she offered her testimony.

THE COURT: My recollection is that she testified that this was her phone bill.

MR. DOUGLAS: Correct.

THE COURT: All right. The objection will be overruled. All right. 1240.

MS. CLARK: Hearsay objection.

MR. DOUGLAS: That objection--well, that document, your Honor, was offered to demonstrate Mr. Heidstra's state of mind that when there was an occasion where he and other witnesses could recount and go through various observations from June the 13th, that this was in fact his state of mind, not to discuss with other potential witnesses. It reinforced our claim that he was not biased, that he was not polluted by the presence or potential testimony of others. Particularly with Mr. Heidstra that has become a very real challenge. I will simply remind the court that four of the eight names we were given as rebuttal witness were witnesses seeking to rebut Mr. Heidstra. His credibility, his bias, if any, are therefore raising or rising themselves in importance, at least to the People's version of the evidence, and this supports or attacks any suggestion that when we try to gather people together to go over certain steps and observations that there was no polluting.

MS. CLARK: Your Honor, it is not relevant for that purpose. It is a letter from Mr. Bailey to Mr. Heidstra. I don't know how that impacts on--that illuminates us as to Mr. Heidstra's state of mind or his credibility at all.

THE COURT: All right. Thank you, counsel. The objection is sustained. All right. 12--

MS. CLARK: We have to add 1241, your Honor. It was inadvertently left off of our list. It is a two-page statement of Mr. Heidstra.

MR. DARDEN: I thought I objected to that yesterday.

MR. DOUGLAS: It is on my list, your Honor, and I will offer the same comments and adopt those comments that I offered as respect to Miss Aaronson. Again, Mr. Heidstra's credibility will be viciously attacked, strongly attacked--I don't want to characterize it--and this is a prior consistent statement offered to rebut a claim of recent fabrication that he is fabricating at this hearing when he testified as he did.

MR. DARDEN: Well, I can assure the court that Mr. Heidstra's credibility will not be attacked viciously. In fact, we think Mr. Heidstra's testimony is very helpful to the Prosecution and in fact what we intend to do is buttress Mr. Heidstra's testimony. Still, however, it is--it is hearsay, it is an out-of-court statement. It was alluded to somewhat during the trial. That is what he said previously and he testified on the stand to what he has stated previously. The detectives have not been called into court to testify to the accuracy of the statement, to--it has not been authenticated by any official police official. It is hearsay and it is being offered for the truth of the matter stated.

MR. DOUGLAS: I'm a little curious as to the comment that there will be witnesses offered to corroborate his testimony, because that is not my understanding of the proper purpose for rebuttal. I think they were being offered to rebut his testimony, but we will take that up later in our next motion. But I certainly think that, your Honor, this is being offered to rebut a claim of recent fabrication that he might have had some motive or bias in favor of Mr.--

THE COURT: I understand that, but the objection that Mr. Darden made, though, is foundation because this was a statement taken by Detective Payne and Detective Parker, neither of which testified.

MR. DOUGLAS: Your Honor, I believe--and I don't have a specific recollection of where this exhibit was discussed--I believe Mr. Heidstra was asked about it, he then agreed that the statements that contained in that statement were accurate and that it accurately reflected what he had told them on that day.

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

(Discussion held off the record between Defense counsel.)

MR. DARDEN: I'm not sure that allowing this statement in would be consistent with the court's earlier ruling on the Aaronson statement.

MR. DOUGLAS: It was offered on page 36435 and there was no objection at that time.

THE COURT: 46435.


THE COURT: 36. All right. I will take a look. All right. 1253--I'm sorry, 1250, video of--

MS. CLARK: 1253?

THE COURT: 1250, video of Mr. Simpson arriving at Rockingham.

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

THE COURT: Who was the videographer who testified to this?

MR. DOUGLAS: This is Mr. Thompson, your Honor, the tall gentleman who put the handcuffs on Mr. Simpson. He testified and authenticated the accuracy of what was depicted there.

THE COURT: Miss Clark.

MS. CLARK: Was that subject to redaction?

MR. DOUGLAS: All the videos have been subject to redaction to that extent that they were shown before the jury.

MR. DARDEN: I know there is a one-attorney rule, but there was an issue I think of the sound. There was sound in that video which was not aired for the jury, so--

MR. DOUGLAS: Then we can do what we did with the Mazzola demonstration video and have a little post-it put on there that it should be played without sound.

MR. DARDEN: As I understand it, the video contains only the--does it contain--

THE COURT: All right. Only the portion that was displayed for the jury and without sound as to both 1250 and 1251.

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

THE COURT: All right. 1252 has been withdrawn.

(Deft's 1252 = withdrawn)

THE COURT: 1253.

MS. CLARK: Your Honor, as to the those--those videos at Rockingham, there was no videographer called.

THE COURT: I know. I asked if Mr. Thompson was the videographer and my recollection was refreshed by Mr. Douglas' comment that was Officer Thompson--

MS. CLARK: Right.

THE COURT: --who testified to the videotape.

MS. CLARK: Right.


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

THE COURT: All right. 1253, vehicle impound form filled out by John Meraz.

MS. CLARK: The objection, your Honor, is hearsay and lack of foundation. He only filled out a small portion of that. The balance was filled out by other witnesses who were never questioned about it or able to authenticate it.

MR. DOUGLAS: I think, your Honor, is that this is in fact a business record. It certainly carries sufficient guarantees of trustworthiness. I don't think that the People are suggesting that it is inaccurate or that it is misleading, because it is a document that was used for the purposes of the testimony. Mr. Meraz did in fact identify those portions of the form in his penmanship and those portions which were not. Submit the matter on that.

MS. CLARK: The foundation was not laid for a business record at all, your Honor, and it was incapable of being played because they didn't have--they never called the appropriate witness to do so. And I would not vouch for much of the--for some of the writing on it because it was made by people at Viertel's, and based on what may have been misunderstanding between them and police officers, so, no, absolutely no, I don't concede at all that it is trustworthy or reliable, and there is no adequate foundation laid with the appropriate witness to have it admitted.

THE COURT: Excuse me, counsel. Which portion of this exhibit did Mr. Meraz fill out?

MR. DOUGLAS: I recall the top half and I believe there was something toward the bottom. If I could see the form to refresh my recollection.

MR. SCHECK: Your Honor, while Mr. Douglas is looking at it, if it will assist the court for the Heidstra--statements for Heidstra, I have looked at the strips and if you look at page--

THE COURT: Why are you referring to a Styrofoam cup, sir?

MR. SCHECK: That is where I wrote down the numbers. If it would assist the court, starting at page 36438 and then going to page 36446, the entire statement is read into the record during the course of questioning Mr. Heidstra and he adopts it and it is read in with quotation marks.

MR. DOUGLAS: Your Honor, this is also being offered to corroborate Mr. Meraz' state of mind.

THE COURT: Mr. Douglas, my question was what part of this document did Mr. Meraz fill out?

MR. SCHECK: I know.

MR. DOUGLAS: The top.

MS. CLARK: I would point out to the court there are many different handwritings on this document.

(Discussion held off the record between Defense counsel.)

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

MR. SCHECK: Your Honor, maybe we could go back to the transcripts. My recollection is, is that his testimony was that this is a document that is filled out in the regular course of business through Viertel's and the police department, that when he received the document he had seen Detective Haro fill out a number of the entries here. He then signed in the middle line where it says "Garage employees" and I think he then put down the license plate number and reviewed the rest of this material. So we are offering it as a business record with a proper foundation there, and when we get to the transcript, we can--I know that he specifically testified as to which parts he filled out, but he adopted the rest of it.

MS. CLARK: He can't adopt the rest of it, your Honor. He can't vouch for someone else's writing on that form or the veracity or the trustworthiness of it. And they did not even attempt to lay an appropriate foundation it is admissibility.

MR. DOUGLAS: Page 38260, your Honor, and it would also be offered as an alternative to reflect Mr. Meraz' state of mind that there was no hold then preventing or requiring that the vehicle be placed in a particular area, a secure area, and that--

THE COURT: Aren't we really quibbling over something that is of little moment? The issue being he testified he didn't see blood and he didn't think it was being held in a secure area. I mean, that is really the import of his testimony.

MR. SCHECK: The other basis for admitting this that Mr. Douglas referred to has to do with the direct examination of Detective Mulldorfer at 38259 where she indicates that she conducted an investigation, interviewed the principle parties and determined that this was the form that was filled out. And even then went into detail as to who signed what and she authenticates this as an official business record of the garage and talks about the rules--and I put her on--the rule with respect to what parts of this are supposed to be filled out and for what purposes.

MS. CLARK: She couldn't--

MR. SCHECK: We think that Detective Phillips' testimony and the citation to the pages we told you would be sufficient foundation and she described at length what this impound form means.

MS. CLARK: Your Honor, she--

THE COURT: Excuse me. Where is that?

MR. SCHECK: It starts on page 38259 and I think she certainly is a proper witness. It was her assignment--

MS. CLARK: Your Honor, may I be allowed to complete what--

THE COURT: Wait, wait.

MR. SCHECK: I think that the foundation was that she testified that she was assigned in the city attorney's office to investigate these garages.

THE COURT: I recollect who she is.

MR. SCHECK: That she was familiar with their rules and procedures and she also proffered a series of lists talking about rules and procedures.

THE COURT: All right.

MR. SCHECK: She authenticated this form and others and found Viertel's in violation, so I think her testimony lays a sufficient foundation.

THE COURT: All right.

MS. CLARK: Your Honor, she is not the proper witness for that form. She is not the one who uses it. She is not the one who filled it out. You need to call somebody to lay a business record foundation to establish that they are familiar with the form, the manner which it is filled out and establish its trustworthiness and she can't do that. She may recognize the form, but she is not familiar with the manner in which it is filled in and who has to fill it in and the people who are under a duty to do so. And the problem with this particular document is there are a number of people who put in information on that form. At the very least, if the court is going to admit it, then the form should be redacted to include only that part that Meraz wrote on, if they want to use it for that purpose to corroborate his testimony, but the part that is filled in by others who are under different duties than Meraz should not be admitted because that cannot be vouched for with the testimony that we have.

THE COURT: All right. I will look at the transcript.

MR. SCHECK: If I may just--

THE COURT: All right. 1257.

THE COURT: Miss Clark.

MR. SCHECK: Just in passing, your Honor, just--just so the court is aware, the section that Miss Clark is concerned about is the box at the top that says "Give no special care" and I just want the court to know we will reopen our case to put this in.

THE COURT: Counsel, I have concluded the discussion. Thank you.

THE COURT: All right. EDTA slide, 1257. Miss Clark.

MS. CLARK: That was all the slides, 1257-A--

THE COURT: Correct.

MS. CLARK: --through S? The objection, your Honor, is 352. It is misleading and confusing. If the court will recall, there were a number of charts that were shown to Dr. Rieders that--the ion wars. I remember.

THE COURT: The daughter wars.

MS. CLARK: Yeah, the daughter wars and I still haven't figured out why they have no sons, but they have--they compared--

THE COURT: I wondered that myself.

MS. CLARK: They compared different days on some of the charts, your Honor. There was also a confusing juxtaposition of different results obtained at different times, and the problem that we had with all of those slides was that it was misrepresentative of the actual results that were obtained. Now, given the fact that they did not do any testing to justify the manner in which they put these together, there is no reason why Agent Martz' testimony indicating the misleading nature of those slides and the juxtaposition of those results should be disregarded. The only real testimony you have concerning how the results should be viewed and in what way they should be compared with each other is Agent Martz because he was the one had operated the machine, he was the one who ran the test. Dr. Rieders did nothing but look at his charts and his graphs. And the problem is, as you recall, that Agent Martz testified that the machine--the column is very sensitive. It will run high one day and low another, and so you cannot compare results from one day to the results of another. In fact, you can't even compare results from the morning to the evening because the column is so sensitive. The results have--the tests have to be run at the same time or within minutes of each other to be valid for comparison in terms of concentration of the ions. And the problem with some--with these charts, as I recall, is that they did not do that. There were different days and different times put together in an effort to mislead and make it look as though there were discrepancies where there really weren't and there is to basis for doing that. In fact, it is very misleading and confusing to the jury.

THE COURT: Mr. Blasier.

MR. BLASIER: Well, I think Miss Clark is talking about other slides. 1257 was the first set of slides that just illustrates what the process of chromatography is and each slide was gone through with Agent Martz and there were two charts from two different days that was explained to the jury. I'm not sure which--I think she is talking about some later charts, but this was all gone through with the jury. Agent Martz was allowed to explain anytime he disagreed with anything. And I don't see what the problem is.

MS. CLARK: Maybe he is right. Let me see.

THE COURT: I think it is a combination of both how the mechanism works and the specific results of testing in this case by Agent Martz. I think we have both of those here.

MS. CLARK: Right. Okay. I'm looking at A, B, C, D, E, F. I think so far so good. Bob is right.

MS. CLARK: Through L is okay. Withdrawn on that. A through L withdrawn, your Honor.

THE COURT: All right.

MS. CLARK: Here is the one, 1257-P. So far I've gotten through O and there is no objection. P is a problem, your Honor, and the reason it is a problem is that it assumes something that is not in evidence, that is, the location of where 206 was taken from, right? 206 and 207, no one knows exactly what area of the stain those came out of. It has never been--there was an assumption that one was taken out of a corner of the stain, corner of the cut-out area, and that 206 came out of another spot. In other words, it makes an assumption that 206 and 207 came from different areas of the stain.

THE COURT: All right.

MS. CLARK: And we don't know that to be true at all, so it is very misleading. In fact, they might very well have been on top of each other, right next to each other, and that is important in terms of the concentration.

THE COURT: May I see?

MR. BLASIER: That is testimony about Q206, that that was approximately where it came from. There was actually a cut on the--Q207 I would agree with Miss Clark, that we don't know where it came from to the extent that it came from the lower corner, and that was explained by Agent Martz, that I don't know if it came from that corner, but it came from that large cut-off. So I think that is all that illustrates and I think that was stated on the record.

MS. CLARK: I think Bob is correct. The problem that we have, though, is as it is depicted there it is very misleading because the jury is not going to remember how Agent Martz explained it or didn't explain it. They are going to have a big picture back there or during argument that purports to place 207 where it has never been established it was, and it is--that is an important point. It is not nitpicking because where 207 came from in relation to 206 is important in terms of the concentration of blood.

MR. BLASIER: But it was all explained. I mean, that is--nothing misleading about it. They were told that we don't know exactly where it came from the cut-out. This is to illustrate that was part of the cut-out.

THE COURT: But this slide can be modified, correct?


MS. CLARK: If--if Mr. Blasier would take out 207, just take it out of the photograph, then I wouldn't have any objection.

THE COURT: All right. I think what we can do is label that 207 came from somewhere in the green area.


MS. CLARK: Take that box out.

THE COURT: Take that box out.

MS. CLARK: Great.

MR. DOUGLAS: Which one is that, your Honor?

THE COURT: This is 1257-P. Aren't you keeping track of these things?

MR. DOUGLAS: I lost track, your Honor.

THE COURT: All right. Counsel, I'm going to take our recess at this point and we will stand in recess until two o'clock.

MR. NEUFELD: Your Honor, just a clarification just so we know this afternoon. We have another motion on this afternoon.

THE COURT: We have to finish this.

MR. NEUFELD: Not only finish this, but we also have to finish the scope of rebuttal and we have specific discovery problems regarding that as well that must be resolved today, because as you know, they want to commence their case on Monday and they--they had really the--

THE COURT: Counsel, you don't need to argue it now. I am aware of all these matters we have to take up, and we will start at two o'clock, but we will finish this. All right.

(At 12:01 P.M. the noon recess was taken until 2:00 P.M. of the same day.)


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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Where were we? 1--1251-E'ish. And counsel who are here for the motion regarding access to tapes, et cetera, et cetera, I've got to finish this first. So if you want to take an hour and get a cup of coffee, be my guest. Yes. All right. Miss Clark, where were we? We had gone through P as I recollect.

MS. CLARK: That's right, your Honor. We got up to 1257-Q. And I asked for Xerox copies from Deirdre to look at over the lunch hour. Unfortunately, the Xerox copies don't tell me the date and the stuff that I need to know to identify the charts. So I thought it was a good idea at the time, but it didn't quite pan out. So if I could look at the originals again to see if I could get a little more detail unless Mr. Blasier could tell me offhand. Do you know?

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

MS. CLARK: Thank you, your Honor. I think if we put it on the elmo or laser, I will be able to read it and I can--

THE COURT: We don't have--I've excused our elmo operator.


THE COURT: I don't need to see it on the elmo.

MS. CLARK: No. I do, your Honor. I can't--because it's too small and being as I can't tell which charts they are, I can't read--

THE COURT: Here. Let me give you my magnifying glass. No. Mr. Ormond, I gave the rest of the day off. I didn't think we would be using the--

MS. CLARK: There's no reason to think that we would. Actually, Henry Lee gave me his. I should--

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

MS. CLARK: You know what? If I could get the chart from Deirdre that the People marked, that will--

THE COURT: Do you want to pass this whole series?

MS. CLARK: Yes. Come back.

THE COURT: All right. How about 1261, bar chart, EDTA?

MS. CLARK: Do you have that, your Honor? Withdrawn. Objection withdrawn.

THE COURT: All right. Objection is withdrawn to 1261. 1263, a letter from the D.A.'s office to Special Agent Roger Martz with lots of writing on it.

MS. CLARK: This is the one--

THE COURT: Do we have a clean copy of that?

MR. BLASIER: Yeah. We can substitute a clean copy.

MS. CLARK: People's objection is that it's hearsay and that it's irrelevant.

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

MS. CLARK: People's objection is that it's hearsay and it's irrelevant, your Honor. I think it was offered to show bias on the part of the witness. That letter would not go to the witness' state of mind. It would go to the writer's state of mind assuming that it showed any bias, which it doesn't. It asks for the receiver of the letter to detect the presence or absence of EDTA without indicating that a particular result should be obtained.

THE COURT: Mr. Blasier.

MR. BLASIER: Well, that same objection was made at 38627 of the transcript. It was overruled at that time. I don't know if there's anything new about it.

THE COURT: Well, I overruled its--I allowed its use for examination of that witness, but that witness was not the author of the letter.

MR. BLASIER: No. That's correct. But it demonstrates what he was told, this is what we want you to do and it's relevant to his state of mind. It's not offered for the truth of the matter stated certainly.

THE COURT: All right. The objection will be sustained. All right. 1267, the food iron absorption article.

MS. CLARK: Your Honor, this was the--

THE COURT: 1267.

MS. CLARK: Right. This was the article that had been referred to by Dr. Reiders as--in his attempt to say that there had been a study that had been--a study that has been used to determine the average daily amount that--of EDTA that would be found, but he wound up having to concede that that in fact was not shown by the study at all. The study was for a different purpose and it was--what they did was they injected EDTA for the purpose of determining what would be left after certain periods of time, but that does nothing to indicate what trace amounts would be found if everyone's blood was tested for various types of EDTA. So it's very misleading. I believe the court initially had ruled that he could not bring that article out and could not be questioned about it, and then Dr. Reiders just kept talking about it basically. I mean, he wasn't even listening to my questions. So I think the court earlier ruled that it could not be used and we simply urge the court not to allow its admission. It is irrelevant, it is misleading and confusing as Agent Martz indicated as well when he had to go back and try to unravel it.

MR. BLASIER: Miss Clark's confused. She's talking about 1268. 1267 is the article about the average person's maximum daily intake of EDTA in a diet would be 50 milligrams and that would lead to a certain level in the blood. But as to both of those exhibits, Agent Martz testified--in fact, he was the one that was asked if that's the article he relied on when he gave that figure of 50 milligrams a day, and he said yes, it was. 1268, the article, the absorption article that she was talking about also was testified to extensively by both Dr. Reiders and Mr. Martz. They both relied on it. They relied on it for different purposes. But it was extensively discussed, identified by both of them and relied on by both of them. They disputed what it would have showed certainly, but it doesn't detract from the fact that they both relied on it.

THE COURT: Well, the fact that they both relied on it though, the fact that these are both scientific articles out of scientific journals, I mean, isn't there a danger here that we're--I mean, Dr. Reiders testified, Agent Martz testified and you have exhibits that say what their testimony was. I mean, why do we need these articles?


THE COURT: I mean, do you seriously expect the jury to go back and read scientific journal articles?

MR. BLASIER: I don't know. I would hope not, but I mean they were referred to, they were read--parts of them were read into the record. If they have any confusion about which doctor, whether Dr. Reiders was right or Agent Martz was right and what those articles said, they might want to refer to them. The fact that they probably won't I don't think is a reason not to have them admitted.

MS. CLARK: Well, your Honor--

MR. BLASIER: And we might want to make reference to them too.

MS. CLARK: --with respect to--I'm sorry to interrupt, but with respect to 1267, that was--I just got my memory refreshed. That was the FDA listing of EDTA amounts in food, and the People withdraw their objection to that. I've just been shown the reference in transcript. But we maintain our--but Mr. Blasier is correct, 1268 is the one that we have the objection to because--and that is completely misleading. It was--Dr. Reiders attempted to use that article to buttress his position as to what--what, if any, amount should be found in people on a regular--a normal regular person on a daily basis and, in fact, it does not direct itself to that at all, which is why it's so misleading and confusing and not to mention very complicated.

THE COURT: All right. This is the article that deals with the injection of EDTA.

MS. CLARK: That's right. 1268 does. I'm sorry, your Honor. So--

THE COURT: All right. Not only are they confusing scientific articles. We're confused as to which one is which, correct?

MR. BLASIER: I'm not.

THE COURT: All right. Well, Miss Clark and I are confused as to which one is which. All right. I will sustain the objection as being irrelevant because this does deal with injected EDTA, not ingested EDTA. All right. Next, Cambridge Isotope Laboratory's two pages. This is the catalog that shows that EDTA compounds, what as research compounds for testing and comparison purposes, correct?

MR. BLASIER: No. That there was an internal standard readily available.

THE COURT: All right. Miss Clark.

MS. CLARK: The objection I had down was insufficient foundation and hearsay, and I can't remember what Dr. Reiders did to lay the foundation for it now. It escapes me.

MR. BLASIER: Dr. Reiders didn't testify about that at all. It was Agent Martz who was shown the catalog and testified that he recognized this as a catalog from Cambridge and looked at that page in the catalog and said, yes, that does look like the internal standard that could be used and described what the price was.

THE COURT: 250 bucks if I recollect.

MS. CLARK: Right.

MR. BLASIER: Something like that.

MS. CLARK: Right. Submit it.

THE COURT: All right. The objection will be overruled. All right. 1271-A through C, ion counts.

MS. CLARK: This is the one, isn't it, Bob?

MR. BLASIER: Yeah. Maybe I can shortcut this. The third slide was a demonstration slide that I did adjusting some of the quantities. It doesn't reflect actual test results. It reflects those multiplied by various numbers. I have no objection to that not being given to the jury, but I certainly think we're entitled to argue that. I mean, that's something we can present in argument. But since it didn't result in any specific results from any test, I have no objection withdrawing it with the understanding we can still make the argument of course and show it in argument.

THE COURT: Miss Clark.

MS. CLARK: Okay. Let me make sure, if I can look in the transcript very quickly for a and B, I may withdraw.

THE COURT: All right.

MS. CLARK: Let me see.

MR. BLASIER: I believe those two are just straight chart that--marks of imprint.

MS. CLARK: Do you have--this is--these are the charts, your Honor, that have the different dates.

MR. BLASIER: And they were objected on that ground. I think we added the dates to them.

THE COURT: Do you need the magnifying glass again?

MS. CLARK: No, I don't. Thank you, your Honor. I probably should get glasses. These--as to A, your Honor, we have here the adjusted position of February 22nd and February 28th for the same--

THE COURT: Are they marked as such?

MS. CLARK: They are, and I'm not disputing that they aren't. But with respect to b--your Honor, could we pass these? I may withdraw the objection. I wanted to see what Agent Martz said about these two slides. And if we don't have to argue an objection, I'd like not to. I'll have--Miss Martinez will find the part.

THE COURT: Okay. Then we can move to my second favorite objection, socks.

MS. CLARK: It's just a brown sock. And the relevance would be--


MS. CLARK: Socks. Yeah, they're not the same as the ones in evidence. So what's the relevance?

MR. NEUFELD: Your Honor, the exclusive relevance of the sock was simply to coincide with the testimony of Herb MacDonell to enable him to explain what surface 1, surface 2 and surface 3. If it isn't obvious to this jury it isn't the same sock only offered for that purpose, it would be truly extraordinary.

THE COURT: I don't even think this needs to go into the jury since everybody knows what socks are.

MR. NEUFELD: Fine, your Honor.

THE COURT: Okay. Withdrawn.

(Deft's 1279 for id = withdrawn)

THE COURT: Okay. We actually skip a whole page. 1317.

MS. CLARK: I'm sorry. So 1279, is it--

THE COURT: Withdrawn.

MS. CLARK: Withdrawn?

THE COURT: 1317.

MR. GOLDBERG: Yes, your Honor. I will be handling that. That was Michele Kestler who testified. This was an item of handwritten notes by Gregory Matheson which was shown to the witness for the purposes of refreshing her recollection. I just reread the transcript, relevant transcript sections, and, in fact, it did refresh her recollection that they had certain meetings shortly after the crime scene was processed on the 13th of June regarding case security. That's all it was used for. The document itself is not an official forum, it's not a business record. I don't know why it's being offered.

MR. NEUFELD: Is this considered listed as one of the objected items yesterday? We'll withdraw it.

THE COURT: All right. Withdrawn.

(Deft's 1317 for id = withdrawn)

THE COURT: Mrs. Robertson, get that?

THE CLERK: Yes, your Honor.

THE COURT: All right. Thank you. 1318.

MR. GOLDBERG: Your Honor, this was the memorandum from Chief Gates that I believe was 24 years old.

THE COURT: No. It's older than that. It's from assistant Chief Gates.

MR. GOLDBERG: Oh, it was? Okay. And I also just checked the transcript on that and there was--

MR. SCHECK: We'll withdraw it. We'll withdraw it.


THE COURT: Withdrawn.

MR. SCHECK: Although it was a very interesting document.

THE COURT: Aren't they all?

(Deft's 1318 for id = withdrawn)

THE COURT: 1319.

MR. GOLDBERG: Your Honor, I'll make the same objection that I previously argued this morning with respect to the collection.

MR. SCHECK: You've already admitted these.

THE COURT: I'm sorry?

MR. SCHECK: This is the same collection memos.

MR. NEUFELD: You've already admitted it.

MR. SCHECK: Isn't this--


MR. SCHECK: --collection of preservation of body fluids?

THE COURT: Yes. All right. 1320.

MR. GOLDBERG: 1320 is the summary that was done in preparation for the griffin hearing which was a typewritten summary. This particular document was not a business record and it was generated by Greg Matheson. There's a very similar or identical document I believe that was actually testified to by Greg Matheson which came in since he was the witness that created it. But this particular version of it, typewritten version is not--cannot be authenticated and not fall within any exception to the hearsay rule.

MR. NEUFELD: Your Honor, my understanding--my recollection was that she did authenticate it. In fact, it was authenticated twice. She testified to this typed version of it at that hearing before your Honor last summer and there was the same report that was shown to her on the witness stand in front of the jury, and it was a typed version that she participated in the preparation of. I--I disagree with Mr. Goldberg's recollection of this.

THE COURT: All right. Anything else?

MR. NEUFELD: No. I think the foundation is there, the authentication is there.

MR. GOLDBERG: I just ask the court to reread the transcript because this particular one was prepared by Mr. Matheson. She was present, but--during the--when the handwritten version was made, and the handwritten version as I recall is in evidence.

THE COURT: All right. All right. The objection will be overruled.

MR. GOLDBERG: Objection will be what?

THE COURT: Overruled. 1329. This is the photograph of 112, blood spot.

MR. SCHECK: This is a substitution question.

MR. GOLDBERG: Your Honor, on 1326-B, according to my notes from our discussions yesterday, the Defense was going to withdraw that.

THE COURT: That's correct. 1326-B is withdrawn.

(Deft's 1326-B for id = withdrawn)

THE COURT: All right. 1329.

MR. GOLDBERG: These were items that the Prosecution--1329 and 1330, that the Prosecution wanted to have permission to cross-reference and put post-it's on. Other than that, we didn't have an objection to them.

THE COURT: All right. Do you know what cross-reference that should be to?

MR. GOLDBERG: Well, I think the cross-reference to 1330 is 1098 and I don't have the other--a cross-reference for 1329 yet.

THE COURT: All right. 1330. This is the one--this is an elmo printout where the detail on the door sill is lost in the elmo process. So we are going to cross-reference this to the actual photograph. Do we have the number to cross-reference that to, and I can put a post-it on it?

MR. GOLDBERG: On--you said 1330?

THE COURT: 1330.

MR. GOLDBERG: That's the one that according to my notes--

THE COURT: 1098. 1098. All right. All right. And, Mr. Goldberg, your staff will prepare a label indicating cross-reference People's exhibit 1098?


THE COURT: Okay. Okay. Now, I have objections, 1331 through 1336.

MS. CLARK: I'm going to stand in for Mr. Darden on that, your Honor.

THE COURT: All right. These are all photographs from Chicago.

MS. CLARK: Thank you. We can go back to the EDTA whenever you want. I've had a chance--could we have--the People marked I think similar photographs, if I could see them. Let me ask--let me show these to Mr. Douglas.

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

MS. CLARK: No objection to these. And in regard to that, Mr. Douglas indicates he will not object to the People's exhibits. Let me name them for the court so we may save time. 581-A, B, C, D, E, F, G, H, I, J, K.

THE COURT: All right. Objection withdrawn?

MS. CLARK: Withdrawn with that agreement.

MR. DOUGLAS: They're the same pictures, your Honor. So I don't object to the entire set coming in.

THE COURT: Terrific.

MS. CLARK: Oh, and the big one. You also agree to the post-it board of the washcloth?

MR. DOUGLAS: I hope so.

MS. CLARK: Yes. No objection.

THE COURT: All right. We are going to cross-reference 1337 and also 1337-C. Mr. Goldberg, that was your suggestion?

MR. GOLDBERG: 1337-C. Yes, your Honor.

THE COURT: Did we get another exhibit number?

MR. GOLDBERG: We don't have that yet, but we will get that.

THE COURT: All right. Okay. Then we skip page 18. 1360.

MR. GOLDBERG: We have 1341. I have a note about cross-referencing that, but that might be difficult. I think that's one of Mr. Blasier's boards.

THE COURT: I don't think either side has any problem cross-referencing similar exhibits.

MR. GOLDBERG: Okay. Then I won't bring those up.

THE COURT: 1360-A, which appears to be two pages of Gary Sims' notes.

MR. GOLDBERG: Yes. These were--it was a page of Gary Sims' notes that notated some transfers on bindles and objections were sustained to that when the Defense tried to elicit from Dr. Lee what was indicated in the notes.

THE COURT: Defense.

MR. SCHECK: Well, my argument is that these notes are notes that Dr. Lee testified that he would generally rely upon from other experts in the field. They're the laboratory notes of the analysis of the bindle and they document that Gary Sim's--there was a cross transfer. So I think that under the--

THE COURT: Well, is there any dispute given what we've seen from the photographs that they were a cross-transfer?

MR. SCHECK: No, there's no dispute that there's a cross transfer, but what's significant is that Gary Sims noted it and when he noted it. That is a significant evidentiary point.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Your Honor, I thought we were not going to relitigate issues that had already been resolved the first link to the party, and I've been trying to stick to that. This isn't an issue where--I'm not positive. I think we may have gone to sidebar. But at any rate, the court did make a ruling and several times sustained objections. We would like that the hearsay rule to be enforced. It is hearsay. There is no authentication for it.

THE COURT: All right. Objection sustained. All right. 1363.

MR. GOLDBERG: Your Honor, this was an article that I objected to. It is our position that when you are using an article from a scholarly treatise, the article itself doesn't come in. However, for tactical reasons, the People are withdrawing our objection to this particular exhibit.

THE COURT: All right. 1364. Miss Clark.

MS. CLARK: Yes, your Honor. I'm standing in for Mr. Darden. Those were the questions propounded to Officer Fuhrman by Laura McKinny. The problem with it is, your Honor, that it goes far beyond the material deemed admissible by the court and basically makes reference to what I believe to be sections of the tapes that were deemed inadmissible or responses or it's not deemed inadmissible, were not requested to be admitted by the Defense and not known to the jury. So the problem is really that the questions go far beyond the testimony that was deemed admissible by the court. I think it would cause the jury to speculate about what else was said and the balance of the conversations that were neither proffered by the Defense nor ruled admissible by the court.

MR. DOUGLAS: Your Honor, I take that as being a 352 objection. I do think, however, that it is very germaine to the question of what Miss McKinny was trying to do. Was she simply working on a work of fiction, was there any realistic components to any of that. I think that the colloquy suggested by those sheets and that exhibit enforce our claim that when any words were spoken by Mr. Fuhrman and the 42 times that he uttered the "N" word, he was not doing so in any sort of character. Rather, he was reflecting more his own personal viewpoints because the letter--the questions speak to different issues and areas of general concern and make it clear that he's not being asked certain questions in any sort of a theatrical or fictional context. I think that's going to be a very important aspect for the jurors' assessment of the value of her testimony in this case.

MS. CLARK: But, your Honor, the problem I have with it is this. Miss McKinny was clearly capable of being very articulate to--in framing her answers to demonstrate what the Defense wanted her to demonstrate, which is that he was talking in the first person and not for any fictional character when he used racial epithets. If this set of questions is being asked for--to be admitted for that purpose, to establish that that is--that he was speaking for himself when he uttered those epithets, then the Defense does not need them because the People will never argue to the contrary. And if anyone needs any further assurance of that, let me state it on the record. I am not going to argue to this jury nor will I ever tell anyone that I think the racial epithets were used in a fictional capacity by Mr. Fuhrman. The problem--so that being given, that concession being given and will be repeated to this jury, there is no reason to admit these questions, which I think will cause a jury to speculate about what else they talked about that are way outside the bounds.

MR. DOUGLAS: If counsel is willing--because, your Honor, the negative is not sufficient for our purposes because the jurors on their own may associate the fact that there's a screenplay, that it's a fictional work based on fact as being suggestive of more. If counsel were willing to stipulate that, in fact, these were factual statements of his rather than saying I'm not going to argue it's fictional, I want the reverse of that. I want her to stipulate, and then I'll withdraw the exhibit, that, in fact, these were expressions of his own viewpoint and were not part of any fictionalized role playing because the jurors can on their own, without the assistance of counsel, interpret the answers and the conversations in a manner that will not be accurate and would be misleading, and this exhibit helps to place that in a better context. They're talking about issues of general concern. We're talking specifically about matters that we're dealing with general attitudinal points of view. There's no question suggesting play or role in telling someone what to say and I'm fearful the jury on their own may interpret something that's not true.

MS. CLARK: Well, the proffered stipulation as framed goes a little too far. It's clear from reading the transcript, as the court knows, that there were a lot of times that they were actively engaging in setting up fictional things. For example, the example of a cover-up that Miss McKinny kept trying to get before the jury was an example of a piece of fiction that she and Mark Fuhrman were working on. That was a situation where a suspect had been subjected to the choke hold or to some beating and the female officer was expected to cover it up. They were--that was the piece of fiction they were working on that she was trying to get before the jury. Nevertheless, what I'm getting at, your Honor, is this. The Defense seeks to have the jury know that when he used racial epithets, he did so on his own because that's the way he felt. I'm not arguing to the contrary. This set of questions goes far beyond that purpose, far beyond that purpose, going into all kinds of different areas and his viewpoints about them. And one of the questions even will assume facts not in evidence because it discusses his response to a social political question that was phrased--put to him in an earlier tape. So I would simply urge the court that it's way overbroad for the stated purpose.

THE COURT: All right. I'm going to sustain the objection under 352 because it does in fact deal with many situations that are not relevant to the issues before the court.

MR. DOUGLAS: Is it possible, your Honor, the court will reconsider and have us redact those areas that were not, in fact, discussed in testimony?

THE COURT: No. All right. 1368. A good number to end on.

MS. CLARK: How appropriate.

THE COURT: Yes, it is.

MS. CLARK: Your Honor, 1365, is that duplicative? I'm having trouble--

THE COURT: That was withdrawn.

MS. CLARK: Okay. Withdrawn. Is 1368--we just need to do is make sure that that is the one that was approved by the court for admission.

MR. DOUGLAS: It will be.

THE COURT: I believe it is. Mr. Harris indicates that that is true.

MS. CLARK: If we can simply make sure there's nothing else on that tape except what the court deems admissible, then there's--

MR. DOUGLAS: Miss Clark is welcome to sit here and listen to the entire tape to satisfy that concern.

MS. CLARK: All right. Thank you.


MS. CLARK: If we can go back then to what we earlier passed. As to the EDTA, your Honor, 1231?


MS. CLARK: Now I recall. As to 1271-A, in which the dates are labeled, there's no objection. As to 1271-B, here's the problem, your Honor. What it shows is that, it shows the gate and the positive control on February 28th and it shows them to be very different in amount, and it's misleading because the reason for the difference in amount, which is what the--which is what Agent Martz said, and I'm going to show the court the area of the transcript where he's asked about this--is that this was again a situation in which one was run in the morning and then there were a lot of runs, like 30 runs that day, and one was run at the end of the day. The column became desensitized. And so you had vastly disparate readings because of that. This chart makes no effort to explain that, and to the contrary, makes it very misleading because it does not anywhere indicate that there were some 30 runs in-between and hours in-between which accounts for the discrepancy in the amounts given, the sensitivity of the column. And I have for the court the relevant transcript portions.

THE COURT: No. I recollect the testimony.

MR. BLASIER: I think that that should be our argument, that there was complete testimony about this and his offered explanation. Our position is that that may account for some of it, but it also shows the imprecision of this methodology that he used. So it's been fully explained to the jury. It's not misleading at all. They've been told about it.

THE COURT: All right. What about C? You're withdrawing that?

MR. BLASIER: Yeah, with the understanding that I stated. We can argue that certainly and--

(Deft's 1271-C for id = withdrawn)

MS. CLARK: Well, we should argue that later. I don't think we should argue that now. But as to B, the problem is, if the jurors gets the chart, all they are going to do is see a very misleading chart that doesn't indicate the difference in the time of day, the separation by runs. It's very misleading and--

THE COURT: All right. I think Mr. Blasier's point though on this is well-taken, that it does show the imprecision of this type of testing, that if it differs by when you--the results differ by when you did it in the day and what run it was, that's something that you should think about.

MS. CLARK: That's true. Then why don't we simply ask it be modified to indicate that one was the different times that they were run because that is available information to Mr. Blasier.

MR. BLASIER: Well, all of those charts are at different times and different runs. Then we should exclude--

THE COURT: I understand that, counsel. I just ruled in your favor.

MR. BLASIER: Thank you.

THE COURT: You are welcome. All right. Objections overruled as to a and B and C is withdrawn. All right. What else do we have other than the ones we cited the transcript to the court, the court has to look at the transcript?

MR. BLASIER: 1224, hair and fiber slides. I provided the transcript references before lunch.

MS. CLARK: We did have a sidebar on that issue. I don't think that prevents the court from considering the subject matter again. People renew their objection. I still think it's misleading in that it tends to--it--

THE COURT: I'm sorry. We are talking about 1224?

MS. CLARK: That's right, your Honor. It contradicts the testimony of the witness in stating that there are no hairs consistent with O.J. Simpson on the Rockingham glove. That is inconsistent with the testimony of the witness.

THE COURT: Okay. I'll take a look at the transcript. So I have to still rule on 1036, 1043, 1052, 1132, 1170, 1224, 1241, 1253, and that's it. Mr. Douglas.

MR. DOUGLAS: Your Honor, I have another matter that dovetails into the argument that Mr. Blasier is going to give concerning the proper scope of rebuttal.

THE COURT: No. I just want to make sure, do we concur that those are the exhibits that remain to be ruled upon as soon as the court has the opportunity to review the transcripts?

MR. DOUGLAS: That comports with my understanding, your Honor, yes.

THE COURT: All right. Miss Clark?

MS. CLARK: Yes, your Honor.

THE COURT: Good. That was rather painless for 400 exhibits.

MS. CLARK: We have to mark some exhibits, your Honor. We have to renumber them. Miss Robertson informed me that I had incorrectly marked one and I forgot to bring down the sheet. I think I forgot to bring down the sheet that says what the renumber needs to be. I need to do it on the record.

THE CLERK: 601 should be 602. That's 602-A through E instead of 601-A through E.

MS. CLARK: So if I could, your Honor, the magnetic board that was previously marked as 601-A through E, which was of the interior of the Bronco, remark it as 602-A through E.

THE COURT: So marked.

(Peo's 602-A through E for id = magnetic board previously marked 601-A through e)

MS. CLARK: Thank you. Also, the videotapes of the exercise videos, we have the redacted versions here.

THE COURT: The commercial version or the studio version?

MS. CLARK: The outtakes.

THE COURT: The outtakes?

MS. CLARK: Outtakes? Outtakes. 521-A. They've been redacted I think as requested earlier, and then the motivational speech for juice plus, 522-A.

THE COURT: All right. So marked.

(Peo's 521-A and 522-A for id = outtakes and

Motivational speech for juice plus respectively)

MR. DOUGLAS: Your Honor, at a time of convenience, can Mr. Harris be allowed to check out those?

THE COURT: Absolutely.

MR. DOUGLAS: Thank you.

(Deft's 1010, 1011, 1016 through 1019A, 1027, 1043-A through C, 1053, 1055, 1078, 1082 through 1084, 1101 through 1104, 1117, 1118, 1121 through 1123, 1133 through 1134, 1140, 1143-A through G, 1154, 1183, 1191-A through B, 1215, 1217, 1220, 1221, 1227, 1233 through 1237, 1250, 1251, 1257-A, 1257-P, 1261, 1267, 1270 through 1271-B, 1320, 1328, 1329, 1331 through 1337, 1337-C, 1363 and 1368 - admitted into evidence)

THE COURT: All right. Mr. Douglas, you had something else you wanted to address the court on?

MR. DOUGLAS: Yes, I do.

THE COURT: And why don't we just right now set an agenda for the things we need to cover this afternoon. What other matters do you think we need to resolve this afternoon?

MR. DOUGLAS: Your Honor, we have to resolve the question of the rebuttal list that we were given today. I would like to speak concerning the lay witnesses, Mr. Neufeld about the scientific witnesses and the problems attendant to each. We have a matter to discuss in terms of our motion to limit the proper scope of rebuttal. As a corollary to both of those motions is the broader question of the discovery or lack thereof and what impact, if any, it will have on our ability to begin the rebuttal case on Monday.

THE COURT: All right. Miss Clark, this morning I saw a list of rebuttal witnesses go flying across my desk.

MS. CLARK: Right.

THE COURT: Correct?


THE COURT: Who do you anticipate as your witnesses for Monday, Tuesday and Wednesday?

MS. CLARK: I didn't bring down any of the rebuttal lists, your Honor, because I went flying down with the exhibit stuff.

THE COURT: All right. I think some of that belongs to the court.

MS. CLARK: Yes, I know.

THE COURT: All right.

MS. CLARK: I need to get a copy of mine, but I can tell--I can tell the court and counsel that we intend to begin with the glove photographs. So it will be all of those photographers in addition to a representative of NBC or stipulations to NBC video clips of the Defendant and gloves.

THE COURT: Are we going to see Mr. Rubin again--

MS. CLARK: Yes, we are.

THE COURT: --after this?

MS. CLARK: After this, yes, at the conclusion of it all. And all of the photographs that we intend to present have been examined by him and authenticated by him already.

THE COURT: Okay. Have the photographs all been given to the Defense?

MS. CLARK: Yes, your Honor.

MR. BLASIER: No. There are other photographs we've been told. I was just handed photographs that you ordered turned over a week ago that are the key ones that I've been told that they will probably use. We just got them and I've asked every single day for them, and now I get them this afternoon, Friday afternoon. I can't send them out across the country. This is completely impossible for us to try and prepare for Mr. Rubin on Monday when we get these pictures on Friday. And we have the whole scope argument as well.

MS. CLARK: Your Honor, we--I'm at a loss here. I'm not the one that did the discovery of the glove photos. So I can't respond to counsel. I don't know. As I understood it, everything went over to the Defense.

THE COURT: All right. Why don't we do this. Let's do this. As far as this issue is concerned, get your stuff, get Mr. Hodgman and Mr. Yochelson down here. Let's resolve the discovery issues for the rebuttal case this afternoon. I want to launch into--I want to give Mr. Regwan and Mr. Schwartz their hearing regarding the Fuhrman tapes. And I take it--I don't believe either of you have any further interest in that particular aspect, do you?

MS. CLARK: Other than indicate--can I indicate to the court our position now so I can get to work on the discovery?


MS. CLARK: Our position is that the tapes should be released and we urge there be a full public viewing and hearing of all the matters contained on them for further examination and review.

THE COURT: All right. Mr. Douglas.

MR. DOUGLAS: Your Honor, we would defer to the position taken by Messers. Regwan and Schwartz. We feel they are in the best position to assess and to comment on the admissibility or the release of those documents.

THE COURT: All right.

MR. DOUGLAS: But, your Honor, respectfully, I'd like to get back to work, particularly given some of the things that have been said just now, and if the court can indulge us, I would like to resolve these discovery matters before we launch into the other thing so we will not--

THE COURT: Well, counsel, here's the problem. I need to clear off all of the exhibits I got here. I need to give them back to Mrs. Robertson so she can sort through what's been admitted, what's been kicked out, and then she has to pull out those things I need to reconsider for once I get the transcript. So I need to take some time with my staff to accomplish this. In the meantime, I thought I would at least give--because we had scheduled this matter at 2:00 o'clock. We're already an hour behind schedule because I did not anticipate this hearing today. We have the city attorney, Mr. Hahn, here. So I would like to at least hear that argument. And I propose to limit it to half an hour. That will give Miss Clark enough time to track down Mr. Hodgman, Mr. Yochelson, get down here. Let's settle these discovery matters. I am concerned about the photographs of the gloves because I did order those turned over last week or earlier this week, whenever it was.

MR. DOUGLAS: And, your Honor, as part of that direction, can you ask that they be prepared to inform us of the next three days of witnesses and the order?

THE COURT: She's just given me--Miss Clark just gave me glove photo persons, NBC video persons and Mr. Rubin.

MR. DOUGLAS: I don't think that's three days though.

THE COURT: Probably not.

MS. CLARK: I wouldn't think, but who knows about cross.

THE COURT: All right. Why don't you get started on that. All right. We'll take five minutes. I don't want to clear the courtroom, Deputy Jex. I just want to take five minutes to clear the exhibits off the bench.


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

THE COURT: All right. Back on the record in the Simpson matter. The Defendant is again present before the court. The jury is not present. We have an extraordinary matter before the court, the record is already clear, this order issued at the request of the Defense, a subpoena duces tecum through the interstate compact among states to compel the production of certain audiotapes and transcriptions of those audiotapes that we have come to refer to as the, quote, unquote, Fuhrman tapes. Those tapes, the originals and the transcript and a transcript prepared by the District Attorney's office and a transcript, partial transcripts, that have been prepared by the Defense are in the possession of the court. The tapes in a redacted copy form were considered by this court with regard to the use and admissibility of those tapes as they pertain to the testimony of Miss McKinny. The unredacted tapes were listened to and the transcripts were read by another court as to another issue in Department 123, the honorable John Reid. So those matters have been completely and fully examined by the court for purposes of rulings in this case. The party which produced those documents, Laura McKinny, Laura hart McKinny, represented by counsel has--had at the time that these tapes and transcripts were produced in court asked for the protection of this court, asked for the assistance of this court in the form of a protective order so that these materials would not be disseminated beyond the confines of the real parties in interest, the Prosecution and the Defense and the court for the legitimate purposes that those items were originally sought. We have now, because of the overwhelming public interest in these matters, been requested by various parties, the Los Angeles city attorney's office representing I believe the Los Angeles Police Commission, and the American civil liberties union amongst other parties have requested that the court make these materials available to the public without any further restrictions. I'll hear first from counsel for Miss McKinny. And, counsel, I'll also allow you to conclude the argument.

MR. SCHWARTZ: Thank you, your Honor.

THE COURT: All right. Mr. Schwartz, good afternoon, sir. And I would like to conclude this part of the oral presentation by 3:30'ish.

MR. SCHWARTZ: Okay. Thank you, your Honor. Good afternoon. May it please the court, 10 years ago, Laura hart McKinny began a fact finding expedition for the purposes of gathering information to be used in a screenplay to be made into a motion picture and in a novel. She worked for 10 years on these projects, and she recently completed the screenplay and the novel is nearly complete. These end products represent the fruits of 10 year's worth of intense, physical and creative labor. And the reason why we're here today, your Honor, is to determine who should control the custody and the use of these materials. Is it going to be the exclusive and proper owner of these materials or is it going to be city entities or will it be a special interest group that has its own agenda? We're opposing all these motions, your Honor, for five reasons. The first ground for opposition is the fact that the moving parties don't have standing to seek the relief they have requested. The second basis for opposition is that the relief requested would violate my client's rights as protected under the copyright act of 1976.

The third basis for opposition is based on my client's privileges that are provided for in the California constitution article I, section 2; namely, the Shield Law. The fourth basis for opposition is that the relief requested would result in an unconstitutional taking in violation of my client's 5th Amendment rights, specifically with regard to the just compensation clause the United States Constitution made applicable to the States by the 14th Amendment. And, finally, the last basis for opposition is more of a factual argument than a legal argument, and that is to say that the interest to be served by the relief requested have already been served by the cooperation of my client as rendered previously. So that said, I'll now address our first ground for opposition, standing. According to Yancey versus American Savings and Loan Association, California law is in accordance with the federal law of standing and treating standing as a jurisdictional requirement. Valley Forge versus Americans United is a seminal case on standing, holds that:

"The document of standing requires a party seeking to invoke the court's authority to show that they have personally suffered an actual or threatened injury as the result of the conduct of the Defendant." Now, first of all, my client is not a Defendant in this action. She is a non-party witness who was brought here against her will by a subpoena, as the court noted previously. And she has not done--she has not engaged in any conduct that would ultimately threaten injury or actually cause injury to any of the moving parties, and, therefore, the moving parties are unable to show any basis for standing according to the valley forge authority. And with specific respect to the ACLU as a moving party, the Sierra Club case, another civil case, Sierra Club versus Morton, provides specific guidance. It says:

"Standing does not exist merely because a party claims to be acting as a representative of the public--of the public interest, nor will standing be established by way of an organizational interest in the problem." And yet that's exactly why the ACLU is here. They say that they're representing the public interest, but that's exactly the kind of abuse the Sierra Club has decided to protect against. And so they have two reasons why they shouldn't have standing. And I know the court has granted the ACLU the right to submit motions previously, but perhaps standing wasn't challenged in those cases, but we're challenging their standing to make this motion today. The second basis for opposition is copyright law. The moving parties have suggested that my client doesn't have a copyright interest in the audiotapes and the corresponding transcripts. And they proffer to this court the authority known as the State of Hemingway versus Random House, which is a New York state case, persuasive authority if it's even authority at all, which was decided in 1968.

THE COURT: Three days, the `76 copyright act.

MR. SCHWARTZ: Precisely. And so when they say there's no statutory basis for a copyright protection in an audiotape and there's only a common-law copyright interest, they're wrong. That authority is obsolete. Specifically, the copyright act of 1976 in section 102.A7 provides that sound recordings qualify for copyright protection, says:

"Works of authorship include ... Sound recordings." And in section 101 of the copyright act, it says that: "Sound recordings are defined as," quote, "Works that result from the fixation of a series of musical, spoken or other sounds regardless of the nature of the material objects such as discs, tapes or other phono records in which they are embodied." And so clearly, when my client affixed Mr. Fuhrman's vocal sounds into a tape recording, she acquired a copyright interest immediately in the recording. And they've also hinted that just because Mark Fuhrman has answered certain questions, his answers are not copyrightable because they came from him. That argument is misleading because although she may not have an interest in the words that were spoken, that means that anybody can go to Mark Fuhrman and say, "What did you say on the tapes," and then he could reiterate them. My client can't prevent them from doing that. But my client owns the recording, the sound that she recorded and the sound she affixed in that particular--I'm sorry. Am I going too fast for you--were affixed in that particular tangible medium of expression. Now, what does it mean to have a copyright? What kind of rights does a person have? There are three rights that are implicated by these motions, and they are provided for in section 106 of the copyright act of 1976. They are as follows:

"The owner of the copyright under this title has the exclusive rights to do and to authorize any of the following: "1, to reproduce the copyrighted work in copies or phono records; "2, to prepare derivative works based on the copyrighted work, and, "3, to distribute copies of or phono records of copyrighted work to the public by sale or other transfer of ownership or by rental, lease or lending." Now, the moving parties want this court to release copies of her work to the public. That would violate and usurp her ability to distribute these materials to the public, and if they make copies, the court would be assisting other people in committing copyright infringement, and if they were to make derivative works, that would be violating her exclusive right to make a derivative work. So that would ultimately result in three copyright infringements. Now, they've raised the issue that this would serve to be a fair use, and the adoption of fair use has been embodied in the copyright act of 1976, specifically in section 107. The reasoning behind it is that we allow certain infringements to occur if the public interest outweighs the interest in the monopolistical control that the owner has, but there's a specific test that we apply to determine whether or not a particular use is fair, and it was ably represented in the city's moving papers. There are four factors that the court considers to determine whether or not a use is fair. The first factor is the nature of the original work. The second factor is the nature of the contemplated use. The third factor is how much of the original work is being taken from the author. And the final factor is, what is the effect on the market for the original work.

All but one of these factors militate in favor of finding for my client's argument. The first factor, what is the nature of the work? This is a commercial enterprise. She made these tapes with hope--with the intent of exploiting them in the form of a motion picture and a novel. So clearly, we need to protect that interest. The second factor actually militates in favor of the moving--

THE COURT: Well, couldn't that also be--couldn't the tapes themselves though also be characterized as foundational research rather than the work itself?

MR. SCHWARTZ: I don't think so. I think what has happened is that there has been a sudden increase in value in that particular work. The way we represent the works to the court is that the original work is the tape recording and the screenplay and the novel are derivative works from the tape recordings. In fact, tape recordings have been registered with the United States copyright office. Those are works in and of themselves. The second factor of the fair use test, the nature of the contemplated use actually militates in favor of the moving parties and its notable purpose, and we concede that the notable purpose is to help the city conduct an investigation, and that's why we haven't helped the city to date by giving them access to the tapes as opposed to copying. But this one factor is outweighed by the other three. The third factor is the substantiality test. How much of this work do they seek to acquire? They want everything available. And when you take the entire work, it's prima facie unfair use. And when we look at the fourth factor, we know this is patently unfair because the fourth issue was the effect on the market for the original work. The effect on the market here, if it is disseminated to the public, is complete devaluation of the original work. Nobody is going to want to buy this stuff because it's already out there. Why buy the cow when you can get the milk for free? You're taking all the wallop away from this work. So when you consider all three factors--all four factors, everything must be found in favor of my client's argument. Now, counsel for the moving parties have proffered two authorities, case law saying this really is a fair use in light of Jartech versus Clancy, Grundberg versus Upjohn company, and those cases involve whether or not you can make a copy of a copyrighted work for use in a trial in a legal proceeding. And those authorities are sound because--and, in fact, that's what happened in this trial. The Defense has made several copies for their use and the Prosecution made several copies for their use so we can have administration of justice in this proceeding. But what the moving parties are trying to do is use my client's material for something unrelated to this trial. They want this disseminated to the public. They want this for use in an investigation of the police department. That's clearly outside the scope of these proceedings. In fact, this court has already ruled that 99.9 percent of my client's material are inadmissible for this trial. The involvement of my client's material for this trial is over. They're asking this court to do something extrajudicial that would be patently unfair. And Jartech and Grundberg can't be used to the extent--to the uses they contemplate. Therefore, what they're contemplating is unfair use. And that brings us to our third opposition. Their basis for the opposition is the Shield Law. And this court is well familiar with the law. It's been brought up several times in this case.

Article I, section 2 of the California constitution provides absolute immunity from contempt, which vests a right of nondisclosure of information acquired in the process of news gathering. And the Shield Law applies to unpublished information, even if that information was not obtained in confidence according to the New York Times versus Superior Court, 1990 case. Now, my client's materials were acquired by United States subpoena. And we raised the issue of the Shield Law in North Carolina unsuccessfully because Mr. Simpson enjoys a 6th Amendment right, which outweighs my client's right to protect the confidentiality for information, and that's because he's a criminal Defendant. And so we gave the court our materials. We conceded. And he used those materials to the best of his ability and the Prosecution used those materials, but we were also granted a protective order to make sure that the rest of these materials would not get out. And so to the extent that the protective order was obeyed, those materials are unpublished. These moving parties, if they went directly to my client and asked her to give them these materials, she could properly assert the Shield Law. But they're trying to circumvent that. They're trying to ride the coat tails of Mr. Simpson's 6th Amendment right, which they don't have because they're not criminal defendants. And so they're trying to escape the invocation of the Shield Law by my client by asking for these materials in this proceeding, and that would be improper. This is not the proper form for them to do that. They need to issue their own subpoenas, and we'll handle the matter then, we'll raise the Shield Law then. They cannot be permitted to inure the benefit of Mr. Simpson's 6th Amendment rights. That's the purpose that this court has control of my client's property, and it was already used. This is a different purpose now and they have to go to a different forum in order to get that material. The next basis for our opposition is eminent domain, your Honor. The 5th Amendment to the United States Constitution provides in pertinent part that:

"Private property shall not be taken for public use without just compensation. This protection known as the just compensation clause is made applicable to the States by the 14th Amendment to the United States Constitution according to Gideon versus Wainwright," another seminal case on the issue of unconstitutional takings. We contend that if this court is inclined to engage in this kind of copyright infringement, that it would be taking our client's property and it would be devaluating it and it would constitute an unconstitutional taking. "It is a well-established principle that an interest in copyright is a property right protected by the due process and just compensation clause of the United States Constitution,"

So it says Roth versus Pritikin, Loretto versus TelePrompTer and Pruneyard Shopping Center versus Robins. These are all 1980 federal cases. And additionally, California constitution article I, section 19 specifically provides how a court is supposed to conduct an eminent domain procedure. It says:

"Private property may be taken for a public use only when just compensation as ascertained by a jury has first been paid to or into the court for the owner." Now, this is not the proper form for an eminent domain. This is not the proper form to adjudicate a taking. We need a jury. We're not waiving a jury on that issue. We need a jury to determine whether or not there's a public use that's sound and we need a jury to help us determine what the value of my client's property is. And so to come in here and ask for a summary taking I think is outside the scope of this court's power and authority. And finally, the last ground for our opposition, your Honor, is that the interest to be served by the relief sought by the moving parties have already been served. For example, as far as the city is concerned, we immediately granted the city access, complete and continuous access to our client's materials. And, in fact, they took advantage of that offer. They came to our offices for six days and I think they spent approximately six hours for each of those six days listening to every word on the tapes, reading every word in the transcripts and taking copious notes therefrom. And, of course, these tapes, as the court well knows, do not contain scientific formulas or mathematical postulates. This is casual conversation. You can pretty much get the gist of everything from a first review. But if they need further review, they're more than welcome to come back and to engage in that investigation under our supervision. We just don't want to have to give out other copies. And so their purposes have already been served. And if they need to come back, they're more than welcome to come back. As far as the public is concerned, I think that the most startling portions of my client's work have already been published to the public. And if they need to second-guess your opinion, your Honor, as the ACLU suggests so that they can determine whether or not this court has rendered a good decision, then they can read your opinion. And you describe very ably in your opinion why you found these ways. They don't need the rest of my client's work to determine that. The rest of my client's work, which has not been published--and we're talking about 95 percent of it. Five percent of it was published because of the Defendant's proffer. But 95 percent, which contains story development, plot development, character development and actual dialogue which was lifted from the tapes and put into the screenplay and the novel is unpublished and it has nothing to do with the interest that they want to serve. And I think it's rather remarkable that an organization like the ACLU seeks to derogate an individual's property rights in favor of a city to get access to it. I think that's kind of hypocritical. The ACLU usually comes in quick assistance to somebody who's invoking the Shield Law or for somebody who's trying to protect their private rights against a governmental entity, but they're not doing it this time and I'm actually surprised as to why.

THE COURT: Strange bedfellows.

MR. SCHWARTZ: Okay. So at this point, I would conclude by asking this court to deny the motions, and I'll address other issues that may be raised by counsel when they're finished.

THE COURT: All right.

MR. SCHWARTZ: Thank you, your Honor.

THE COURT: Thank you, Mr. Schwartz. I'll hear from the city attorney. Good afternoon, sir.

MR. HAHN: Good afternoon. Thank you, your Honor. The Police Commission of the city of Los Angeles obviously has standing as the entity that is required by law to investigate complaints of police misconduct under 832.5 of the penal code. That is, a mandate placed on Police Commission to develop procedures to investigate allegations of police misconduct. The Christopher Commission that investigated the police department after the Rodney King incident recommended that this be the first priority of the police department to make sure that police misconduct was quickly rooted out, that any possible racism or prejudice or other police misconduct be investigated thoroughly. In addition, under counsel's argument as to whether or not we can show injury to show standing, obviously the reputation of the police department is critical here. It's at issue. The whole integrity of the police department depends on the public's understanding that we are going to do complete, thorough investigation of these charges. Not that we're going to do an 80 percent investigation or 90 percent investigation, but that a complete investigation is mandated and really required by the public to feel that they are really confident that the Police Commission is doing its job. Since obviously these tapes, portions of these tapes have been disseminated to the public, the public's outcry has increased. The pressure has increased upon the police department to demonstrate to the public that they're doing something about this. While it was very generous of counsel for Miss McKinny to allow us access to these materials, that process took some 18 hours, but we were not allowed to record the tapes, we were not allowed to bring a stenographer to record the tapes on transcript form. We were allowed to take notes, but obviously that is not the way the Police Commission or the police department would wish to do an investigation. After reviewing those tapes, we believe the situation has changed dramatically. We believe that allegations by Mr. Fuhrman on those tapes that have been heard by representatives of the Police Commission and the police department indicate there are instances at least that he brags about--we don't know if they're true yet or not--that would involve police misconduct and possible criminal acts. These need to be thoroughly investigated. We filed with the court the declaration of Commander J.I. Davis who indicated that he was the one who listened to all these tapes. But in order to complete his investigation, to do the kind of investigation he's going to need to do, he's going to need to go back to the tapes. As we go through that investigation and the investigators compare their notes, are they supposed to say, "Well, I'm not sure what we exactly heard here. It was a little inaudible. Let's all get in the car and drive over to Mr. Regwan's and Mr. Schwartz's office so we can hear those tapes again"? In addition, that offer by counsel, although generous, is revocable at any time by them. We believe that the court has the inherent power to modify the existing protective order because the court has issued that protective order. The court can decide the proper authorities, as the court has indicated before, that should be investigating these allegations should be given access to the materials. As to the copyright issues, I think the critical thing for the court and the court's interest in this is whether or not giving copies of the tapes and transcripts to the Police Commission would infringe on copyright interests of Miss McKinny. I do not concede that what these tapes and transcripts are copyrightable materials. I'm not sure that ordinary conversational speech is the kind of material that was envisioned to be protected by copyright. But even if the court would find that somehow this meets some definition of intellectual property, use by the Police Commission would not infringe on any of those property interests. We do not intend--what are the copyright interests? That they can reproduce, that they can distribute or that they can prepare something that would be derivative of the copyrighted material? The Police Commission, the police department have no intention of doing any of those, your Honor. We intend to investigate these allegations. We intend to try to do as Chief Williams pointed out, a biopsy of Detective Fuhrman's career in the police department to see whether or not incidents that he talks about may bear some relation to actual incidents that we are aware of, to go through his career and see who the parties were, see what incidents he was involved in. That's what we are going to be using the materials for. We're not intending to reproduce these materials, not intending to distribute these materials, not intending to prepare any derivative property that would be based on these materials. What we're trying to do is an investigation. And I think that the fair use doctrine comes into play here. Fair use is what this is about. As far as the Police Commission is concerned--and almost every one of the fair use cases, what you are talking about is a judicial--quasi judicial proceeding, and every one of those cases, your Honor, the courts have found it's fair use because we're not trying to interfere with the copyright protection, we're not trying to interfere with the author's right here, we're not trying to diminish the value of the property that she has. In fact, we have no intention of doing any of those things. The offer again from counsel that we could have a right to go over any time we want is not the way to do a police investigation. The other interesting thing that they brought out, it seems to me that the Shield Law has no application here, your Honor, because they've already given us access to the materials. There is no confidentiality anymore remaining in these materials. They have allowed the police department and the city access to listen to all the materials and to review the transcripts, although we have not obtained copies. It's a little late for them to raise the Shield Law since they've already let the shield down. Eminent domain, I don't understand quite what the eminent domain aspect of this is because we do not intend to take this property away from Miss McKinny in the sense we are not trying to deprive her of her commercial rights. We do not want to do anything that would interfere with her commercial rights here, and that is really what you are talking about with eminent domain; is the public trying to take something away from someone and never give it back, to take it away and use it for the public's own use in a way that would deprive the original owner of their use. That's not what we're intending to do at all in order to use these materials in a criminal investigation. Finally, your Honor, if we did not do a thorough investigation of these outrageous boasts, these outrageous claims, these outrageous statements by Detective Fuhrman that are on these tapes, the public would really question its confidence in the police department. It would fly in the face of really what the Police Commission is all about, why we have a Police Commission in the city of Los Angeles. The freeholders of Los Angeles in establishing this charter decided they wanted civilian oversight of the police department. The Police Commission, in order to do its job, needs to have unfettered access to these materials. Otherwise, the public's always going to say, did you get everything that was on these tapes? Did you investigate everything that was on these tapes? Is there a possibility that you may have missed some information that could have led to a criminal investigation or led to investigations that would have implicated other police officers? What are you trying to cover up? What have you missed? We need to reassure the public that we've done everything possible to get to the bottom of these outrageous statements. The public needs to be convinced that the police department is serious, that we want to eliminate racism in the department, we want to eliminate misconduct in the police department, we will not tolerate it. In order to do that, we need to do a thorough investigation. Obviously, the court is concerned about these property interests. But think of it as in any other situation. If the court came into possession of evidence of a crime or criminal misconduct, obviously the police department would have the right to come to the court and say, "We need that material, your Honor. We need the court to turn that material over to us so that we can do a proper investigation." The fact that this is intellectual property doesn't change what it is when you come right down to it. It is evidence of possible police misconduct and possible criminal activity. Under those circumstances, the Police Commission has not only the right, but the duty to get those materials and investigate these charges fully.

THE COURT: All right. Mr. Hahn, does the Police Commission have independent subpoena power?

MR. HAHN: Yes.

THE COURT: Have you attempted to subpoena these matters?

MR. HAHN: Yes.

THE COURT: All right.

MR. HAHN: We have served Miss McKinny with a subpoena from the Police Commission for these materials.

THE COURT: All right. When is that set for adjudication?

MR. HAHN: It's set for adjudication September 12th. That's--she's been ordered to appear before the Police Commission on September 12th. We've been informed by Miss McKinny's lawyers they intend to file a motion to squash.

THE COURT: All right. Thank you, counsel. Mr. Mirell.

MR. MIRELL: Good afternoon, your Honor. Douglas Mirell, M-I-R-E-L-L, representing the ACLU foundation of southern California. With me in court today is, among others, the legal director of the ACLU foundation, Mark Rosenbaum. Your Honor, I'm mindful of the court's timing and I realize that this is a collateral matter and--

THE COURT: And it's been a long week.

MR. MIRELL: I know it has. I appreciate that, your Honor, and I don't really intend at all to make it any longer than it absolutely has to be. But there are obviously several issues that I want to be sure that the court understands and that I have an opportunity to address. First, let me just say, what are the perimeters of what it is that we're seeking.

We're seeking access on behalf of the general public and the press--and by the way, I should note that Miss Sager is here as well and she may wish to address these issues briefly with the court. We are seeking access to the transcripts and tapes that were presented to the court and were considered by the court and which are the subject of the court's order of August 31st. We are also seeking access to all submissions that were related to the Defense's proffer as what--including the submissions by Miss McKinny's attorneys, if any, by the city attorney, by Mr. Mounger. All of that is by way of fulfilling what we think is a fundamental right, which is the right to ensure that the public has access to all aspects of what is a public trial. And these documents, like many of the documents we've talked to the court about before, including the transcripts of the jury dismissal hearings, these transcripts are every bit as much public records of a public trial and are public property in every bit as much a way as anything else that we've ever addressed with the court. I want to apologize first, your Honor, for not having any written response to the papers that were submitted at the very end of the day yesterday and that we did not see until after the close of business yesterday. To the extent that the court has any lingering concerns that we can address in writing, I'd be happy to do so, work on it over the weekend, get you something on Monday. But let me address first some of the very crucial important issues that are totally ignored in the opposition papers that arrived yesterday. First and foremost, the public record character of these transcripts and tapes. Miss McKinny's opposition I think is notable for its failure to address, much less contest the clear and unrefuted line of U.S. Supreme Court authorities that we have provided to this court that indisputably provide that public records are--that records of a trial are public records, that their sealing is presumptively unconstitutional and that their nondisclosure can only be justified where it is essential--and those words are within the court's opinion--essential to preserve higher values and is narrowly tailored to serve that interest. Nowhere in their briefing are those cases addressed. Nowhere is this issue directly confronted, and I think I know why. The answer is that they have no argument in refutation to the concept that evidence that is presented to the court, that is considered by the court in reaching adjudications that have already been made is evidence that is public information, and the public has a right to it just as they have a right to attend this trial, just as they have a right to participate in the process of determining whether or not what is going on here is an appropriate exercise of the court's power, is an appropriate fulfillment of the rights, duties, obligations of all parties. Next, second issue that's unaddressed, the transcripts and the tapes in this case provide vital context to the Defense's proffered excerpts and to the court's ultimate ruling on that proffer. And the reason why this central issue is unaddressed is also easy to understand. It's fatal to Miss McKinny's arguments. As the court will recall, we initially made our request for access to these transcripts and tapes by means of an Amicus brief filed before the August 31st ruling. But in that August 31st ruling, which followed many hours of argument and a two-day hiatus in trial testimony, this court made clear that its decision was tied inextricably to not only the submissions of counsel, but also to the overall text and context of the Fuhrman transcripts and in addition to the tenor and tone of the Fuhrman tapes. How do I know that? I know that from the opening paragraph of this court's order where the court said that it had, quote, listened to the redacted audiotapes, read and considered the multiple transcripts of the redacted audiotapes. Indeed, your Honor, in making the court's ruling, the order that was issued was so--made clear that the court had been so careful in scrutinizing and comparing the transcripts and tapes that it made the observation in line with the substantial inaccuracies comment that was made here in open court on the 29th. In footnote 4 of the court order, the court said, quote:

"The court's comparison of the tape recordings with the transcripts prepared by McKinny revealed significant errors and omissions despite Miss McKinny's testimony that her transcripts were verbatim in nature." So we know from that that the court did in fact not only read the transcripts, but actually listened and compared.

THE COURT: That's what I get paid to do.

MR. MIRELL: I understand, your Honor. And that's exactly why the public ought to be let in on what is going on and what it is that you had available to you when you issued your ruling. The reason why that's important is that any fair reading of the totality of this court's August 31st order, which was in fact very detailed, reflect a significant underlying focus upon the question of whether Mr. Fuhrman was speaking as himself or assuming the role of a character in a fictional work. In particular, one of the specifically articulated reasons for denying the Defense motion with respect to at least two of the incidents of alleged misconduct, which were ruled inadmissible, was--and this is a quote from at least one of them.

"This is clearly an instance of suggesting a scenario for the screenplay." That's found in incident no. 1. Similar language is found in the court's description of incident no. 2. Similar fictional concerns obviously arose from the court's comprehensive and textual scrutiny that were identified with respect to at least five other incidents, incident 1, 9, 14, 15 and 16. The fact, your Honor, of the preexisting disclosures and exposure of these tapes I think highlights what Miss McKinny's true goal is; and that is to make her attorneys into the gatekeepers of the public interest whose exercise of discretion will be unrevealable. We join with the comments made by the city attorney, Mr. Hahn. We believe that there is no reason why the kindness of strangers ought to be the test that determines whether or not the public or the Police Commission or anyone else has access to evidence which is actually before the court. Neither kindness nor sufferance are the test. The test is whether or not these are in fact public records that were considered by the court in the context of a public proceeding. Your Honor, let me address a couple of other issues briefly. And that is the following: I believe, your Honor, that it's the height of naiveté to believe that leakage, whether from Miss McKinny or anyone else or--that leakage will not continue unabated. And I think that what we can be assured of if this material is not publicly released is that all of this information will come out, but it will come out in selective leaks. It will come out in dribs and drabs and it will be pouring oil on the fires of this public controversy. And there's no reason for it, your Honor. There's no reason for it because we can put an end to this controversy now. By releasing this material publicly, what we will do is, we will accomplish two things. First, we will ensure that the public does understand what the basis of the court's ruling was.

Second, what we will do is, we will make sure that the public has access to this very important information. And why is that significant? It is significant, of course, in and of itself because these tapes, as the court knows, have become somewhat of a cause celebre in this city, and the impact of releasing this material and the impact on the public and the press is going to be magnified in our view if these tapes are not released at once and if these tapes instead are released selectively leap by leap. And we know what will happen because the court doesn't have access to the McKinny manuscript, the men against women manuscript. Yet, I read in this week's issue of Newsweek that Newsweek has it, and they discussed it. That was the supposed intellectual property that was truly the subject of protection. But in any event, your Honor, we know that to a moral certainty, that this information will come out sooner or later. And there's no reason why it shouldn't happen sooner because a third purpose that will be served is to ensure that the public has confidence in the very investigation that Mr. Hahn's office will be conducting and that we have every confidence they will conduct in a fair, full, complete and forthright manner.

But unless the public has access to the information that the Police Commission has access to with respect to these tapes, there will be lingering questions about the fairness, the fullness, the accuracy, the completeness of that investigation, and that shouldn't happen. There's no reason why that needs to occur. Your Honor, I don't know what the court's concerns are with respect to standing, but let me just say one thing. Standing has been an issue that we addressed at the very outset. I stood here on August 31st, 1994 to address then the issue before the court, which at that time was considering imposing a gag order upon the attorneys and imposing a sealing order upon the documents in this case. At that point, we brought to the court's attention the code of civil procedure 6426(A), which provides for taxpayer standing. And if this court has any concerns about a corporation having a taxpayer standing, although we clearly pay taxes within this county, I have a letter from representative Maxine Waters who sent a letter to the court on September 1st, a letter from her dated today, indicating that she has authorized the ACLU foundation to represent her interests as a taxpaying citizen of Los Angeles County in seeking access to these materials from the general public, and I can provide a copy of Miss Waters' authorization letter to the court and counsel. But beyond that, your Honor, 526(A), taxpayer standing is clear. We know what that's about. White versus Davis, a 1975 California Supreme Court case, says, quote: "No special showing of injury to the particular taxpayer,"

Closed quotes, need be made and that the primary purpose of the section is to, quote, "Enable a large body of the citizenry to challenge government action which would otherwise go unchallenged in the court because of the standing requirement," closed quotes. For that reason as well as for the fact that article I, section 29 of our California constitution provides that the People of this state have a right to a public trial in addition to the right that's possessed by the Defendant under section 15. That is a second reason, a second basis for bringing this action. We are enforcing a public right. And, your Honor, even the case that was cited by Miss McKinny's and--Miss McKinny's papers, the Dix versus Superior Court case, even though that case was in fact vacated by the California Supreme Court on May 31, 1990 and rendered unciteable, a violation of the rules of court and the business and professions code, even that case said that--well, I'm not going to talk about what that case said, your Honor, because that case is not authority. But when the Supreme Court addressed this issue, all that it said is, look, when it was confronted with a victim of an aggravated assault wanting to--seeking standing to challenge the trial court's decision to recall the Defendant's sentence under penal code 1170(D), the court said, look, private people have no right to step into the shoes of public Prosecutors. And that's Horn book law. Nobody's seeking to do that here. The sole responsibility of the public Prosecution is the sole responsibility of the public Prosecutor. The court's issuance though of the protective order that was proposed by Mr. Schwartz and Mr. Regwan is entirely collateral proceeding. And if there were a violation of it, we all know it would be a violation that would be punishable through civil contempt, not criminal contempt. Your Honor, with respect to the other issues that have been raised, let me say this. Let me just say this and then I will close.

With respect to copyright, there are two points I want to make, but two very important ones. Miss McKinny never asserts nor could she that an order rescinding the protective order that was entered or otherwise permitting the public and the press access to the Fuhrman tapes and transcripts could conceivably constitute any act of copyright infringement. If the court simply today lifted that protective order, it would have no--it would have done nothing under anyone's definition in terms of having committed any infringement of any copyright. But, your Honor, in addition to that overriding issue, which should be dispositive of any copyright concerns that this court has, in addition to that, the issue of whether or not these are appropriately works as to which Miss McKinny can claim a copyright is solved by reference to the copyright act itself. And indeed, the relevant section is cited in the McKinny opposition papers. They say that:

"Copyright subsists--" and this is the law--"In original works of authorship fixed in a tangible medium." That's 17 USC 101. But the key word, your Honor, is "Authorship." In this case, Miss McKinny is in no way the author for any copyright purposes of Mr. Fuhrman's answers to her questions. Now, Mr. Schwartz obviously recognizes this because in his papers, he says, quote: "Fuhrman's notorious comments were intentionally elicited by the skillful and creative questioning of McKinny," closed quote. Now, what that is an attempt to do is to argue that somehow, these answers are the creation of Miss McKinny. But that's wrong, your Honor. And it's wrong because in 1884, the United States Supreme Court defined authorship for copyright purposes. This is a definition which continues to subsists. The authorship provisions have never changed and authorship is a requirement of the constitution in order to obtain copyright protection. "Authorship" means in the words of Burrough Giles' lithographic, quote: "He to whom anything owes its origin, the originator, the maker." And here, the fact that Miss McKinny may have fixed--for copyright purposes, may have fixed Mr. Fuhrman's words in a tangible medium of expression does nothing to transmute her into an author of those statements. Indeed, the nimiety--is the leading treatise on copyright law--says:

"Important as fixation is, we have just seen that originality is the essence of authorship. Accordingly, the originator rather than the fixer should be deemed the author for the distinction between one poet who brandishes a quill or word processor and another who dictates to a stenographer cannot call for a different legal conclusion as to authorship." And that's what happened here. Miss McKinny may have an interest, a copyright interest. Ignoring the Hemingway issue for a moment, Miss McKinny may have an interest in her words and her questions. She doesn't have an interest in Mr. Fuhrman's answers and it's obviously the answers of Detective Fuhrman which are the most critical key component of this issue. Your Honor, I'm not going to address the Shield Law issue. The Shield Law was ably addressed by Mr. Hahn. I associate myself with his remarks. The Shield Law goes to disclosure. It doesn't go to use. The Shield Law issue was waived. The Shield Law issue was dealt with in North Carolina, disposed of. I'm not going to deal with it here. Local rule 719 compels this court to view protective orders like the one that was sought by Miss McKinny with intense scrutiny. They are disfavored by this court. They are rightly disfavored by this court. The court must have found or must find in order to preserve this that secrecy is in the public interest, that Miss McKinny has cognizable interests and that serious harm will result from public disclosure. Your Honor, we believe that on all three of those points, the answer is the converse. The eminent domain argument, your Honor, is a ludicrous argument I must confess. I honestly cannot believe that it was made with a straight face, but mischaracterizes disclosure as eminent domain. It is not. The government's exercise of power to transfer property from an owner to itself is what's involved in eminent domain. This isn't McKinny's intellectual property, and even if it were, the formal appropriation of property by transfer of a title to the government has never happened and I'm sure never will. This isn't even a regulatory taking, your Honor. This is--and the case that's cited, I'm amazed, the Prunard case is a case which, as the court may know, is a case in which the United States Supreme Court said that there was no taking when owners of private shopping centers are made to permit leafletters, picketers, pamphleters, petitioners to use their facilities in order to get their expressive message out. So, your Honor, on none of the points that have been made is there a viable argument here for keeping these materials secret, for keeping--for--and, in point of fact, for permitting counsel for Miss McKinny to decide selectively when the evidence that is rightly before this court will be disseminated to the public, and we would respectfully request the court for an order that does release these materials to the public and the press. And once again, your Honor, as always, I appreciate the court's indulgence.

THE COURT: All right. Thank you. Mr. Douglas, you had a brief comment you wanted to make.

MR. DOUGLAS: If I may briefly, your Honor. Your Honor, with all due respect, I've been very heartened and appreciative of the comments of all counsel, of Mr. Schwartz on behalf of his client. Respectfully, however, we now take the position after hearing all the arguments that given the unprecedented public interest in these tapes as well as the importance in a full hearing of the larger community and to decide all issues which the tapes have raised, we believe, your Honor, that justice is best served through the release of these tapes. We've very mindful, of course, of the interests that Mr. Schwartz has suggested. We're also very mindful, however, of what we feel on balance is the overriding public interest, particularly in some of the issues that were raised by Mr. Hahn. I think that it is very important that there be the ability to fully analyze and consider some of the very disturbing comments and implications that were raised. I've had occasion to listen to all 14 hours of the tapes and transcripts. So I have some firsthand knowledge of that which was not included in the excerpts. It is in fact very disturbing. There are in fact implications that go beyond the four corners of this particular case and on balance, respectfully, we think that the interests are better served by the release of the tapes.

THE COURT: All right. Thank you, counsel. All right. I need to take a recess at this point for the court reporter. We'll stand in recess for 15.

MS. SAGER: Your Honor, if I may, after the court takes a recess, I would like to have an opportunity to address the court.

THE COURT: I think we've heard enough, counsel. Thank you.

MS. SAGER: Okay.


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

THE COURT: All right. Back on the record. All parties are again present. Mr. Regwan, Mr. Schwartz, you have 10 minutes to respond. Also, if you would, slow down a little, please.

MR. SCHWARTZ: Thank you, your Honor. First, I'd like to address what I consider to be an unprofessional swipe at me. Mr. Mirell said that I cited the Dix case against the business and professions code. The Dix case was vacated on other grounds, and I cited dicta which represents the law as it is today. And I'd like to read that portion that I cited in my brief. "A person who is not a party to a criminal action has no standing to appear in the action unless a right in such party has been constitutionally or statutorily created." That's the law as it is today and I just cited from dicta from that case. Now, Mr. Mirell also said that I didn't address the issue of what happens when something becomes a part of the public record. But I did in my moving papers. He apparently missed it. It's on page 20. I cited the case called in re Alexander case:

"Persuasive authority that reasoned that while the public has a right of access to pleadings, docket entries, orders, et cetera, this right does not extend to information gathered in the discovery process not made a part of the public record." So the issue is, what portions of my client's materials have been made a part of the public record. Arguably, only the Defendant's proffer that has been read into the record. That's only five percent of my client's material. There's other material that has been acquired in the discovery process, but has not been read into the record, has not been made a part of the public record. In fact, it was protected by a protective order and properly so. And so the public doesn't have a right to this. And we heard a lot of passionate arguments about what the public has a right. They have to know. They have to know. But what authority has anybody cited saying they have the right to know what's in my client's proprietary materials. I haven't heard that. The public wants to know a lot of things. The public wants to know who shot J.F. Kennedy, but they're not entitled to know that yet. The public wants to know the name of rape victims in several cases, but they don't know that. The public probably wants to know what transpired in private conversations on the Defense's side of the table and they probably want to know what transpired in private conversations on the Prosecution's side of the table, and even though the Prosecution represents the People, the People will never find out what transpired in those conversations. They can't know. There are sealed proceedings that--in this case that the People will never find out about because they're sealed. And this is just another example of another thing that the public does not have a right to know, my client's proprietary property. And if you take the ACLU's argument to its logical extreme, they can come in here with their taxpayer status for standing and argue that the public has a right to know how Mrs. McKinny decorates her home and so that they can march into her house and start taking pictures off the wall because the public has a right to know. That's absurd. Yet that's what they're trying to do with my client's proprietary information in which she does enjoy copyright protection. And this seems to me to be the tyranny of majority. Everybody is coming in here claiming that they have a right to know and based on that because everybody is in agreement, my client has to forfeit 10 years of intense creative labor. And the other argument that the ACLU put forth, which is kind of ridiculous, is this idea that it's going to leak anyway. This leakage is going to happen. We all know it, so why don't we just get it over with and turn over the whole thing. Well, I guess if somebody is dying of cancer, we should shoot them in the head since they're going to die anyway. I mean, forget about trying to cure cancer. And, of course, they're saying that by lifting the copyright--by lifting the protective order, the court would not be engendering a copyright infringement. But really, what the court would be doing is putting my client's information on a silver platter and ring the dinner bell for everybody else in the world to attack it and distribute it and reproduce it in whatever form they so desire. And if I may just come up with a creative metaphor to illustrate the point. If I were to take a rabbit by the ears and drop it in a rattlesnake tank and turn around and say, well, I didn't kill the rabbit, the snakes killed the rabbit, we all know that would be wrong because I killed the rabbit by dropping it into the tank. And by lifting the protective order, the court would effectively be killing the rabbit because they're putting it out there for everybody to attack and to use without my client's permission. And let's talk about Mr. Fuhrman's words for a second. They are still claiming that my client doesn't have a right to those words. Well, she doesn't have a right to his words, but she has a right to the sounds that she transfixed into this medium of expression called an audiotape. She does have a right to that. And we--although we fervently contend that Mr. Fuhrman does not have a right in his answers that were recorded on tape, I'd like to point out that Mr. Fuhrman entered into a contract with my client where he would get $10,000 in exchange for doing all this. And so he forfeited whatever rights he had in favor of my client. And they said that my eminent domain argument was ridiculous. But if this court sees fit to completely devalue my client's property by setting it up on this silver platter, of course, that's a taking. And to the extent that the ACLU says that's not a taking, we know now what ACLU really stands for. Another constitutional law undermined. And let's talk about authorship for a second. Let's take two famous cases of authorship. Abraham Zepruder caught the Kennedy assassination on film. Fortuitously, he was standing on a hill and he filmed the assassination. He caught that on film. Now, he doesn't have a right to stop people from reenacting the assassination, but he certainly has a right to that film, and he sold it to time magazine.

And George Holiday, when he videotaped the Rodney King beating, he didn't participate in the beatings himself. He didn't tell the police what to do. He just ran outside and taped it. And he has a copyright in his videotape. And now with the Fuhrman tapes, my client, unlike the holiday case and unlike Abraham Zepruder, my client overtly participated in that conversation. Mr. Fuhrman would not have uttered those words if it wasn't for my client's questions. She actively participated in that and skillfully elicited that information and recorded it. And the recording is where you have authorship. It's not the fact that he said it. It's that she caught it on tape. And she is an author simply by virtue of the fact that she flipped on her tape recorder. If I took a picture of this courtroom, I would have a copyright in that picture.

THE COURT: Slow down.

MR. SCHWARTZ: And likewise, when she started her tape recorder, a copyright interest was created immediately therein. I'll address the city's argument for standing. They may have a standing because they need to conduct this investigation. But the question is, do they have standing in this proceeding. And they don't. And, in fact, no charges have been filed against anybody. And if they need information for an investigation for charges, then I understand that. But still, they need to go to a grand jury and get an indictment or something. No charges were filed based on the Fuhrman's tapes. And they need to initiate their own proceeding, and they do have subpoena power in another action, and we'll handle it and we'll take it up at that proceeding, and they've actually served that subpoena. And so they don't need this court to do that in. I think that they're trying to use this court because we otherwise might be able to avert--raise the Shield Law which Mr. Simpson could overcome, but they can't overcome that. And we contend that we haven't waived any protections afforded by the Shield Law because of the protective order. We--the information was used as far as it was needed for the Simpson case, but to the extent it could be used for something outside this case and unrelated to this case, for example, an investigation, she is still entitled to invoke that Shield Law. We--the city says that it would pose an administrative burden on them if they were to have to continually come back to our office to conduct their meaningful investigation. But I'm aware of no authority which purports to be a law of convenience allowing a governmental entity to subrogate the property rights of my client just so they can make life easier on their employees. My client has property rights that have to be respected, and we're sorry that it may cause an inconvenience to anybody, but that inconvenience doesn't give them the right to come in and demand wholesale copies of my client's materials. And they argue that it wouldn't be a copyright infringement for the city to have these materials because they're not going to be distributing them and they're not going to be reproducing them. But it would be a copyright infringement for the court to give a copy to them because that infringes on my client's right to distribution. Even if it's just one copy to one person, my client has a right to do that. The court doesn't have the right to do that. The court has the absolute right to use my client's copies of her work for these proceedings, as it has ably done. But for matters that are outside the scope of this proceeding, the court has no authority to start giving copies of my client's work to anybody who comes in here and demands that. Also, I don't know how much more of an investigation with regard to my client's tapes is necessary for the city. I mean, they've already heard everything that's on there. They pretty much got the gist of it. As I said before, they're welcome to come back. But a meaningful investigation can be accomplished at this point by using that information now. Go ask Mr. Fuhrman some questions. Go ask the victims of these alleged incidents of police misconduct. Open Mr. Fuhrman's files, which I understand are sealed and sent off to Sacramento. I mean, there's a lot of things they can do now for that investigation. They don't need my client's tapes anymore. They can use that information that they've already garnered. If they need to come back, they continue to look at it, that's fine. But they can show the public that they've already started their investigation. We will continue to help because we realize this is an important thing, and then they can start with the rest of their investigation. They don't need to have a copy of my client's materials. And unless the court wants me to address any other issue, then I would again just pray that the court respect the protective order which was properly enacted. I guess if I may, I'll just address why the court's protective order was proper.

THE COURT: Well, I think you can assume that would be a persuasive argument since I issued the order.


THE COURT: All right.

MR. SCHWARTZ: The local rule was brought up by the ACLU, 7.19, saying that we have to satisfy three requirements for the protective order. The first requirement is that secrecy is in the public interest. The second requirement is that my client would have to have a cognizable interest in the materials, and, third, that serious harm with result from a public disclosure. Secrecy is in the public interest, your Honor, because to protect these materials would protect the reasoning behind the copyright law in total and the Shield Law, because for the copyright--the copyright law was enacted to give authors a monopoly on their work, to give them an incentive to keep creating. That's why we granted it. And if we don't respect that monopoly, if we don't respect that protection, then the public's interest in promoting the arts and sciences will be derogated. We want to protect this copyright so that we can send a message to all other authors that, "Hey, you will be protected if you create your works." The second factor, that my client has a cognizable interest in the materials, I mean, even the ACLU have all but conceded that at least my client has a right to her spoken words, and that's about half of what's on the tapes. And this tape recording or these tape recordings are not indivisible works. Excuse me. They aren't divisible works. It is an indivisible work. You cannot just go through there and redact one person's words. This is one unit, and my client owns it. And the third factor is that serious harm will result from a public disclosure and serious harm would result from a public disclosure at this time without my client's permission, and that would be, of course, the complete devaluation of 10 years' worth of creative intent and physical labor. And for that reason, your Honor, the court's issuance of the protective order was completely proper and it should not be undermined at this point. And so again, unless the court wants me to address another issue that it is still considering, I would ask the court to uphold the protective order and to deny the motions of these nonparties.

THE COURT: All right. Thank you very much, counsel.

MR. SCHWARTZ: Thank you.

THE COURT: All right. Let's shift gears. Counsel, I'm going to take the matter under submission. It's not a matter that I need to address immediately. I do need to get my rebuttal case underway. So you can anticipate a ruling sometime next week. All right. Thank you, counsel.

MR. SCHWARTZ: Thank you, your Honor.

THE COURT: All right. We have three issues before us with the counsel for the real parties in interest. The list of rebuttal witnesses. I do have before me a letter, two letters from the District Attorney's office, both dated September the 8th, and the first letter, there is a list of 59 rebuttal witnesses, potential rebuttal witnesses, and on the second letter, which is one page, there is the additional of--addition of one additional name to the list of rebuttal witnesses. And, Mr. Darden, this is--on behalf of the People, this is your current list of potential rebuttal witnesses, correct?

MR. DARDEN: That's correct, your Honor. I should indicate that Mr. Hodgman and Miss Clark are supposed to be here to argue these issues. Would the court--I just returned to the courthouse. I've been gone all afternoon. But the letters the court just indicated are the most recent additions. I'll attempt to assist the court to the best I can.

THE COURT: All right. Are Miss Clark and Mr. Hodgman en route?

MS. LEWIS: I'm trying to reach them, your Honor.

THE COURT: All right.

MR. DARDEN: We should find them.

THE COURT: All right. Well, we've got--okay. Well, you've got the list of potential witnesses. Mr. Darden, do you have any information as to--my understanding is, you're going to start with certain photographers who allegedly taken photographs of Mr. Simpson in the wintertime wearing gloves.

MR. DARDEN: That is a probability.

MS. LEWIS: Your Honor, I didn't quite hear what the court said. I know that Miss Clark anticipates arguing rebuttal on the glove evidence. Is that what you just said?

THE COURT: No. I'm just trying to figure out who the next several witnesses are going to be. But how about if you get them down here?

MS. LEWIS: I'm trying, your Honor.

THE COURT: All right.

MR. DOUGLAS: Perhaps Mr. Darden can talk about the 59 names since he signed that letter.

THE COURT: Well, I assume that since they've told both myself and the jury that they have approximately five days' worth of presentation, that this is a list of potential witnesses given how things go. For example, Bruce Weir--

MR. DARDEN: Of course, we may need him for additional numbers.

MR. SCHECK: Your Honor, as you know, there's a serious issue with respect to the--

THE COURT: Scientific--

MR. SCHECK: --RFLP results from the Bronco, whether that comes under the rebuttal case that we have to address today. And I submit to you that Dr. Weir absolutely will be necessary if they're going to be allowed to put that in, and Dr. Shields is going to be a witness in rebuttal and Mr. Sims is necessary for it and I think that there's a serious issue there as to whether or not they can present that at all that we have to address.

THE COURT: All right. The record should reflect we have now been rejoined by Miss Clark and Mr. Hodgman and Mr. Yochelson.

MR. DOUGLAS: If the court please, may I deal with the lay witnesses and leave to Mr. Scheck the scientific issue or Mr. Neufeld?


MR. DARDEN: May I have one moment, your Honor?

THE COURT: Certainly.

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

MR. DARDEN: My colleagues are prepared to answer the court's questions, your Honor.

THE COURT: All right. Counsel, what we anticipate is beginning the Prosecution rebuttal case Monday morning promptly I hope. Who do you anticipate now that you've had some time to contemplate these matters and the other issues have been resolved by the court of appeal?

MS. CLARK: We need to--I believe that the court wanted to take a waiver from the Defendant.

THE COURT: That will take all of 30 seconds.

MS. CLARK: Okay. Are we going to do that today or--

THE COURT: I would assume shortly before--out of the presence of the jury, but before we resume on Monday.

MR. DOUGLAS: Correct.

MS. CLARK: Okay. And then we intend, as I indicated to the court, to begin with the glove photos.

THE COURT: All right. Who are your glove photo witnesses?

MS. CLARK: Mr. Hodgman has the list. Gordon Bella.

MR. NEUFELD: I'm sorry. Could you speak a little--

MS. CLARK: Gordon Bella, Karen Brown, James Chegia.

THE COURT: How do you spell that?



MS. CLARK: Correct. Debra Guidera, Mark Krueger.

MR. NEUFELD: I'm sorry. Could you please spell those names?

THE COURT: Krueger is 27 on the witness list.

MS. CLARK: Uh-huh. And Richard Rubin.

THE COURT: All right. The first--

MS. CLARK: William Renken.

THE COURT: Renken?

MS. CLARK: Yes, your Honor.

THE COURT: What is this person's role?

MS. CLARK: William Renken is another person with the glove photographs.

THE COURT: Do you intend on calling all these photographers?

MS. CLARK: To lay the foundation. It's about one minute of questioning. "Did you take this picture? "Yes. "When?" That's it.


MS. CLARK: Where. And where. I mean, the total sum of all the photographers, the number of them is about 10. Their questioning will take about five minutes each if that, and that's it. It's just a foundation for the picture.

THE COURT: All right.

MS. CLARK: Richard Romano. I'm sorry. Richard roman, Michael Romano. And I said Richard Rubin. Kevin Schott, Rob Seib, S-E-I-B. That's it. And an NBC representative.

THE COURT: All right. After you conclude with the glove photo witnesses, who do you anticipate using after that?

MS. CLARK: After that, we intend to call Gary Sims.

THE COURT: As to what issue?

MS. CLARK: That's the blood in the Bronco, the RFLP result on the console.

THE COURT: All right. And are you going to need to recall Dr. Weir?

MS. CLARK: We need to address the court on that matter.

THE COURT: And what is the status of the DOJ RFLP?

MS. CLARK: Four probes. There was a four-probe match to Ron Goldman and the Defendant.

THE COURT: As to each?

MS. CLARK: It's a mixture. I think it's as to each. I'm not prepared to address that, your Honor. That's going to be addressed to the court by Brian Kelberg. I assumed it would be Monday.

THE COURT: All right. I would suggest then that we set for a hearing Monday probably at 5:00 for--because we have that issue of the timeliness of performing the RFLP that's been raised.

MS. CLARK: Okay.

THE COURT: All right.

MR. SCHECK: Your Honor, this--we received another autorad this afternoon, and the problem I have is that, anticipating that we were promised a report from Mr. Bodziak, we haven't gotten it, I got a report yesterday from Mr. Popovitch, the glove photographs were supposed to be turned over, haven't been turned over.

THE COURT: Counsel, let's take this up one item at a time.

MR. SCHECK: All I'm saying is that I would prefer--and I don't see any reason why it shouldn't be done--that we address this now. I'm prepared to argue it. It was scheduled to be argued. It's not fair to dump all this discovery at the last minute on us. We're going to ask for adjournments. I'm telling you right now, we're going to ask for adjournments because they've been playing with it. They had this stuff.

THE COURT: All right. Counsel--

MR. SCHECK: They haven't been turning it over. If we could eliminate this--

THE COURT: I've heard enough.

MR. SCHECK: --and stop this issue--

THE COURT: I've heard enough.


THE COURT: Thank you. All right. Sims. Then probably who? Weir?

MS. CLARK: Well, depending on the court's ruling. That's what we are going to need to address with the court, as to whether or not Mr. Sims can be allowed to do the numbers. And then Brad Popovitch.

THE COURT: Popovitch was who? Refresh my recollection.

MS. CLARK: Brad Popovitch is--

THE COURT: Oh, this is DNA, PCR lab stuff?

MS. CLARK: Correct. Response to Gerdes.

THE COURT: All right. And then what topic are you going to move to after that?

MS. CLARK: Then we'll be seeking to admit the Thano Peratis video under 1202 of the evidence code.

THE COURT: The Peratis--okay. That should take all of about five minutes.

MS. CLARK: The Peratis video? Correct. That's very brief.

THE COURT: Yeah. Okay.

MR. DOUGLAS: Assuming it's admissible.

THE COURT: Correct. But if you recollect, we had a long discussion about this.

MS. CLARK: Right. Right. The Ackards, I think Lawrence Ackard and his wife.

THE COURT: As to what issue?

MS. CLARK: That goes to Robert Heidstra.

MR. DOUGLAS: What's the wife's name?

MS. CLARK: Pardon?

MR. DOUGLAS: What's the wife's name?

MR. DARDEN: I'll give you the wife's name in a minute.

MS. CLARK: Heidstra.

MR. DOUGLAS: The wife's name.

MS. CLARK: Patricia Baret. Also goes to Robert Heidstra.

THE COURT: Is this the person in the pet shop?

MS. CLARK: I'm sorry. And Christian Anders. I'm sorry?

THE COURT: Was this the person in the pet shop or the vet hospital?

MR. DOUGLAS: Yes, your Honor.

THE COURT: All right. Who is the other person after Baret?

MS. CLARK: Christian Anders. And that's another witness who received a prior inconsistent statement from Robert Heidstra. George field, no. 20, another Heidstra witness.

THE COURT: All right. Where do we go after that?

MS. CLARK: After that, Dr. Don Dutton.

THE COURT: Dr. Don Dutton. As to what issue?

MS. CLARK: As to pre and post homicidal conduct of murdering spouses.

THE COURT: I sense a 402 hearing.

MS. CLARK: Yes. That may be so. He will be addressing the demeanor of witnesses called by the Defense if the court recalls.

THE COURT: All right. If you would, put together your P's and A's on that, both sides.

MS. CLARK: On Dutton?

THE COURT: On Dutton.

MS. CLARK: Okay.

MR. DOUGLAS: Can I get an offer what he'll testify to so I know how to address it?

THE COURT: Do you have a report from Mr. Dutton or any works or a CV from Dr. Dutton?

MR. DOUGLAS: I have a CV. Any notes or anything?

MS. CLARK: The Defense has his CV. With respect to his proposed testimony, we will be meeting with him tomorrow, and I will put together an outline of what he proposes to testify to.

THE COURT: Okay. Off the top of your head though--I'm sure you had preliminary discussions where you've decided you may call him. Can you just give me a heads up as to where we're going with that?

MS. CLARK: Yes. What he has done, your Honor, is, he himself has done a study interviewing men who have murdered their wives and reviewed their cases to determine what their pre-offense behavior was, their demeanor, and their post-offense behavior was, and it goes to the issue of what one would expect to see in their demeanor. That will--

THE COURT: Has Dr. Dutton been allowed to testify in any other courts with regards to this?

MS. CLARK: I don't know.

THE COURT: With regard to this?

MS. CLARK: You know, I hate to make a representation to the court. My sense of it is that he had. He's certainly very well-versed in the area as to what kind of behavior is to be expected given his studies and his involvement in the field. But I need to get with Dr. Dutton tomorrow to make sure of that.

THE COURT: All right. I'll need to see P's and A's on this. Okay. Where do we anticipate going after that?

MR. DOUGLAS: You appreciate the difficulty in our ability to respond yet until we have a chance to understand--

THE COURT: But I think the issue is pretty clear.

MS. CLARK: An additional area of inquiry of Dr. Dutton would be a victim's profile to debunk the myths.

MR. DOUGLAS: And what's that rebutting, your Honor?

MS. CLARK: And that goes to the testimony elicited by the Defense from Arnelle Simpson, Christian Riechardt--who else? At least those two witnesses though concerning the behavior of Nicole Brown in the time before her murder, her conduct with the Defendant. The--what the Defense is going to argue based on their testimony, your Honor, is that there were no problems between them because after all, she was still friendly with them, she was at the house with him and she had nothing to fear from him. That is a myth that can be uniquely addressed by someone involved and an expert--who is an expert in the field of domestic violence as Dr. Dutton is. He will be able to discuss the fact that the typical battered spouse syndrome or the battered spouse doesn't necessarily run away and stay away from the spouse who is doing injury to her of whom she is afraid, and that would go to address the issue specifically raised with Arnelle Simpson's testimony, that she saw Nicole sitting on his lap just weeks before the murder and Christian Riechardt's testimony concerning their--the nature of their relationship on and off again, coming back to each other, leaving each other.

THE COURT: All right. Where do we go after Dr. Dutton?

MS. CLARK: And with respect to where we go after Dr. Dutton, your Honor, we're going to need to--we will be filing a brief with the court and we are going to ask the court for the ability to bring in the evidence in the study prepared by Doug Deedrick concerning the rarity of the Bronco fibers. We believe that the Defense has opened the door to this in two ways. No. 1, that in his questioning of Kathleen Bell, Mr. Bailey brought up her--elicited from her a description of the vehicle driven by Mark Fuhrman, which was a pea green and white utility vehicle. There was no effort made by Mr. Bailey at any time to verify that that was indeed the vehicle that Mark Fuhrman drove at that time. I'm sure the proffer would be from him that he attempted to elicit that to show that she could identify Mark Fuhrman, that she did know him in order to impeach the testimony he gave that he did not remember her. However, without an effort made by the Defense to tie that vehicle in to Mark Fuhrman, what that tend--what the purpose of that was--and I bet the argument will be forthcoming--that he had quite a lection for that sport utility vehicle similar to a Bronco. So that's one area in which I think. The other one is the general attack upon the credibility of Mark Fuhrman. In that regard, it was the Bronco fiber that was found on the Rockingham glove. That goes to impeach--what that does is go to reinforce the fact that it was not planted, that it was indeed tied to the Defendant through the fiber from his car.

THE COURT: Okay. Well--

MR. DOUGLAS: Creator of this.

THE COURT: Put your P's and A's together, and we'll--but I'd like you to also include in your P's and A's cites to where it is in the transcript so I can--

MS. CLARK: Yes, we will.

THE COURT: Okay. All right. And then where do we go after Mr. Deedrick?

MR. DOUGLAS: Your Honor, this is all within five days?

THE COURT: Well, the photographers are going to go I assume very quickly.

MS. CLARK: Then we will--Mr. Deedrick will address the fabric impression on the envelope to which Dr. Lee testified.

MR. NEUFELD: I'm sorry. Is that Deedrick or Bodziak?

MS. CLARK: Deedrick.

THE COURT: Fabric impression. That's on the--I'm sorry. On the--

MS. CLARK: I think it's on the envelope. If my memory serves me, it was on the envelope, parallel lines that Dr. Lee testified to, which he thought might be consistent with a shoeprint, but which we had determined--I think we had determined--we haven't gotten the report yet--to be consistent with I believe the jeans of Ron Goldman. And Bill Bodziak to address the shoeprints testified to by Dr. Lee.

THE COURT: Okay. All right. Well, that ought to take a couple of days. All right. Mr. Scheck and Mr. Douglas have raised certain discovery issues regarding these matters and the most difficult, of course, being the scientific witness matters.

MR. NEUFELD: Your Honor, may I make one small suggestion first?

THE COURT: Certainly.

MR. NEUFELD: Which is that on this list of 60 witnesses, there are--since there's no indication whether someone is a Ph.D. or MD or an expert in any field, what we need to know for obvious reasons right now is who on this list of 60 people are intended to be experts. You've of course elicited from them several, but there may be many others. One person I see on the list, for instance, is a psychiatrist.

THE COURT: Saul Faerstein?

MR. NEUFELD: Yes. Also indicated here. What I would ask is, especially if it's the People's position that they intend to complete their rebuttal case in five days, given the list of 60 witnesses and given the obvious limitations that we have in being able to prepare cross-examination of these 60 witnesses and the special problems that arise from dealing with experts, notes, reports, 402 hearings, Frye hearings and the like, at a minimum, your Honor, today, so we don't waste a moment over the weekend, we would ask the court to find out from the People of the list of 60 who do they intend to elicit expert testimony from, and then as to those people, at least a proffer. So--because as Mr. Scheck was pointing out earlier, we need to know what's realistic so we don't go off on wild goose chases in the very short amount of period that we have to get ready for these witnesses.

MR. DOUGLAS: And as to lay witnesses, we would like names and addresses. Some of these names are new to me.

MR. NEUFELD: What concerns--you know, we're really concerned with the suggestion that this is all going to happen within five days, and this list is inconsistent frankly with that representation. So at the minimum, your Honor, right now, we need that. We need to know who the experts are or a very brief proffer, not extensive, but just kind of the thumbnail sketch you asked for so we can know where we stand.

THE COURT: All right.

MS. CLARK: I'd just remind the court this comes from the people that repeatedly gave us people on the short list who were never called, people who I prepared for extensively who were never called and I didn't find out that they were not going to be called until yesterday. So I just want the court to get a sense--

THE COURT: I have my own list of witnesses that we haven't seen. So--

MS. CLARK: Right. Okay.

THE COURT: I understand that. But--

MS. CLARK: But in order--

THE COURT: As you know from our conversation yesterday, Miss Clark, my biggest concern is finishing this case with an intact jury, and delay is something that will be anathema next week.

MS. CLARK: I agree. I'm sure we all agree. No question about it. I thought it very important to be as thorough as possible. I don't want to be caught short that way with respect to who is the experts I mean.

THE COURT: Why don't we go down the list. Let's identify who the experts are.

MS. CLARK: Michael Baden. Now, Michael Baden would not be called for expert testimony. I think I should indicate as to Mike Baden and Faerstein, they would be called for the events of June 17th.

MR. DOUGLAS: What's the proof for that, if I may ask the court, your Honor?

MS. CLARK: Talking about the chase.

MR. DOUGLAS: I don't recall there being any Defense case witnesses that would have raised that issue, so as to make this a proper--

THE COURT: That's a scope issue. What we are going to do is identify experts.

MR. DOUGLAS: Very well, your Honor.

THE COURT: We're not at the scope issue yet.


THE COURT: Okay. Baden and Faerstein you're only offering for their non-expert observations of the events of June 17th?

MS. CLARK: That's right, your Honor.

THE COURT: Okay. I take it obviously Mr. Bodziak is an expert.

MS. CLARK: Except--let me make one proviso on that with respect to Dr. Faerstein. He will be able to tell us the effects of Xanax, which were found in the Defendant's possession on June 17th.

THE COURT: All right. I have Mr. Bodziak as an expert.

MS. CLARK: Right. And I've already informed the court what's that about.

THE COURT: Douglas Deedrick.

MS. CLARK: And the court knows what that's about.

THE COURT: Peter DeForest.

MS. CLARK: That's the--that goes to the socks.


MS. CLARK: The court's aware--

THE COURT: I know who--

MR. NEUFELD: Well, I'd just remind you, your Honor, there's two issues on DeForest. One is that you review other material to see if it's Brady and exculpatory material. And, 2, although the People have made one representation that his testimony would be about socks, I just would like a thumbnail sketch proffer of what other topics is he going to be addressing. Not in detail, but what other topics so we can look into it.

THE COURT: Well, let's go through here first and see who the experts are, and then we'll go back and see if anybody is a mystery to you. All right. Let's start at 20. George field.

MS. CLARK: None of those are experts until we get down to Roger Leach.

THE COURT: All right. And who is Roger Leach?

MS. CLARK: And Roger Leach is an expert pertaining to the rarity of the Bronco fiber.


MS. CLARK: Let me indicate something to the court in that regard if I may. Roger Leach--and skipping over to the next page--I don't know if they're on here yet--Norm Anderson and David Boyce, okay, those three would all be called in an expert capacity concerning--it's the manufacturing of the--of the fiber. Each one would be giving testimony of about 10 minutes in length because all they're going to say is--for example, Roger Leach would go to the fact that the dye used for the carpet fiber that was identified by Doug Deedrick was used in this time frame by this company and sold and put into these kinds of cars. That's it. And with respect to Norm Anderson, this kind of carpet, this cross-section of carpet fiber was manufactured between these times and that's it. So--and we're talking very, very limited testimony from these people.

THE COURT: All right. Who else are your experts on your list? Brad Popovitch?

MS. CLARK: Right. Brad Popovitch.

THE COURT: How about Steven Oppler?

MS. CLARK: Steven Oppler is a D.A. investigator. He's just there to authenticate the Peratis video.

THE COURT: All right.

MS. CLARK: And Richard Rubin, expert. Everyone's aware of him. Gary Sims' already known. Bruce Weir, known. That's it.

THE COURT: All right. What is your--I'm concerned about the presence of Leroy Taft.

MS. CLARK: Again--okay. With respect to--I'm sorry. One moment.

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

MS. CLARK: All right. Leroy Taft and Cathy Randa I believe are on the list because we intend to, as part of the events of June 17th, present the fact that they within presence of Mr. Simpson's departure from Mr. Kardashian's house, went to union bank to his safety deposit box and recovered large sums of cash in a briefcase. This all goes to part of the chase which goes to consciousness of guilt. And we could file--we could ask leave of the court to file P's and A's on this issue for the admissibility of this testimony if that's in question.

THE COURT: I think it's a scope issue; wouldn't you say?

MS. CLARK: I understand.

MR. DOUGLAS: Your Honor, my understanding is that the witness recanted that version. So I think that's a foundational issue as well.

THE COURT: All right. Okay. We've identified the experts. All right. Mr. Neufeld and--either you or Mr. Scheck, why don't you address your concerns regarding the status of our discovery issues.

MS. CLARK: Your Honor, I'm sorry. I'm not the one who's privy to that information, and Rock Harmon is the one who is. Concerning the RFLP results? Is that what you're--

THE COURT: No. I just mean all the expert witnesses. I'm just interested in what the status is regarding all of these people and all of their reports, et cetera, et cetera.

MS. LEWIS: Your Honor--

THE COURT: Speak of the devil.

MR. BLASIER: There's also discovery issues as to the gloves.

MR. NEUFELD: Just as a procedure matter, would you prefer to deal with the discovery or would you prefer--

THE COURT: No. I want to get the discovery issues out of the way first.

MR. NEUFELD: Before we deal with the scope of rebuttal.

THE COURT: Yes. Yes. I would rather have you preparing over the weekend. All right. Norm Anderson, no. 5, that was as to--Norm Anderson is one of the fiber people, correct?

MS. CLARK: Right.

THE COURT: Do you have any reports from this person?

MS. CLARK: All of the information that they would testify to was turned over in the People's case in chief when this issue first arose.

THE COURT: All right. Michael Baden, that is not being offered as an expert?


THE COURT: Mr. Bodziak was one of the issues that came up before. You've turned over his notes, correct?


THE COURT: Are there any other notes or reports?

MS. CLARK: No, your Honor.

MR. SCHECK: Your Honor?


MR. SCHECK: May I point out that Mr. Goldberg indicated to me he was unaware of it, but as the court distinctly recalls, Mr. Hodgman and Mr. Yochelson represented to all of us that we were going to get a report from Mr. Bodziak. It's insufficient to simply say he is going to testify about shoeprints because that's what he did on his testimony in the direct case. What is he going to testify in rebuttal to Dr. Lee? In regard to which exhibits, which scientific tests? In addition to that, it appears now from pictures that were given to us yesterday that the jeans were, without notice to us, used in a fashion where it appears Mr. Goldberg informs me that we have a picture of Ron Raquel doing something or taking an impression of them which was then sent back to the FBI who aren't given any--I don't know if that could potentially be a destructive test. We weren't given any notice of that.

THE COURT: What kind of test was this?

MR. SCHECK: I don't know. They were taking--they were manipulating the imprints on the jeans in some fashion, whether to take impressions of them or not, to send them to the FBI for purposes of testing. That was quite aggravating, is that as we are discussing the scope of all of this and what discovery should come over and we're trying to find Mr. Goldberg to find out what dates contact sheets were turned over and the rest of it. They're off doing these things without giving any notice of potentially destructive tests so we could have somebody present to see what they're doing and get some handle on this and at least request permission to be present when any impressions or testing or comparisons were being conducted by the FBI. They're doing this now. Mr. Goldberg told me yesterday--he can speak for himself on this point--that these fabric things were being sent to Mr. Deedrick and they were going to find out what the results were. I think he said that this morning. Now I'm finding out something this afternoon. There's nothing here. But I think it's really improper that they didn't give us any notice whatsoever that they were even going about doing this so we could have somebody present to make a record of it and if it was a potentially destructive test. That's one thing. The second thing is, it's not enough to say that Mr. Bodziak is going to testify about shoe imprints. It's got to be directed towards what, if anything, he's going to say in rebuttal of Dr. Lee on what specific points of evidence because he testified to the other stuff on the direct case. We've gotten nothing here, and they told us they were going to give us this a week from now, and it seems to me that there's a big double standard. They shouldn't be allowed to take advantage of the fact that we're all sick and tired of how long this is taking and the jury is sick and tired and we're all on edge. But the point is, I will not on behalf of this client permit this kind of situation where we're going to be ambushed. It will not happen. I will ask for adjournments, take as long as it need be to have the appropriate people look at this, and I protest the potential destructive tests on this evidence without notice to the Defense.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: I thought it was the court that decided what was going to be allowed and not allowed, not Mr. Scheck. Maybe I'm mistaken about that. As to the test impressions, your Honor, first of all, these test impressions are nondestructive. When Dr. Lee testified, I learned for the first time during his testimony that he had concluded that the shirt that was worn by Ronald Goldman in his opinion could not have created the impressions on Ronald Goldman's jeans. He had previously told me in telephone conversations that we had had prior to his testimony that he believed that the jeans did not create the impressions on the evidence envelope or the piece of paper. I assumed--I do not recall asking him, but I assumed because it is a standard forensic practice that Dr. Lee took test impressions from Ronald Goldman's jeans and from his shirt. I was flabbergasted when I learned that that was not the case and that he was testifying to an elimination without having made a test impression. When I spoke to Mr. Bodziak about this, he informed me that you have to take a test impression in that situation. I told him that in my opinion, it seemed to me that the jeans could not have created the impressions on the envelope and the piece of paper because I thought that just from my knowledge of--lay knowledge of the jeans, if you press them down on a piece of paper, you get a flat impression, that you wouldn't get parallel lines. Well, I was incorrect in that assessment and we have taken these test impressions, which is a nondestructive technique, in order to send them to the FBI and did so immediately upon learning of this potential problem with Dr. Lee's testimony. So I don't see any basis for the point.

THE COURT: What is the medium used to take the impressions? I mean, do you--

MR. GOLDBERG: Something called Identicator.

THE COURT: That's helpful.

MR. GOLDBERG: What--your Honor's never heard of it before, and it's a very nifty little device that we were sent by Mr. Bodziak that allows you to--well, for example, you can put your finger on it or any other object and then you put your finger on a piece of chemically treated paper, and the print then appears on the chemically treated paper and there is no noticeable residue left on your finger. So it's a nifty little gadget that--

THE COURT: It sounds like the kind of thing that one does with check identifiers. Anyway, Mr. Scheck?

MR. SCHECK: Just looking at this picture they gave us, it appears as though it left an impression on the blue jean. My point is it--he doesn't know whether it's nondestructive or not, whether it's going to change the imprint impression on the blue jeans or not. It certainly was appropriate to notify the court--that is the practice. That is the griffin problem--that what was going on here. This is--

MR. GOLDBERG: Well, I'm not going to address all of Mr. Scheck's issues. No. This is clearly without any doubt a nondestructive test. It's not even a test. It's just taking an impression. I mean, we all know what impressions are, and we took impressions and I think we're entitled to do that without any question and wanted to do it as quickly and expeditiously as possible so that I could send these things out immediately. They arrived I think a couple of days ago at the FBI and the analysis is under way. Obviously, we want the opportunity to be able to present this evidence.

THE COURT: Who will be presenting that? Mr. Deedrick?

MR. GOLDBERG: It's going to be a combination of Mr. Deedrick, probably mostly Mr. Deedrick and perhaps Mr. Bodziak as well. Mr. Deedrick apparently has expertise in fabric impressions and Mr. Bodziak has expertise in shoe impressions. So it's sort of a dual testimony that will be presented to address this issue.

THE COURT: So--but this testing is still ongoing?

MR. GOLDBERG: Well, I wouldn't call it testing. It's comparison.

THE COURT: All right. Do you have any results yet?

MR. GOLDBERG: I don't have any results other than tentative results that have been relayed to me by Mr. Deedrick.

THE COURT: And what are those tentative results? What do they tell us?

MR. GOLDBERG: That he thinks that--and I hesitate to repeat them because I may be misstating or oversimplifying what he told me because he has not completed his analysis. And as the court knows, forensic experts usually don't give you much of anything until they're comfortable they've reached a certain state of comfort with respect to their analysis. But reading in-between the lines, my interpretation of what he was saying is that the marks on Ronald Goldman's jeans are consistent or may turn out to be consistent with the shirt and that it does appear that the marks on the eyeglass envelope and the piece of paper are consistent with a Levis blue jeans. But as I said, he hasn't finished his analysis yet. And I also remind the court that Mr. Lee obviously just testified about a week ago and we did try to get on this very promptly in terms of taking the impressions and following up on this, and it was in relationship to Mr. Lee's testimony. And I will point out that that was not in any report or notes of Dr. Lee, that he had excluded these two items, and the only reason that I knew about the jeans is because he had told me about that orally and I learned about the shirt on the witness stand and I didn't know that he didn't take test impressions from that until he testified from the witness stand. Now, as to the issue of reports, your Honor, I agree with Mr. Scheck that there appears to be a double standard here that's being requested because they have said over and over and over again that there is no duty to create reports. That is an argument that the court is very familiar with and they have said that they have not asked their experts not to create reports, but that their experts simply don't create them. In this particular situation, Mr. Deedrick doesn't have a report yet. Mr. Bodziak is going to be testifying in I believe it's Miami on Monday and then he has several other commitments. So he hasn't written any additional reports. However, I will say just, as a little hint that I don't think we're obligated to give, that if counsel looks very, very carefully at the discovery materials, they will find what obviously Dr. Lee found because Dr. Lee said that he disagreed with the report of Mr. Bodziak. So this is a subject about which there already is some materials that the Defense has and may want to take a look at. Perhaps they should have taken a look at it a little bit earlier. But the point is that in terms of our discovery obligations, we have not told Mr. Bodziak either to create--or at least I have not told him to create or not to create a report. I simply asked him to try to look at some of the materials and photographs we sent. And the same thing is true with Mr. Deedrick. And they will do whatever they normally do. And I do not know how the Defense can now argue that we are entitled to create something that does not exist when they have always taken the position that that is not required under 1054.

THE COURT: As to Deedrick and Bodziak, what kind of notes have you produced with regards to this latest testing?

MR. GOLDBERG: There is no testing.

THE COURT: I mean, as to any of their activities in response to Dr. Lee's testimony, any notes?

MR. GOLDBERG: No, your Honor. The items that we sent I believe arrived or Mr. Deedrick opened the box that contains the test impressions on either Wednesday or Thursday and then there's also some photographs that we sent to Mr. Bodziak which he looked at and opened the box the first time yesterday. So this is all happening very rapidly, and to my knowledge, have not generated any notes other than that which Mr. Bodziak had previously generated prior to his testimony on the witness stand when he reviewed the items, including the jeans and the eyeglass envelope and paper.

MR. SCHECK: Your Honor, I have some concerns. First of all, let me mark two pictures, P-4--

THE COURT: Well, counsel, we're not going to hold a hearing right now to see whether or not this is a destructive or nondestructive test.

MR. SCHECK: I understand that. I'm just passing up the photographs so the court can look at it to see whether my concern is made up or if it's evidenced by the photographs.

THE COURT: No. Counsel, I share your concern about what may or may not be there as a result of having taken impressions from the Levis. The problem is, we need the witness here probably in a 402 hearing outside the presence of the jury to tell us what kind of tests these were.

MR. SCHECK: Well, my initial concern first of all--and I want to make clear--is that they had no right to do this without notice, and that was wrong.

THE COURT: All right. Counsel, we're here to find out what materials you have.

MR. SCHECK: Secondly--I have nothing.

THE COURT: All right.

MR. SCHECK: Secondly, it's very well for Mr. Goldberg to say that they're not going to ask him to write reports. But Mr. Hodgman and Mr. Yochelson, while he's off dealing with them, have told us, told you, told me on the record that Mr. Bodziak is going to be asked to fill out a report and, yes, they would get a report from him. So it seems to me that that is improper. It's one thing if it's not their normal practice to write a report. It's quite another thing to come in and tell us that we're going to get a report, we'll get it at the beginning of the week and we get nothing.

THE COURT: And if you recollect, I told you I would be surprised if Mr. Bodziak did not produce a report.

MR. SCHECK: That's right.

MR. GOLDBERG: Mr. Yochelson and Mr. Hodgman have informed me--and I asked them about this previously--that that is not what they stated and that they stated that if we got a report, they would turn that report over. They did not say that we were going to create a report or they were going to ask Mr. Bodziak to create a report, and that is the representation that they made to me when I asked them this issue earlier this morning.

MR. SCHECK: All this goes to timing, and it seems to me that we're in no position given these activities and given these tentative results and given the way they went about doing this without notice so that we could monitor this, and they have everything we've done. They've had somebody looking with a video camera taking pictures. Very upsetting, that we're going to be ready to deal with this at all. I mean, right now, we don't have a date certain where we've seen no one report, one comparison or examination 1 as to any of this.

THE COURT: All right. All right.

MR. SCHECK: And we are putting everyone on notice that we're going to need an adjournment.

MR. GOLDBERG: Maybe Mr. Scheck can put us on notice as to what statutory provision, case law or order of this court says that we can't examine the evidence without notice to the Defense. I am unaware of that. It's never happened--it's unprecedented in our legal system. It's never happened.

THE COURT: Wait, wait.

MR. SCHECK: But we had griffin rulings on this.

THE COURT: Wait. All right. All right. DeForest, you've turned over the--his notes. I'm still going over the notes to see if I find that there's any Brady material in there.

MR. NEUFELD: In addition to that, your Honor, I'd like a proffer at this time as to DeForest. They've already told us they intend to use DeForest--


MR. NEUFELD: --on the socks to rebut McDonnell and Lee on the third surface ankle stain. Are there any other subjects?

THE COURT: Is that it? DeForest, socks?

MS. CLARK: May I allow Mr. Hodgman to address the court, your Honor? Could I be excused, please? I thought we would be done.

THE COURT: Mr. Hodgman, DeForest, socks. And let me just add this. Counsel, in my review of all of DeForest notes, there are some things I need to ask the Prosecution about with regards to Brady materials. So I'm going to--who is handling DeForest?

MR. HODGMAN: In terms of the actual testimony? That hasn't been decided yet, your Honor. I've been talking with Mr. DeForest over the past several weeks.

THE COURT: For the purposes of the 1054.7 hearing and the Brady hearing.

MR. HODGMAN: I'm the one.

THE COURT: You're familiar with the materials?


THE COURT: All right. Then I'm going to direct you to be in my chambers Monday at 8:30. I have some questions to ask you about some of the notes.

MR. HODGMAN: Very well. And, your Honor, just to advise the court and counsel, whether Mr. DeForest testifies at all remains a question. I'll be speaking with him again tomorrow. And I should advise the court as well, with regard to Mr. Bodziak, with regard to Mr. Deedrick and Mr. DeForest, as far as I've been advised, these individuals have schedules other than just responding to us and there sometimes are practical problems even making them available to us for moving the case ahead. With regard to Mr. DeForest, I'll be speaking with him tomorrow morning. At this time, I would anticipate his testimony would cover the socks. We provided all sorts of discovery with regard to that. As to any additional areas, I think it's very questionable at this point in time.

MR. NEUFELD: Your Honor, the only concern I have that it being questionable is that we were told about three weeks ago that other items of evidence were also forwarded to Peter DeForest in New York besides the socks; the envelope, for instance, the bindle from item 47. So, again, just to avoid the problem of, you know, ambush here or some last minute change in this, they knew three weeks ago when these items were sent to him what his reaction was to these items and if he was going to be providing expert testimony to repute Defense experts. And it's difficult for me to accept that three weeks later, when the Defense has rested for all intents and purposes at least, although we haven't done it officially yet, they don't know who is going to be addressing these other issues for which they received the evidence to examine more than three weeks ago.

THE COURT: Well, it seems to me that they've had the opportunity to review his notes and they've decided so far only to offer them as to the socks. If that changes, then we can take it up. But I'll accept Mr. Hodgman's representation at this time. All right. As to--let's see. Leach was one of the fiber carpet people, correct, carpet fiber people?

MR. HODGMAN: Yes. That's correct, your Honor. Miss Clark is most conversant with that, but I'll substitute in.

THE COURT: All right. But the representation is that what they would testify to was turned over in the report that was provided during the People's case in chief.

MR. HODGMAN: And that's correct.

THE COURT: All right. Brad Popovich?

MR. HODGMAN: Notes and reports have been turned over.

THE COURT: Richard Rubin. Are we going to get another report from Mr. Rubin?

MR. HODGMAN: No. The most recent--

THE COURT: Or an interview or report.

MR. HODGMAN: A taped interview and a report as to notes from a subsequent interview were turned over last week.

THE COURT: All right.

MR. BLASIER: My understanding, there was one picture that was sent back to him after that interview took place. I haven't heard anything about that.

MR. HODGMAN: And, Mr. Blasier, you are correct. If I can have just a moment.

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

MR. HODGMAN: Your Honor, with regard to that last photo, we don't have a written report. We understand that Mr. Rubin's opinion is--that it is the photo that was last sent, was consistent--and we'll identify that for you, Mr. Blasier, in the material that we--we have some more discovery material you had asked us to prepare, and we'll turn that over.

MR. BLASIER: Your Honor, we have other concerns regarding discovery. I don't know if you want to hear those.

THE COURT: Where is the material?

MR. HODGMAN: Right here. Mr. Armstrong--

THE COURT: Hand it over to Mr. Blasier.

MR. BLASIER: I'm told all the reports aren't here yet. I want to hear about whether we can be ready to do this on Monday. There's some points I need to address the court on that.

THE COURT: I just want to make sure that the reports with regards to these experts have been turned over. I'm just about to get to the end of the list.

MR. BLASIER: I was told the report's not here. It's on its way down I guess.

THE COURT: Why don't you take a look at it, see what you got. All right. As to Gary Sims, this is the RFLP. Mr. Hodgman, as to Gary Sims, this is as to the Bronco RFLP results?

MR. HODGMAN: I'm not the most conversant in that. If Mr. Harmon may address that.

MR. HARMON: Yes, we've turned it all over. I would like to clarify. Mr. Scheck complained at the beginning of one of those diatribes about just getting autorads and generalized that we were playing games. The reason he just got that one--because the date on it is September 5th. So it's a little bit--that's pretty fast, your Honor. So I think he needs to be a little clearer and fairer or more objective in his complaints. So everything's been provided or at least until I hear otherwise, I think everything's been provided.

MR. SCHECK: I'm saying we just got this. The point, I would respect--since Mr. Harmon is here, I would respectfully request that before the end of the day, that we argue this issue because given the way this discovery is coming in, there's going to be a lot of work trying to catch up with what they're giving us in drips and drips, and perhaps if we could clarify this, it would help a lot.

THE COURT: All right.

MR. HARMON: Can I--I know personal commitments don't matter, but my last plane is at 7:30. So--and this was not on the agenda today, your Honor. This was--this was not on the agenda until 11:59 and a half when Mr. Neufeld, when everybody was leaving court, asked you if we could kind of talk about some of these things. So that was not on the agenda today. Mr.--

MR. SCHECK: Scope of rebuttal.

MR. HARMON: Pardon me. Mr. Sims was here yesterday. If--I know we've discussed this many times as this trial has progressed. Mr. Sims was here yesterday. If somebody really wants to hear why it took so long, there's only one way and that's to have Mr. Sims here with all of his time sheets. And he's just not here. So I have no idea what the legal issue is no matter how many times I hear about the complaint. So I don't think it is appropriate. I know they--this is something they've known about since July by the way. So this is not a surprise. The other shoe dropped, then the other shoe dropped, then the other shoe dropped, then the other shoe dropped on September 5th. So this isn't a surprise, that four shoes have dropped on this set of mixtures. But I--if they want to have a hearing, we can have a heck of a hearing. It's going to take awhile and I'd like Mr. Sims to fully explain everything, including all the time that Dr. Blake took of his doing this. So that's the only problem. I know they really want to do this now, but we can discuss it superficially, but the only real way to get to the bottom of this is to put Mr. Sims up there and let him explain. That's going to take a long time, but that would be fine.

THE COURT: All right. When will Mr. Sims be available next week?

MR. HARMON: He'll be here Monday morning. He'll be here Sunday night. We could do it Sunday night if they want to find out about it before Monday morning. We'll be on a 7:30 plane down Sunday night.

MR. SCHECK: Your Honor, if I might very briefly. I have reviewed the record on this. It was scheduled to be done today, not the day before, as soon as we got an opportunity to take up the scope of rebuttal arguments. And there's no need to call Mr. Sims on anything because the record is very clear. The--in March, this court granted them permission to combine the samples 303, 304, 305 from the Bronco. Almost at that point, we began a discussion about the fact that immediate testing would be necessary in order to make sure that this evidence would be available before the end of the Prosecution's case, whatever the results. And at that point, I began saying that this would be improper to raise it on the rebuttal case.

And I commend the court's attention to the transcript, page 27331. We discovered--and you did take testimony or statements from Mr. Sims on this. He wasn't quite sworn in, but he was sitting in the audience. But you indicated that when they were given permission to combine the samples, it was the understanding--and you said at page 27331 of the transcript, it was all our understanding in March that testing would begin immediately if not sooner, quote, unquote. That's what you said. Then it became apparent that initial quantitations were done, but no RFLP testing had begun in earnest, and then we had a discussion of this matter in May when it was revealed that they hadn't done anything for a month and a half except these initial quantitations, and at page 27332 of the transcript, you asked Mr. Sims questions about whether or not--how long it would take to finish the test. This is on May 12th. And he said a month and a half to two months, at which point--and I was arguing then that this was improper because they should have started it earlier because it's something that could have been available to them at the end of the Prosecution's case and it was going to create an unfair situation if they were going to sandbag us with this issue on rebuttal. And the court's statement in resolution of this issue at page 27340 was, "Well, I don't have to reach this now because," quote, "We may have a preclusion by the passage of time." So the court gave a very clear signal to the Prosecution that, A, it was expected, once the stains were all--permission was given to destroy all that evidence and combine them, that the testing should commence immediately if not sooner; B, the record has already been established that they didn't do that for at least a month and a half if not longer; C, in May, Mr. Sims in response to the court indicated that it would take one and a half to two months to do the test. So it still could have been done before the end of the Prosecution case and it was not. They did delay even further. Now, the point is, if one goes back and looks at the transcript, Mr. Harmon and the Prosecution has taken to the position since the beginning of this case that they had a right to do whatever testing they wanted exactly when they wanted it, that they were under no obligation in terms of reasonable necessity or timeliness to do it in a fashion to get it done when the case started. And we went through that and we litigated that and the court gave them permission to do that.

And he was taking a legal position then, well, we can do it whenever we want to. And the court gave very clear signals, very clear signals at the time that permission was granted for them to combine all these samples, that it should be done, testing should commence on that immediately if not sooner. Then the court gave a very clear signal that preclusion by time would happen if they didn't get it done by the end of the direct case because it's something that was available to them. I raised the issue that in terms of the law of rebuttal, that if--I think there's three factors here. Would it be available to them on their case in chief if they proceeded reasonably and as the court directed it would have been? Would there be prejudice if we were confronted with crucial evidence, a second factor, in an untimely fashion? No question about it. It made it very difficult to form the Defense case not knowing what the results from that would be and how. And then finally, a factor to consider in terms of the law of rebuttal, as indicated in our memorandum, would this unfairly highlight this evidence at the end of the case? Now, I think it's very clear and I alerted the court and the court alerted the Prosecution to exactly what they were doing. This was planned. And so it seems to me that this issue is already framed by the record as it stands. Finally--and this is another factor I think we have to take into consideration from the reports we were just given--is that this is a complicated mixture. Dr. Weir in a very baleful way in his report indicates that he has done some analysis here that he gave us, but he hasn't even completed what he considers the best analysis. And I'm sure the court won't forget the analysis and analysis and analysis over days of his being performed by Dr. Weir as he recalculated things as we waited for that to get done, and this RFLP mixture is something that we would definitely have to rebut with Dr. Shields on our case. So it seems to me that that is another factor in terms of the interest of justice considerations and the timing of this trial that should weigh heavily in this decision. But I don't think there's any question that they knew this day would come, and they were given fair warning and the record is clear and complete on this point, and I'd now very much like to resolve it because we need to prepare in terms of all the other discovery that they're throwing on us at the last minute. And I can tell you, we don't like the idea of having delays, but we're going to be forced to do it in terms of this imprint evidence, in terms of this glove business, all of it.

MR. HARMON: Just a couple points. We look forward to Dr. Shields, who calls himself a demigod, coming in. You recall him in that hearing out of the presence of the jury. So we anxiously await his appearance in this courtroom. I would like the court to remember that every time this has come up, Mr. Scheck has told you that all that evidence was consumed. And each time that he does that, I remind him that was not true then and it is not true now, and someday I would like him to be held accountable for continuing to tell you things that simply don't come close to the reality. I have my own notes compiled, a 10-page chronology beginning March 9th through August 3rd, that I would like Mr. Sims to recount to you because once again, it bears no relationship to Mr. Scheck's perception of what really happened through the course of the testing in this case. And--for example, the Defense knew before we rested what the results of the first probe were. They knew that. So to say that they never knew that and couldn't formulate their Defense, they knew what the PCR results showed. So they knew where the other shoe was going and the other shoe was going as long as we could keep testing it. All I've asked you for is an opportunity. You know, I'm not here every day, but nobody has told me that this was scheduled for today except Mr. Scheck and I'm not aware that it was. Mr. Sims was here yesterday prepared to testify in the case in rebuttal. So I want an opportunity to convince you that once again, Mr. Scheck has not fully informed the court, that contrary to popular belief, there are people who have other things to do in their professional and personal lives. There are deaths in the family as you recall, a long period of time when Mr. Sims was here in this lovely city waiting to testify, preparing to testify. So that's all--I want just a fair chance to convince you that there's not any factual merit to what Mr. Scheck has told you and there's no legal merit to it. I mean, that's one thing we've never come to grips with, that there's no legal merit to it. But I think you can easily resolve this on a factual level, and that's all I want a chance to do, is convince you with Mr. Sims here.

THE COURT: All right. I agree at this point that I need a factual explanation as to what testing was done, what the scheduling was. I am concerned, however, about that six-week delay between the time that the issue was presented to the court to allow the combination of those answers and before the actual commencement of the testing. I am concerned about that.

MR. HARMON: Absolutely. And we intend to address that with a day-by-day account.

THE COURT: All right. And he'll be available Monday?

MR. HARMON: Yes, your Honor.

THE COURT: All right. Next issue.

THE COURT REPORTER: Your Honor, can I change paper?


(A discussion was had off the record.)

THE COURT: All right. As I've indicated to counsel, my concern is getting this case concluded. So any of these special hearings are going to be days that aren't--days and times that aren't normally scheduled to be with the jury. So my guess is that we'll conduct this hearing Monday at 5:00 o'clock.

MR. HARMON: Fine. And hopefully if you--

THE COURT: Because I assume that despite the fact that the People say these photographers are only going to take five minutes apiece, I've never seen a five-minute witness in this case. So--

MR. SCHECK: Your Honor, just so the record is clear, Mr. Clarke is making Mr. Popovitch available to me tomorrow for a conference call. I'm going to be spending my time with Mr. Popovitch. I'm not doing one thing about Mr. Sims until we resolve this issue. And if we do lose it, I'm not ready to cross-examine him right afterwards. I just want to make that clear.


MR. HARMON: Is it okay if I don't do anything either, we both not do anything?

THE COURT: Have a nice day, Mr. Harmon.

MR. HARMON: Thanks, Judge.

THE COURT: You're welcome. All right. Mr. Blasier, as to glove issues.

MR. BLASIER: As to discovery?


MR. BLASIER: Last week, I think on Thursday, you ordered that the Prosecution provide us with equal quality photographs that they intended to use. And this might help to explain what Mr. Rubin is doing. His testimony is to the effect that he's looked at some pictures and Mr. Simpson is wearing some gloves at some football games in the winter and he says, "Look like Garrett Isotoners to me." Now, I didn't know whether that's a proper subject for expert testimony or not, somebody looking at a picture and saying it looks like something. He's not going to say it's the gloves in evidence. He can't say that. He acknowledges that. We didn't get those pictures. Obviously for me to show pictures to other people who might know about gloves, I've got to have the same pictures of the same quality, the same size gloves, whatever so that I can have experts look at them and tell me, "What do you think?" I also might want to make my own pictures of gloves that we have that look very much like these gloves and do them in the same size, the same resolution to test Mr. Rubin's ability to recognize different kinds of gloves. I don't know. The point is, I got 17 pictures at 2:00 o'clock. I've been handed another 27. Very nice pictures. I feel like it's Christmas. They're wonderful pictures, but what am I supposed to do with them at 5:30 on Friday afternoon when I'm supposed to cross-examine 10 people on Monday? I've been asking them every day, "Can you give me an idea which of these pictures you're going to use and who you're going to call?" Asked Mr. Yochelson almost every day, and he's very pleasant to me and shrugged his shoulders, said, "I don't know, can't tell you." Asked Mr. Fairtlough every day. "I don't know, can't tell you." Now I'm told that they have 11 people coming in on Monday, most of whom are from different parts of the country, and I have to assume that they made some decision before 2:00 o'clock this afternoon to bring people in from all over the country to put on all of these pictures, many of which by the way are pictures of Mr. Simpson wearing black gloves and not brown gloves. None the less, I can't be ready to cross-examine 10 people on evidence I just got this afternoon. This is a weekend. We've been in touch with glove companies. I've got 30 pages of lists of glove manufacturers all over the world, some of which we've already contacted. I've got gloves coming from Italy. This is the weekend. I can't prepare for this on Monday. This is ridiculous. This is not fair. Forget the beyond the scope argument. This is just not fair and we're not ready to do this on Monday. We'll have certainly objections to cumulative. A lot of this is just duplicative. We may be able to weed out a lot of these people that way. We may be ready to argue Monday, but there's no reason to expect that we can be ready on this kind of testimony, getting this stuff now on Monday.

THE COURT: Mr. Hodgman, when were these photographs available?

MR. HODGMAN: Your Honor, most of these photographs were available before today, and we provided the best available copies that we had to the Defense before today. I don't have a list before me with all the dates, but as Mr. Blasier well knows, we've been provided for well over a week with either laser prints, color laser prints or the like. As we indicated to the court and counsel, we did not have negatives ourselves. We had to take what was sent to us by various photographers. We had to go back and ask and otherwise attempt to obtain negatives so that we could comply with what Mr. Blasier asked. That is, that they obtain a like quality photograph of something we intended to present. The vast majority of those negatives came in either yesterday and actually the vast bulk of those came in this morning. We cleared our photo lab and pushed out those photos that Mr. Blasier received today. There was no delay in turnaround. They got them just about as soon as they came out of the developing tank and we provided better quality material then we had ourselves until yesterday and today. So there was absolutely no delay in getting the negative quality prints to the Defense.

MR. BLASIER: I think the court needs to be aware, I've been watching the reports as they've dribbled in this morning in terms of where these things came from, and every report that talks about when they got the picture puts the date at before they rested their case in chief. And things just came in today in terms of them knowing about them. There are several reports that came in this week. They don't have dates on them. The date they were received by the Prosecution has been conspicuously left out. But this isn't new stuff. We have been asking for this for a long time. Now we get it Friday afternoon, 5:30.

MR. HODGMAN: And for well over a week, they've had prints, the same thing that we have had, your Honor.

THE COURT: All right. Do I have a scope problem here if these matters were available to you prior to the resting of your case?


MS. LEWIS: Your Honor, I was just hesitating because we did file a brief in response to the Defense objection on the scope argument that I'm prepared to handle if you want.

MR. HODGMAN: And I'll defer to Miss Lewis on that if the court wants to argue that now. But as to the scope problem, I'll tell you just as a brief matter of fact, most of the glove material came in after we rested. I think there was two different submissions that I can recall, and one of those we're not even seeking to introduce. Be my guest.

MR. BLASIER: I was just handed a brief. Was this filed?

MS. LEWIS: We filed it earlier this afternoon, earlier this afternoon.

MR. BLASIER: Obviously I'm not prepared to respond to that, but--

THE COURT: All right. Miss Lewis, does this brief deal specifically with the gloves, dates, times?

MS. LEWIS: Yes, it does, in terms of--well, in terms of the scope argument, your Honor, there is case law supporting--it does not matter--

THE COURT: No. No. Does your brief specifically address the glove issue? Yes or no?

MS. LEWIS: In a broad sense, yes. It does not detail the dates in which everything was received.

THE COURT: Okay. All right. Then I guess we probably ought to take that up first thing Monday morning, scope of the glove presentation. But I'm going to need dates, times, declaration as to when those things were--

MS. LEWIS: Your Honor, please don't give a tentative before you've read the case law cited in my brief because it does not matter. The court may agree with the People's position that under much of the case law--

THE COURT: Well, I haven't--since you just filed it and obviously I've been busy all afternoon--

MS. LEWIS: I can appreciate that.

THE COURT: --I haven't seen it, I haven't read it yet. All right.

MR. BLASIER: The court's aware that we made certain tactical decisions on the Defense based on them not doing this before.

THE COURT: I'm thoroughly aware of that, counsel. There are several tactical decisions that have been interesting. All right. Experts, gloves. What else do we need to resolve now since we are not resolving much of anything?

MR. NEUFELD: What I would suggest, your Honor, if it's acceptable to the court, is, in light of the fact that--I think Mr. Blasier's already represented that he will not be prepared to go forward on the gloves. Even if you ruled that it wasn't beyond the scope of rebuttal on Monday and we're not prepared to go forward with those experts right away for a variety of reasons we've already laid out to the court, I would ask that the Prosecution be instructed to be ready with those civilian witnesses who we discussed the other day we got notice of several days in advance if you recall, the witnesses pertaining to Mr. Heidstra. There was a flight attendant from American airlines. The only other point I would make about the witness pertaining to Mr. Heidstra, even though the civilian witnesses--and we would be ready to deal with them, you know, as soon as the Prosecution starts the rebuttal case, I would point out to the court that Mr. Darden represented that the Heidstra witnesses are not rebutting Heidstra's testimony, but are simply trying to corroborate it. And if that's really what Mr. Darden means when he says that, then clearly that would not be appropriate for rebuttal testimony.

THE COURT: Well, that will be part of our scope of rebuttal discussion I suspect.

MR. DARDEN: And I didn't say corroborate. I said buttress.

MR. NEUFELD: What I would also ask, your Honor, is that the People be instructed to prepare by Monday, because we're going to be dealing with scope of rebuttal, any points and authorities they have on those other issues that you highlighted where bells went off I think like the Dutton issue, that that should be filed by Monday morning so that we can respond to it in a timely fashion if we're going to finish this rebuttal case in five days, that they also have their points and authorities by Monday morning on the Bronco fiber revisit that they're asking the court to do and they also have the points and authorities by Monday morning on the June 17th witnesses, because if we're going to deal with the scope of rebuttal, we need to have those authorities right away on Monday so that can be resolved. And I'm not trying to--I think it's reasonable, your Honor, because there's only so many of us, and if there's 59 witnesses, we have to figure out what the heck to do first. And until you--

THE COURT: There's only--wait, wait. There's only so many of you?

MR. NEUFELD: There are.

THE COURT: There's probably 20 of you on each side and there's only one of me who has to read all this stuff.

MR. NEUFELD: I understand that, your Honor, and that's definitely a disability. But it would certainly make it easier for you to get started on that if they got the points and authorities to you in on Monday morning so at least we know where we're heading.

THE COURT: All right. Well, as I mentioned to both sides, I don't tell either side how they're going to put their case on, what order they are going to call people, but it would probably be a good idea that you have people available on call in other topics or other areas in case the worst happens. I don't know. I haven't heard the scope argument yet, but you should be prepared to present some meaningful testimony to the jury on Monday.

MR. DARDEN: We will be prepared. I think we can accommodate counsel's request with regard to briefs on the fiber--

MS. LEWIS: Actually, when the court indicated it wanted the record cites on the fiber, we don't have the transcripts yet for the record cites on Kathleen Bell's testimony, for example, with regard to the type of automobile Detective Fuhrman drove.

THE COURT: All right. I'm encouraging you to be ready and have witnesses on call to go forward with other areas of your case in case we run into problems regarding gloves.

MR. DOUGLAS: For the record, your Honor, on--and I have some notes here. On August the 30th, following our discussion with Mr. Hodgman about who we were going to be hearing from in rebuttal, he said DeForest maybe, he wasn't sure. He said there was some glove evidence depending on an event to occur on August 31st. He named David Adkins. He named Miss Anders, Miss Baret, Mr. Fields, Mr. Bodziak and Miss DeTeresa. He wasn't sure about DNA. He wasn't sure about EDTA. Those were the other names we were given. Later Popovitch came up until this list we got today, and that just is intended to highlight the exasperation that we feel at this point given the abundance of the names and the order that is now being presented which we were not otherwise advised of before today.

MR. DARDEN: This is rebuttal. Mr. Gordon has informed us that he'll have a brief ready on Dr. Dutton first thing Monday morning. As far as the June 17th witnesses are concerned, they would be toward the end of rebuttal if the court were to permit us to put that evidence on. So counsel will have that additional time where we'll try and get the brief ready on Monday for that as well, and we'll do everything we can to move it along. We'll be ready Monday morning.

THE COURT: All right. Okay.

MR. SCHECK: What's okay?

THE COURT: They said they're going to file a bunch of briefs on Monday. We'll have our scope hearing first thing Monday morning. I'll do my 1054.7 Brady in camera hearing with Mr. Hodgman at 8:30. 9:00 o'clock, we'll have our scope hearing and hopefully by 10:00 o'clock, we'll be putting something in front of the jury. All right. And at 5:00 o'clock, we'll have our Sims hearing. All right. I'm tired. It's the end of the day.

MS. LEWIS: I just want to remind the court, I don't know if the court's even aware. We got served with a pitchess motion which I assume the court had noticed for Monday and order shortening time on that Purdy matter I believe.

THE COURT: Have we heard from the city attorney's office concerning the request for order shortening time?

MR. DOUGLAS: We had faxed them today, your Honor, a copy of the motion. We told Miss Lewis yesterday it would be coming. She asked that production be delayed. We ask the hearing itself be at 9:00, production if any at noontime.


MR. SCHECK: In that regard, actually, if Mr. Hodgman could track the cases involving Detective Purdy and Detective Fuhrman, and we could see if we could link those up as being the same incidents, then I think we would be well on our way factually to getting a more coherent handle on where that's all going.

THE COURT: All right.

MR. DOUGLAS: Your Honor, one final point. I'm reminded that in view of the court of appeals ruling today, we are this weekend reevaluating the wisdom of our choosing to rest on Monday and whether it's appropriate to take other appropriate steps.

MR. DARDEN: I can't imagine why they are complaining about discovery on rebuttal then when even they themselves say they're not ready to rest yet, Judge.

THE COURT: All right. I have one other matter that does not involve the parties. We had a violation of the court's order this morning regarding still photography in the courtroom, and I've determined to terminate the still photography in the courtroom. So I take it, Miss Sager, that's why you're here?

MS. SAGER: Yes, your Honor.

THE COURT: So if it's of no further interest to the real parties in interest, I'll excuse them at this time.

MS. SAGER: Your Honor, Mr. Saxton is also present. If the court would hear argument by Mr. Saxton.

THE COURT: All right. Let me allow the courtroom to clear.

(Brief pause.)

THE COURT: Miss Sager.

MS. SAGER: Yes, your Honor. Mr. Saxton is here, who is the still photographer who was running the pool this morning. It's my understanding that what has occurred is again simply what I think was a misunderstanding of an incident that's occurred before the court sometime ago when a still photographer took a picture during a break, which the court has ordered that no pictures be taken except when the court is in session. But during that hearing, there was a discussion of the need to take a test photo on certain occasions to make sure that the still camera was working, and it was the impression--

THE COURT: Test photo of the seal.

MS. SAGER: Yes, your Honor. At that time, the court made the comment when it was explained that he focused on people, because that's what normally is being taken pictures of, the court made the comment I believe, something to the effect of, "Well, that's what the seal is for." And the impression given to the still photographer and to the pool my understanding--

THE COURT: Miss Sager, let me tell you what causes me great concern and why I'm going to terminate the still photography coverage; is because when this happened--I heard the camera go off myself this morning when I was here at 8:30 and I was here out on the bench clearing items, getting set up, getting my computers running, making my notes, and I hear the camera go off, and I look and I see it directed towards me. And that's a direct violation of my order.

MS. SAGER: Well, your Honor, I believe the court has reviewed the footage, the one still camera shot that was taken this morning. It was not a picture of the court.

THE COURT: No. Miss Sager, I haven't had time. It would be a tremendous waste of my law clerks' time to send them down to fox photo to get one hour of photos. I haven't had the time to do that. I've been busy with other matters.

MS. SAGER: I appreciate, your Honor. And certainly Mr. Saxton or a member of the still photography pool is happy to take that task in hand. The picture as I understand it was not of the court. It was simply focusing on the far wall because the position of the still camera, given the screen that is between the camera and the seal, makes it difficult to focus--

THE COURT: And I just happened to be in-between those two things. Isn't that unusual?

MS. SAGER: Well, your Honor, if a picture was taken of the court, I could understand you being upset, and there was no intention to violate or flaunt the court's order.

THE COURT: I'm not upset about people taking my picture. I'm upset about the fact that it's a violation of my court order.

MS. SAGER: The picture, as I understand it, your Honor, was simply focusing on the wall so that a focus shot could be taken, which can't be done of the seal with the still camera the way it can of the video camera. And so the focus was on the far wall, because if you can't get something in focus, you can't tell if the camera is working or not. And that was what the camera was pointing at, and the camera was moving around the way it does without a picture being taken to make sure that everything is working, because unlike the video camera, my understanding is, the still camera has to be--excuse me--taken down or broken apart or broken down, whatever the terminology is, every night. And so they have to make sure in the morning that it is working when they put it back together. And that's the reason a test photo is taken. And Mr. Saxton can explain precisely the mechanism involved in having to do that. But it was not an attempt to take pictures of anyone in the courtroom and no picture as I understand it of anyone in the courtroom was taken, but simply a focus on the far wall. And to the extent that that was in disregard of what the court's intention was when it referred to taking a picture of the seal, then I know Mr. Saxton is deeply apologetic as are all the members of the pool. But the intent was to try to follow what the court had implied or at least was understood the last time this issue came up, which was, don't take any pictures of anyone in the courtroom. You're supposed to do your test shot, if you need to, on a stationary object, the seal, which is what the video camera focuses on when the court is not in session, not taking any pictures of anything or anyone going on in the courtroom. And it's my understanding that that's all Mr. Saxton was trying to do. And he is here and is happy to address the court and has written out an explanation that he's happy to have me submit to the court and would ask for the court's leniency in not--

THE COURT: The problem is, we've been through this once before, haven't we?

MS. SAGER: We have, your Honor. But as I explained, the upshot--

THE COURT: And I thought I was crystal clear.

MS. SAGER: Well, I appreciate that your Honor may have thought that. And again, we apologize if there was a misunderstanding, but that's all it was. And had a picture been taken of an individual in the courtroom, then that would seem to be more in line with a punishment that would be appropriate to a flaunting of the court's order. But here, what was done was an effort to try to satisfy the court's concerns that no pictures of people be taken when the court was not in session.

THE COURT: Well, all that had to be done was notify Miss Hayslett that there's a technical need to do something and that a regularly scheduled time that a photograph would be taken of some inanimate object in the courtroom. That was not done.

MS. SAGER: I understand that, your Honor. And that--as I said, Mr. Saxton and the pool are apologetic for that, but thought they were trying to--

THE COURT: So when I'm trying to get prepared for the morning and I hear the camera going off and I look and I see it directed at my direction, I'm concerned.

MS. SAGER: I can appreciate why the court would be concerned, and that's why Mr. Saxton has wanted to offer an explanation of what happened to make it crystal clear to the court that no pictures of your Honor were taken or of anyone in the courtroom, nor was there any intent to do that. And to the extent that there was a misunderstanding about the intent of the court's order when this last arose, that's all it was. They simply thought that the purpose of the discussion last time was to make it clear to focus on the inanimate object and take a picture.

THE COURT: Mr. Saxton, can you see the clock with your camera?

MR. SAXTON: Yes, I can, your Honor.

THE COURT: Next time, take a picture of the clock.

MR. SAXTON: Yes, sir.

THE COURT: All right. The fine is $250.

MR. SAXTON: Yes, sir.

MS. SAGER: Thank you, your Honor.

MR. SAXTON: I apologize, your Honor.

THE COURT: Accepted.

(At 5:50 P.M., an adjournment was taken until, Monday, September 11, 1995, 9:00 A.M.)


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

The People of the State of California,)


Vs.) No. BA097211)

Orenthal James Simpson,)


Reporter's transcript of proceedings Friday, September 8, 1995 volume 219

Pages 44558 through 44833, inclusive



Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Kelli Sager, Esquire Douglas E. Mirell, Esquire, Mark D. Rosenbaum, Esquire Matthew Schwartz, Esquire Ron Regwan, Esquire James K. Hahn, city attorney Mary Thronton House, assistant city attorney

ALSO PRESENT: Reed Saxon, photographer



Index for volume 219 pages 44558 - 44833


Day date session page vol.

Friday September 8, 1995 A.M. 44439 219 P.M. 44671 219



Motion re ACLU access to Fuhrman tapes 44439 219

Motion re discovery of rebuttal 44703 219 witnesses

Motion re scope of rebuttal 44819 219

Motion re violation of court order 44827 219 re photography


LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden D Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n



DEFENSE witnesses direct cross redirect recross vol.

(None this volume)



DEFENSE for in exhibit identification evidence page vol. Page vol.


602-A thru 602-E - 44700 219 posterboard with magnetic transfers re Bronco vehicle (Previously marked 601-A thru 601-E)

1000 - 44560 219

1001 - 44560 219

1004 - (Not withdrawn on the record) 219

1044 - 44588 219

1044-A - 44588 219

1045 - 44588 219

1044-A - 44588 219

1046 - 44588 219

1046-A - 44588 219

1048 - 44588 219

1054 - 44592 219

1066 - 44594 219

1106 - 44594 219

1115 - 44607 219

1158 - 44626 219

1184 - 44630 219

1195 - 44632 219

1158 - 44626 219

1184 - 44630 219

1195 - 44632 219

1196 - (Not withdrawn on the record) 219

1197 - 44632 219

1198 - 44632 219

1199 - 44632 219

1200 - 44632 219

1201 - 44632 219

1207 - 44633 219

1222 - (Not withdrawn on the record) 219

1223 - 44641 219

1252 - 44656 219

1271-C - 44697 219

1279 - 44682 219

1317 - 44683 219

1318 - 44683 219

1326-B - 44686 219

1365 - (Not withdrawn on the record) 219

1010 - 44702 219

1011 - 44702 219

1016 thru 1019-A - 44702 219

1027 - 44702 219

1043-A thru 1043-C - 44702 219

1053 - 44702 219

1055 - 44702 219

1078 - 44702 219

1082 thru 1084 - 44702 219

1101 thru 1104 - 44702 219

1117 - 44702 219

1118 - 44702 219

1121 thru 1123 - 44702 219

1133 - 44702 219

1134 - 44702 219

1140 - 44702 219

1143-A & 1143-B - 44702 219

1215 - 44702 219

1217 - 44702 219

1220 - 44702 219

1221 - 44702 219

1227 - 44702 219

1233 thru 1237 - 44702 219

1250 - 44702 219

1251 - 44702 219

1257-A - 44702 219

1257-P - 44702 219

1261 - 44702 219

1267 - 44702 219

1270 thru 1271-B - 44702 219

1320 - 44702 219

1328 - 44702 219

1329 - 44702 219

1331 thru 1337 - 44702 219

1337-C - 44702 219

1363 - 44702 219

1368 - 44702 219