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

APPEARANCES: (Appearances as heretofore noted; also appearing, William J. Hadden, on behalf of Detective Purdy; S. David Hotchkiss, assistant city attorney, on behalf of custodian of records.)

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

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

(Pages 44834 through 44835, volume 220B, transcribed and sealed under separate cover.)

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

THE COURT: All right. Back on the record in the Simpson matter. The Defendant is again present before the court with his counsel, Mr. Cochran, Mr. Blasier, Mr. Bailey, Mr. Uelmen. The People are represented by Miss Clark, Mr. Yochelson, Mr. Darden, Miss Lewis. Also present is Mr. Hadden on behalf of Detective Purdy, and Mr. Walsh, regarding the city of Los Angeles. We will take up the matter of the pitchess motion first. I will hear from the requesting party. Anybody wish to speak on behalf of discovery of the police records?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Just a second, your Honor.

(Discussion held off the record between Defense counsel.)

THE COURT: I see we are wearing team ties these days.

MR. SCHECK: Your Honor, we just received this and I haven't had a chance to go through it, but in just skimming it, it is clear that the application here is that we should not be entitled to these materials because they are not within five years, which is the limitation of the pitchess motion.

And I would like to reiterate the position of the Defense with respect to the materials, A, internal affairs investigations in this case involving Detective Purdy, Lucienne Coleman, Detective Arneson, Detective Vettraino, any others that were involved in these incidents. We feel that based on the application, the showing we made and the extended remarks that we made last Thursday, that we should be able to examine these materials and have access to them because we think they contain potential exculpatory evidence and even with the statutory limitations on seeking these records. Well, first those are current records. Internal affairs investigation that are within five years, even though they relate back to materials that are over five years old. So we think we are entitled to that. No. 2, for those materials involving Detective Purdy and other law enforcement officials that relate to their contacts with Mark Fuhrman and what we have outlined as the exculpatory evidence that we are seeking in this case, even if these materials are over five years old, we believe under the United States Constitution and our right to exculpatory evidence we are entitled to it notwithstanding limitations set out in the statute.

And I don't believe the statute was intended, passed and explicitly does not purport to go beyond the Defendant's constitutional rights to obtain exculpatory evidence. There is a long line of cases, as I indicated to the court before, starting with Davis versus Alaska and going all the way through where statutory privileges--Davis versus Alaska was the right to obtain records that were sealed pursuant to a juvenile privilege statute, so to speak. Those give way when exculpatory material are being sought. So we think we are entitled to that, notwithstanding this motion, and those are the grounds we are proceeding. Most particularly, and I don't know if the Prosecution has obtained this information, we have particular interest, in terms of Detective Purdy concerning that case where he apparently testified, according to what he told Prosecutor Coleman, at a preliminary hearing in one fashion, then was confronted with a police report that apparently was filled out by Mark Fuhrman that was different than his recollections at the preliminary hearing, and then he subsequently testified in another fashion and was--that conformed to the police report and apparently there was discipline for it. And we are trying to track whether that case is also the same case that Detective Purdy told us about when we had a conversation with him last week where he admitted that he had had a confrontation with Detective Fuhrman around a particular case where the two of them had been paired as partners and also that there were entries in the diary which he burned by his own admission, even after being informed that that diary was going to be sought and was being sought by law enforcement officials involved in this case and/or internal affairs officials, because it contained entries about his relationships with Detective Fuhrman and misconduct by Detective Fuhrman, that he intentionally destroyed that diary, he has admitted that after knowing that it was being sought. So that is material we are interested in. We think we are entitled to it notwithstanding the fact that at least one of these internal affairs investigations is over five years old and the information is over five years old. We also want to be clear that we are seeking not only the records that are stored downtown, but the ones that are stored at the division, because we think all those relate. And of course we are seeking the information with respect to the swastika incident as well.

THE COURT: All right. I will hear from the counsel for the detective, Mr. Hadden.

MR. HADDEN: Thank you, your Honor. Your Honor, Davis versus Alaska does not stand for the proposition that the Defense is entitled to the entirety of someone's file just because they claim there might be some exculpatory information in there. As this court noted last week, Brady is very much a consideration in the statutory scheme that is embodied in the pitchess statutes. The pitchess statutes have, as I noted in my brief, withstood constitutional scrutiny in this state. Particularly I am amazed at the comment by Mr. Scheck regarding what exactly it is that he is seeking. He is saying he is asking for something relating to Miss Coleman's declaration today, but their brief instead asks for citizen complaints against Detective Purdy from 1986, discussing bias, prejudice, ethnicity, et cetera, and falsification of records, neither of which have anything to do with the matter for which Mr. Simpson is on trial here. The--Mr. Scheck noted that there is a statute that precludes discovery of matters that are over five years old. He ignored the fact that 1047 of the evidence code says that the records of an officer who is not involved in the arrest are, per se, not discoverable. It is as simple as that. The legislature was very clear on it, and the court, California Supreme Court in the Santa Cruz case which I cited in my brief, described this statutory scheme as a model of clarity that the legislature said what it meant when it wrote it and the courts should apply it accordingly. The Defendant has, first of all, provided no reasonable cause for the court to even look at Detective Purdy's personnel file. Even if the court were to do so, it would be--exclude--what the Defense is I think seeking is excluded under 1045 of the evidence code and the protective provisions there and 1047 is an absolute bar in this case for the Defense to get any materials from Detective Purdy's file. Thank you, your Honor.

THE COURT: I will hear from the representative from the city of Los Angeles.

MR. HOTCHKISS: Good morning, your Honor. David Hotchkiss, assistant city attorney, on behalf of the custodian of records of the LAPD. I would only add, your Honor, a couple points to underscore the legislative scheme that we are dealing with here and that is that the legislature on behalf of the People has made certain legal conclusions that are binding upon this court, and one that is paramount is that the five-year rule seems to control under these circumstances. They have ruled, they have determined, as a matter of law, that anything that is beyond five years from the date of the event or transaction which is at issue, which is the murders of June, 1994, they are asking for events that preceded that by--by seven years, and those are excluded by operation of law. Moreover, I wanted to underscore a point that Mr. Hadden made and that is that there is absolutely nothing tying officer--excuse me--Detective Purdy to the investigation, the arrest or booking or anything involved in this particular case. However, if the court finds that there has been a prima facie showing under 1043, we are prepared this morning to deal with it in camera at the court's discretion.

THE COURT: Mr. Scheck, do you want to address the language in 1047, please.

MR. SCHECK: This is the language indicating that since he is not involved in the case as a per se bar?

THE COURT: Yes.

MR. SCHECK: All right. The response--well, he is involved in the case insofar as he was interviewed by internal affairs with respect to his connection to Detective Fuhrman in this case. And really everything that we are seeking here flows from the fact that we think that if we have these materials that were--we have reason to believe were brought up in the internal affairs investigation in this case--the reason we have reason to believe it is that we were told this by Prosecutor Coleman, and we have to assume that internal affairs took note of that and they should have questioned Detective Purdy on this. If they hadn't, they should go back and question him now, because we can't be clearer. We believe that there is a basis for pursuing the fact that Detective Purdy has information showing that Mark Fuhrman has falsified police reports, et cetera.

THE COURT: Why don't you address your remarks to the 1047.

MR. SCHECK: Well, I--I find these arguments completely nonresponsive to the point we are making. I have--the fact that he is not--

THE COURT: Well, there is a discovery scheme--

MR. SCHECK: Yes.

THE COURT: --for the specific record that you are seeking. There is a specific statutory provision that has certain--puts certain limitations on this discovery. Mr. Hadden raises 1047 as a complete and absolute bar to the information you are seeking. Do you want to address that or do you want to just ignore it?

MR. SCHECK: Oh, I'm not ignoring it. I think he misstates Davis versus Alaska and all the cases that flow from that, including recent cases concerning statutory protections. I believe the state of Pennsylvania--and there is a whole series of cases. This is fundamental constitutional law. I thoroughly agree that if you read this statute literally and say we are not entitled to get evidence that Detective Purdy has apparently given before internal affairs and find out the results of this investigation, which could bring to light exculpatory evidence concerning Mark Fuhrman's falsification of evidence and get to the bottom of what Detective Purdy really knows about Mark Fuhrman and his racial attitudes as well, but most particularly the falsification of evidence issue, if this statute is read as an absolute bar to getting this information, it is unconstitutional as applied. We have a constitutional right to exculpatory evidence. If they want to say that these materials can't be reviewed by this court for purposes of seeing whether or not it provides exculpatory evidence, based on an internal affairs investigation that apparently has been ongoing with respect to this case within the five-year limit, and concerning officers involved in this case, if that is the way the statute is being read to bar this court from exploring the exculpatory evidence, it is unconstitutional as applied. It violates due process and the right to confrontation. Those statutory privileges are not absolute. It is not a per se rule in light of the constitutional protections we have. It is qualified.

THE COURT: All right. Do you have any case authority dealing with any similar statute, this statute or any similar statute that supports that position?

(Discussion held off the record between Defense counsel.)

MR. SCHECK: I--I--I'm--there are--if the court wants more--I thought this was a black letter proposition. Davis versus Alaska is a case that I think is close to thirty years also, but it is the first in a long line of cases which establishes a fundamental constitutional principle.

THE COURT: Do you have any case?

MR. SCHECK: Any case right now dealing with pitchess that is directly on point?

THE COURT: No. Any case where the theory of Davis versus Alaska is applied to a discovery statute that is anywhere similar to this anywhere in the United States? Do you have anything you can analogize from, because there is no case in California that says this.

MR. SCHECK: Well--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: The court is familiar with Davis, the Davis case? I do not have at my fingertips right now those cases. I can represent to the court I can recall off the top of my head many--I didn't even believe that this point would be in controversy. I can recall--I know a Supreme Court precedent.

THE COURT: You've got a statutory scheme that says you can't do it. You need to have some authority to ask me to completely ignore a statutory scheme, wouldn't you say?

MR. SCHECK: Well, Davis versus Alaska is the first in a long line of cases. That case and all the other cases that I will bring to the court's attention tomorrow all start from this proposition. And Davis versus Alaska there was an effort to confront a witness on the stand--

THE COURT: I recollect.

MR. SCHECK: --and there was a statutory scheme that created a privilege that those records could not be discovered.

THE COURT: I recollect.

MR. SCHECK: There is a long line of cases in this regard. This is a--this is a very simple issue. This is a due process Brady issue.

THE COURT: The answer to my question then is no?

MR. SCHECK: No, that is not correct. The answer is I was given this brief this morning. If you want more authority for what I consider an absolutely fundamental constitutional proposition that has not been addressed by these others, all they are getting up and saying to you is something that you already knew, which is on the face of it--

THE COURT: All right. Well, let's not waste any more time with this.

MR. SCHECK: I won't waste any more of your time, your Honor. If you want more cases, I will submit them.

THE COURT: No, counsel. Counsel, you requested the order shortening time for the hearing on this and if you are not prepared, I will give you until tomorrow morning to file.

MR. SCHECK: Thank you, your Honor.

THE COURT: I will place--Mr. Hotchkiss, the custodian of records is placed on call for tomorrow within one hour.

MR. SCHECK: One further application.

THE COURT: File it close of business today.

MR. SCHECK: Just so the court should note, if it is to be the ruling that these statutory bars prevent us from getting the records that are over five years old and prevent us from getting other records, we would want to call the detective to the stand to establish at a hearing outside the presence of the jury the underlying facts.

THE COURT: Thank you.

MS. CLARK: And giving counsel until tomorrow to file, your Honor, the court is indicating then that the People will not be able to present any witnesses before the jury today?

THE COURT: No. That is not what I'm indicating. All right. Other matter we have is the scope of discovery--excuse me. The scope of People's rebuttal case. That was the issue we had set today. Also, counsel, I have conducted the 1054.7 as to Dr. DeForest's notes, Mr. Neufeld, and the issue that I raised with Mr. Hodgman, he did not understand what Dr. DeForest--I asked him about--a question about a notation in Dr. DeForest's notes and he was not able to interpret that for me, so he is--I directed him to immediately call Dr. DeForest to get an explanation of what this note means or what he is addressing. So as soon as I get that information, I will conclude the 1054.7 as to Dr. DeForest's notes. All right. Scope of Prosecution rebuttal case.

MR. COCHRAN: Your Honor, just before we get to that, would the court--I think it would be more logical, if the court pleases, for the court to entertain Dean Uelmen in the Defense's motion to strike and request remedies for denial of constitutional rights and denial of cross-examination. I would ask the court to consider hearing that first. Dean Uelmen will handle that. And then Mr. Blasier will handle the other motion with regard to scope of the rebuttal.

THE COURT: All right.

MS. CLARK: Your Honor, we just got this brief, what, fifteen minutes ago?

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

MS. CLARK: We had no advance notice they were going to file it. We have just seen it. Could we have just a chance to read it? Perhaps we would like to file a responsive brief. Miss Lewis just had the cases brought down. They are on her lap right now.

THE COURT: Uh-huh, and what is the--what is the practical import of your request?

MS. CLARK: Proceed with other motions first.

THE COURT: All right. Are you prepared on the scope issue?

MS. CLARK: Yes, and we filed briefs on that.

MS. LEWIS: I should mention we filed this morning an additional brief. We filed a brief last Friday with regard to admitting glove evidence. This morning I filed an additional brief on our behalf with regard to admitting the rarity of the Bronco fiber carpeting that the court had excluded from our case in chief.

THE COURT: All right. Mr. Blasier. Scope regarding the gloves.

MR. BLASIER: Good morning, your Honor.

THE COURT: Good morning, counsel.

MR. BLASIER: Umm, it was my understanding that the Prosecution was supposed to also file some document stating when they received various pictures, and I haven't seen anything that has that information. I did prepare a chart for my own use, but I would be happy to provide it to court and to counsel.

(Brief pause.)

THE COURT: Thank you.

MR. BLASIER: And in that chart I attempted to--I attempted to list all of the various pictures and videos and correlate them to the games that were involved. And as you can see, there are nine different football games where they have stills or videos, and I have indicated for those reports which state when they got the pictures, I put those dates on there or when they did their first interview, and as you can see, many of them are before they rested. Now, the ones that don't have any date, I don't know what the date of receipt is because they didn't put that in their reports, but as you can see for most of the games, they had pictures long before or well before they rested in time to put those on.

Let me--and I would also point out, there is an additional argument that should this evidence be allowed we would argue that much of it is cumulative and irrelevant, particularly since most of these games or most of these individual photographs involve pictures where Mr. Simpson is wearing black gloves, not brown gloves. But I don't want to jump ahead. In response to the People's brief, as I understand their argument, they are saying that because we have put on a Defense that evidence may have been fabricated or there may be some sort of skullduggery involved with the evidence that therefore opens up the glove question when we didn't put on any evidence about the glove question, and I think that argument is very easy to destroy. What that in essence would mean is that anytime you put on a Defense, well, that opens up the Prosecution, they can put on anything that they held back on just because we put on a Defense. I would cite one of their cases that they have in their brief that they cited for a different proposition. This is the Carter case and the Contreras case which says that: "Redistributions on the introduction of rebuttal evidence were created to prevent the tactic of withholding crucial evidence from presentation during the case in chief in order to take advantage of the trauma and surprise inherent in confronting the Defendant for the first time at the end of the trial." Now, this evidence was readily available to them. I believe they even took a day at the end of their case because they were considering whether to put it on or not. I have been told just this morning that they have subpoenaed--Mr. Yochelson told me was a ton of videotapes, additional videotapes that they presumably intend to use. I don't know how much a ton is, but I suspect it is probably a lot, and I don't know whether there is any new games involved, anything other than what they have already listed. And I would argue that they knew about these pictures before, they knew about each of these games. If they wanted to subpoena the videotapes from those games, they could have done it then. They have got still photos from then. Mr. Rubin was here I think two or three times. It is my understanding that he is their expert and he is going to testify that he has looked at these pictures and he sees some similar characteristics.

All of that was available before. They could have put that on in their case in chief. They chose not to. We maintain that the reason they chose not to is because they were sandbagging and holding back information that they thought they would put on at the end for dramatic effect. We have opened up nothing that allows this kind of evidence. We specifically did not put on some of our evidence because of that. And that was stated to the court. And as the court might recall, at one point when we were talking about our glove experiment you made the comment that that may open the door to these pictures. Partially because of that comment we did not put that evidence on. If they put--and they have I think 14 or 15 witnesses that they intend to call on this. If they put these people on, then we will be compelled to call back Mr. McDonnell and perhaps some other evidence that we have turned over to the Prosecution and perhaps some evidence from other glove experts and it is going to prolong the trial substantially. They could have done this before. We submit that they should not be permitted at this point to sandbag and introduce this evidence now when they had it perfectly available to them before they closed.

THE COURT: Mrs. Robertson, what is the Defendant's next exhibit?

THE CLERK: 1370.

THE COURT: All right. Mr. Blasier, I'm going to mark your chart as Defense 1370 for the purpose of this motion.

MR. BLASIER: Thank you, your Honor.

(Deft's 1370 for id = chart)

MR. BLASIER: I might indicate also I have indicated "Black" or "Brown" where you can determine what color the gloves are in the photographs or videos.

THE COURT: Okay.

MR. BLASIER: You can also see that many of these people are multiple witnesses on the same set of photographs.

THE COURT: All right. I will hear from the People.

MS. CLARK: First, your Honor, I urge the court not to rely on this chronology by Mr. Blasier. I know for a fact, just looking at it right now, that one is absolutely wrong. Ms. Guidera has the date of July 7th on her letter, but the actual thing did not arrive to us until a month later. I know because I saw when it arrived and when the envelope was opened. It wasn't until early August that we saw that, so--and she may indicate to you why it took so long to get to us, but she may have indicated on her letter she--

THE COURT: Just out of curiosity, why would that be?

MS. CLARK: Why she delayed? I don't know.

THE COURT: In other words, she is going to say that--

MS. CLARK: I don't know what she is going to say, your Honor. I know when we got it. That is all I can tell the court. I know there was a date I saw her letter. The letter had her handwritten date of July 7th on it. The postmark was not until I think July 30th or something like that, and we got it in the first week of August, so we didn't get it until a month after she had the letter dated.

THE COURT: All right.

MS. CLARK: So this is not accurate. That is no. 1. No. 2 there was no effort to sandbag. Obviously the Defense knew about these photographs. That is why they chose not to have McDonnell testify to the glove drying evidence. The fact that they indicate that withdrawing that glove drying experiment in order to avoid cross-examination with the use of these glove photographs does not mean that we don't get to use them in this case in rebuttal. That has nothing to do with anything. Apples and oranges. That just means we couldn't use them on cross-examination. At this point, your Honor, there is no sandbagging. That is clear. The Defense knew that these photographs were in existence. We also did not--we cannot be in a position to present such evidence until we have verified its authenticity. That means we've got to get the negatives, we have to interview the photographer, we have to examine the photographs and compare them to the negatives and the print that we prepared to make sure that there is nothing wrong with them, that they are as represented, they are as they have been represented to be authentic photographs of the Defendant in these gloves. After that we have to be able to show them to the expert who will tell us whether or not it indicates what we think it does. I mean, this is not something where you get a photograph and slap--you know, put the witness on the witness stand. That would be very cavalier and it would not be an appropriate practice for the Prosecution to do. We have to check this evidence out. We have to make sure it is proper before it comes before the court and before the jury. So the fact that they come into our hands at a given point means nothing in and of itself.

If the court can tell, even looking at the dates as--and they are not correct--it was very late in the case that we got these things because--that is because we put on the glove evidence that we had late in the People's case. By the time we rested, and I think it was in the first week of July, many of these photographs had not yet been received. Of those that had been received, they had not been checked out. The negatives had not been received. The fact that people sent us photographs didn't end the inquiry. We then had to recontact these people, get the negatives in, examine the negatives, have our own prints made and interview these people, and then have everything examined by an expert, by which time the People had to rest. Yes, we could have done as the Defense does and ask for a week to go and prepare and get things together and have the jury cool their heels outside, but we elected not to do that for the obvious reason, believing that if it was necessary, if the Defense went a certain way, as it did, it would be a proper rebuttal. As a matter of fact, our predictions proved to be true, more true than we could have imagined, because it was after we rested that we all found out about the McKinny tapes.

Now, as the court knows, the Defense has shifted its primary focus of its Defense based on those tapes to Mark Fuhrman. This has now become a full out attack on the credibility of Mark Fuhrman to prove that he did what we know the evidence has proven he could not do. Reality is not important to the Defense. They are going to go ahead and try and prove it anyway, get the jury to ignore the evidence and let them think that Mark Fuhrman could have planted evidence that wasn't there.

THE COURT: All right. Miss Clark, what the court is most interested in in this situation, however, is the chronology of the People becoming aware of the existence of the information, the subsequent contacting of the individuals volunteering this information, what interviewing was done, what corroboration was done, the nature of the investigation, production of the evidence and the time frames during which all of this occurred. That is what I'm most interested in.

MS. CLARK: I don't have that information, your Honor.

THE COURT: The issue being whether or not this information in the form it is to be presented at this point was available to the People prior to the People resting?

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

MS. CLARK: Well, let me ask the court something then. Why is that even a relevant inquiry at this point, because and I will allow--I ask leave of the court to allow Mr. Hodgman to address the issue because he was the one who received it. Assume for a moment that we got it all during our case in chief. First of all, the court knows that the Defense knew about it. That is not sandbagging. Second of all, more importantly, this is appropriate--if this is appropriate rebuttal, and the People submit it clearly is based on attack on credibility of Mark Fuhrman and the allegations that the Defense is making about planting of evidence, then why does it matter when we received it if it is proper rebuttal?

THE COURT: I stated my inquiry, counsel.

MS. CLARK: Okay. What the People are indicating to the court is this: That even should the court find that we received it soon enough to put it on in the People's case in chief, which we didn't, but even should the court so find, the People submit that it is clearly proper rebuttal based on the nature of the Defense case and the change that it took after the McKinny tapes were discovered and that was clearly after the People rested that that was discovered. Let me also indicate something else to the court. I have at this point interviewed these witnesses. I can tell this court that it is very brief testimony, extremely brief, as will be Richard Rubin's. I don't think that the cumulative amount of testimony, given all of these witnesses and Richard Rubin, is going to exceed three hours max. It is very brief. And I don't know how the Defense can try and drag it out to be more than that. Did you take this picture? Where did you take it? What did you see? When was it? End. That is all we are talking about here.

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

MS. CLARK: And Mr. Yochelson has a chronology and he will present that to the court.

THE COURT: All right. Thank you. Mr. Hodgman or Mr. Yochelson. Good morning.

MR. HODGMAN: Good morning, your Honor. This will be sort of a bifurcated response to the court's inquiry about chronology. I have information with regard to the still photos. Mr. Yochelson has information with regard to video clips or videotapes that were obtained.

THE COURT: All right. Mr. Hodgman.

MR. HODGMAN: And your Honor, in response to the court's inquiry of last Friday, over the weekend we tried to put together a chronology so that the court would have some understanding of when these photos were received. With regard to photographer James Chegia, C-H-E-G-I-A, we received a photo on or about June 20th, 1995. On that date one of our investigators obtained a negative and some prints were made. Color copies were given to the Defense on September 1st.

THE COURT: All right. Negatives were obtained on June 20th?

MR. HODGMAN: No photo, actually; just a negative. On June 22nd, 1995, a photographer named Bill Renken, R-E-N-K-E-N, sent us a single enlarged photo.

THE COURT: That was, I'm sorry, what date?

MR. HODGMAN: June 22, 1995. Subsequent to the receipt of that photo there were a number of phone calls involving Mr. Yochelson and Mr. Renken in an effort to attempt to obtain the negative, and in the course of those conversations, and as I will relate in just a moment, and in July and August, additional photographs were obtained from Mr. Renken. On June 22nd, or shortly thereafter, we had obtained a single two-by-three foot enlargement which was shown to the Defense.

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

MR. HODGMAN: And so the court is aware, we did not receive negatives from Mr. Renken.

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

MR. HODGMAN: The first time the People received negatives from Mr. Renken was this morning.

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

MR. HODGMAN: And to be even more specific about it, Mr. Renken retains the negatives in his possession right now. The People do not have possession of them. A photographer named Rob Seib, S-E-I-B, sent us a photograph on June 27, 1995. We received it some time after that.

THE COURT: Excuse me just a second. Mrs. Robertson.

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

THE COURT: All right. Go ahead.

MR. HODGMAN: And with regard to that, Mr. Seib sent us the photograph from a location on the east coast. On June 28th, 1995, Mr. Renken sent us some additional photographs. These photographs were of the same football game dated January the 6th, 1991.

On June 29, 1995, or thereabouts, we received a photograph--actually a number of photographs from a photographer named Kevin Schott. Last name, S-C-H-O-T-T. We received negatives from Mr. Schott on September 10, 1995, yesterday. Previously on September 1st of this year color copies of what we had were turned over to the Defense. On July 1st, 1995, we received a photograph from Michael Romano. A color copy of this photo was turned over to the Defense on September 1st, 1995. On September 6th negatives were made available to the Defense so that they could obtain a print to whatever size enlargement they wished. Then we have a photograph from Mark Krueger, K-R-U-E-G-E-R. This was received sometime prior to July the 3rd, 1995. Our records don't indicate a precise date that we received this photograph. We can infer, however, that it was received prior to July 3rd, 1995.

THE COURT: And we know that because Mr. Krueger was interviewed July 3rd, correct?

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

MR. HODGMAN: He was interviewed on September 1st, your Honor, and on that date he stated that he still had the negative. A color copy of what we had was provided to the Defense on September 1st, 1995. On July the 3rd, 1995, Deputy District Attorney Alan Yochelson sent a letter to Mr. Richard Rubin containing some copies or prints of what we had available regarding the photos to see whether Mr. Rubin could shed any light with regard to these gloves depicted in the photos. By letter on July 6, 1995, Mr. Rubin made some preliminary observations with regard to the gloves we had sent him, the glove photos. As far as our date of the receipt of the letter, it was sent regular mail and Mr. Rubin's letter is dated July the 6th. The date we received it we can only infer was after July 6th. Photos continued to come in after the date of July the 6th. On July 27, 1995, we received a photograph from Karen Brown. On September 1st, 1995, color copies were turned over to the Defense and that photo was re-produced from a negative on September 8th and turned over to the Defense. On August 11, 1995, Bill Renken sent two more photos of the same game of which we had received photographs earlier. These were two eight-by-twelve photos. As of August 11th we still did not have negatives from Mr. Renken. On August 17, 1995, Mr. Renken sent us an additional photo of the same game. We still do not have negatives of what Mr. Renken had sent us. We did, in the latter part of August, make an effort to obtain a CD copy, that is to have the photos that he had sent us placed on a CD format so that that CD could be shared with the Defense. On August 26, 1995, Deborah Guidera, G-U-I-D-E-R-A, also provided us with a photograph. It had been mailed sometime prior to August 26, 1995. She indicated that she thought she had mailed it to us sometime in July. The People received the negatives regarding this photograph on September 1st, 1995. Color copies and copies made from the negative were available to the Defense on September 6th. And lastly, your Honor, we have a photographer named Stewart West and he has a photograph of a December 25, 1993, game and we simply do not have a record of when we received that photo from Mr. West.

We do know that on September 1st, 1995, color copies were turned over to the Defense. On September 6th negatives were made available to the Defense for copying. And then as well--actually, as the court may not recall, on August the 29th there was a telephonic interview with Mr. Rubin in Las Vegas. During this interview Mr. Rubin made further conclusions regarding various photos and video clips. There became a need to have Mr. Rubin present in Los Angeles in order to get a more definitive opinion. And on or about August 31, if I recall correctly, Mr. Rubin came to Los Angeles and viewed photographs, as well video clips. And notes of that meeting were provided to the Defense.

THE COURT: All right. You have indicated to the court that Mr. Yochelson sent a letter to Mr. Rubin who I take it is going to be your sole expert as to the identity of these gloves; is that correct?

MR. HODGMAN: That's correct.

THE COURT: On July 3rd?

MR. HODGMAN: Correct.

THE COURT: That Mr. Rubin sent a response backdated July the 6th; however, sent United States Mail U.S. Postal Service, so--and he is back east, if I recollect, so we can assume two or three days mail time.

MR. HODGMAN: Okay. And to be entirely accurate, Mr. Yochelson, the letter was fed-ex'd, so I think we can presume that the letter was received July the 7th or thereabouts. And do you have a copy of that letter?

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

MR. HODGMAN: I don't have that letter with me, your Honor, but we do have it.

THE COURT: All right. Let's assume that this was a report from Mr. Rubin regarding his examination of these photos that Mr. Yochelson sent him.

MR. HODGMAN: Well, it was a preliminary report in the sense we wanted to get some idea of what we had, and Mr. Rubin responded that, you know, this is--this is with regard to certain style characteristics. And further, through the course of further investigation, we realized we had to refine even more what time characteristics we were looking for and what--and we made investigative efforts to see if photographs could be enhanced to further indicate those style characteristics.

THE COURT: All right.

MR. HODGMAN: As the court is aware--

THE COURT: What was your next contact with Mr. Rubin after his letter of July 6th?

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

MR. HODGMAN: Your Honor, the next contact I am aware of was on or about August 29 when Mr. Rubin was in Las Vegas, and we have--we had an interview done by telephone in which Mr. Yochelson and an investigator participated. It was realized that we needed to have Mr. Rubin here to be more definitive and arrangements were made to fly him from Las Vegas to Los Angeles.

THE COURT: Did he come then and sit down and actually sit down and look and all of these photographs and the videotape?

MR. HODGMAN: Yes.

THE COURT: Did he give a report or was he interviewed at that time?

MR. HODGMAN: He was interviewed, a report was made, an investigator from our office was present, as well as various attorney personnel.

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

THE COURT: All right. What is the conclusion that Mr. Rubin has come to that you wish to offer?

MR. HODGMAN: Well, Mr. Rubin is prepared to testify with regard to various still photographs and video clips that there are style characteristics present in the gloves that he observes depicted in these various stills and video clips which are identical to the Aris Light style of glove which gloves--which comprise the crime scene gloves.

THE COURT: Consistent with, not definitive?

MR. HODGMAN: Well, his opinion is a little stronger than that, your Honor. There--he is a better expert than I with regard to the gloves; however, there are a number of unique style characteristics which apply to these particular--this particular style of glove. These unique style characteristics are present in various of the still photos and video clips which we intend to present.

THE COURT: All right. Mr. Yochelson, tell me about the chronology of the video clips.

MR. DARDEN: Before Mr. Yochelson addresses the court, may I interject this? I spoke to Mr. Rubin around 7:30 or eight o'clock last night. We were looking at photographs and some of the videotape and there appears to be some type of defect in one of the gloves the Defendant was wearing during one of the football games, and so Mr. Rubin asked that he be allowed to look at the crime scene gloves again to see if that defect is also on the crime scene gloves, just to keep you up-to-date with what was happening.

THE COURT: All right. I'm sorry, let me just ask Mr. Hodgman one last question. The first photograph that you had available was from Miss Guidera and that was on June 20th, correct?

MR. HODGMAN: Yes, your Honor.

THE COURT: All right. Mr. Yochelson. Tell me the chronology of the videotapes.

MR. YOCHELSON: Yes, your Honor. Your Honor, following the arrival of some of the still photographs, we began investigating the possibility that there might be videotaped evidence of some of these games wherein the Defendant was wearing these types of gloves.

THE COURT: When did you start this investigation?

MR. YOCHELSON: This was approximately the 20th of June, 1995, when we received the telephone call from some personnel at a local network. They have provided us with some videotape which actually we do not intend to offer in this case. However, on June 23, 1995, we issued six subpoenas, three of which are relevant to this inquiry. These are for three games. One is--was dated January 6, 1991, between Cincinnati Bengals and the Houston Oilers. The second subpoena issued June 23, 1995, was for videotape of a game between the Buffalo Bills and the Kansas City Chiefs dated or played on January 5th, 1992. And the third is a game played on January 23, 1994, also between Buffalo and Kansas City. Those subpoenas were issued on the 23rd. Their return dates were for the 26th of June, 1995, and we received the actual videotape from NBC on or about the 28th of June, 1995. Based on the evidence of the still photograph which Mr. Hodgman referred to from Miss Guidera, Debra Guidera, we have also issued a subpoena for a game played in 1993 between the Indianapolis Colts and the New York Giants. That subpoena is returnable today and I have not yet heard from NBC. I would also add, parenthetically, that NBC wishes to be heard on some of these issues and Miss Egerton from NBC will be here shortly.

THE COURT: All right. That is the record you wish to rest on?

MR. YOCHELSON: I would also indicate that the copies of a videotape that we intend to offer into evidence was provided to the Defense on or about September 1, 1995.

THE COURT: All right. Which of these videotapes do you intend on offering?

MR. YOCHELSON: The three games that I have just referred to.

THE COURT: January 6th, `91, January 5th, `92, January 23rd, `94?

MR. YOCHELSON: Yes. And there is a possibility of some more videotape if it arrives. It has not yet arrived.

THE COURT: All right. So just so we are clear, you have had these videotapes since June of--June 26th, correct?

MR. YOCHELSON: June 28th, I believe.

THE COURT: All right.

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

MR. BLASIER: Very interesting, your Honor. I mean--

MR. YOCHELSON: Excuse me, your Honor, and excuse me, Mr. Blasier. However, Richard Rubin did not get to see these videotapes until much later.

THE COURT: Why not?

MR. YOCHELSON: Because we had to arrange to send this material to him after the 28th of June and it is my recollection that he did not see these videotapes--it is my belief he did not see these videotapes until after the People's case ended.

THE COURT: When did he actually see these materials?

MR. YOCHELSON: He saw the actual three quarter-inch videotape when we had him here in Los Angeles last week at the end of--at the end of August, 1995, in the meeting that Mr. Hodgman referred to.

THE COURT: All right. Mr. Blasier.

MR. BLASIER: It seems that everything on the list of things they got before they rested, with the possible exception of Guidera and their letter to the court, says that the letter was dated July 7. I don't know what day they got it, but I can tell you that the Guidera picture Mr. Rubin has never said, at least not in the interviews that I have been provided, that he can identify the glove in that particular picture. The primary pictures that he has said in his interview that he thinks looks like Aris Lights are from the Renken pictures and that the Bengals game of January 6th, 1991, when they received the first picture on June 22nd, three weeks before they rested. Mr. Renken is a professional photographer. He has got a big stamp on the back and they know exactly where he was. They knew about that. It is no secret that Mr. Simpson is a commentator on television. They know about that. They knew about these pictures. They could have gotten the videotapes. They did get the videotapes but chose not to present them then, and the reason they chose not to present them then is because they wanted to hold something back for a big dramatic issue. I think the dates you have got demonstrates exactly what I'm arguing. They had this. They could have developed this. The fact that they interviewed people is not our problem, it is not the court's problem. They should have the people to do this investigation and it is not fair to say, well, we can't get to this stuff, we will get to it, later and put it on in rebuttal. And I submit that they should not be allowed to present any of this evidence now at this time.

MS. CLARK: Your Honor, let me indicate to the court that Mr. Rubin saw the Guidera photograph on August 28th.

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

MR. BLASIER: Oh, incidentally, I have never seen these Rubin letters. I didn't know that they sent stuff to him before they rested and they never got it back. I'm not saying we didn't get them, but I have never seen them and I would like to see them.

THE COURT: Do you want to clarify that issue regarding Mr. Rubin's letters dated June 6th.

MR. YOCHELSON: July 6th.

THE COURT: I'm sorry, July 6th.

MS. CLARK: I'm sorry, I didn't--Mr. Yochelson was speaking to me and I didn't hear what Mr. Blasier said.

THE COURT: Has that letter from Mr. Rubin dated July 6th been turned over?

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

(Discussion held off the record between Defense counsel.)

MS. CLARK: As I understand it, your Honor, the letter that we are speaking of was not turned over to the Defense because it was not a definitive letter. All that happened was preliminarily a finding was made. He saw a few photographs and he said looks like there may be a style characteristic here. I have got to see more, I have got to see it more clearly. And so we endeavored at that point, and by this time it must have been at least July 7th, to start getting the things to him in his hand and get him out here and have further contact. There was no final report or finding made by him until--

THE COURT: Don't you think that is something that the Defense is entitled to know, that your expert witness looked at these items and wasn't able to give a definitive opinion?

MS. CLARK: If we decided--well, yes, at the point that we want to put him on, that is true; however, don't forget, your Honor, that we had already had the colloquy during MacDonnell's testimony about glove photographs and we went to side bar and I informed counsel that we had a preliminary indication at that time that we were--that they may have been the same glove. That is what I believe I indicated to you the finding of Richard Rubin at that time. I don't know--that was in August, wasn't it?

THE COURT: My recollection is that your--your impression of Mr. Rubin's opinion was a little more definitive than that.

MR. BLASIER: These are the gloves. That is what she said.

MR. COCHRAN: These are the gloves.

MS. CLARK: But that was much later. That was way after July 6th and there was a lot going on.

THE COURT: My question is don't you think the Defense was entitled to a report or a letter from Mr. Rubin indicating that based upon his analysis of the materials that were submitted to him that he was not able to come up with a definitive answer? Don't you think they are entitled to that?

MS. CLARK: Yes, I certainly do. If we thought that we were going to present it in our case in chief they were entitled to it. We didn't even get it until after we rested, so I don't understand.

MR. BLASIER: Well--

THE COURT: The question is now you propose to put on this evidence, yet you still haven't turned this over; is that correct?

MS. CLARK: The preliminary letter, no, we have not. The actual record and finding of Richard Rubin, yes, we have, but we don't have an obligation to turn over that letter which is a preliminary finding until we know that we are going to put it in our in our rebuttal case. We didn't have the letter until after we rested, so we obviously couldn't put it in in our case in chief. We didn't know where the Defense case was going to go until after we got it, and when we did get it, your Honor, and we started that, I indicate that we wanted to put it on in rebuttal. I have already indicated the legal argument in response to rebuttal and why it is relevant in rebuttal, but we gave them the final report by Richard Rubin.

THE COURT: And when was that turned over?

MR. BLASIER: Last--I think September 1st.

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

MS. CLARK: Right.

MR. BLASIER: We called our--

MS. CLARK: August 31st we had our final interview with Richard Rubin in which he reviewed all the photographs, reviewed all the videos and gave us his final opinion on the gloves. We turned it over on September 1st.

MR. BLASIER: Now, as I understand it, I think we called our first witness on July 10th. Now, is Miss Clark saying that on July 7th--the 20th--

MR. COCHRAN: The 12th.

MR. BLASIER: The 12th, that when she got this letter on the 7th they are already planning their rebuttal case? I think that is very telling.

MS. CLARK: No, your Honor. Obviously--

MR. BLASIER: That is what she said.

MS. CLARK: We didn't have it in time for our case in chief and we had to consider whether it was something that we could put on in rebuttal. We didn't have it in time to put on, so how can we consider putting it on in our case of chief? I don't get it. How can we say we are going to map this out and put it in?

THE COURT: All right.

MR. BLASIER: Incidentally, Mr. Rubin was out here testifying on the 25th. They had a number of these pictures then. We are not entitled to their attorney's notes. I don't know how many conversations they had that weren't in writing about these gloves and what he can tell and what he can't tell, but there is a lot more going on before they rested than we are being told, I believe, and this is just unfair.

MS. CLARK: You know something, I will tell you what is unfair, your Honor. It is unfair to be attacked unfairly with no indication that anything underhanded occurred. The court has been given a full chronology of what happened. We had the letter from Richard Rubin that has a date on it from the east coast and that is the date we rested. I mean, it should be very clear to everyone what happened here. Now we are suppose to have prescience? We are supposed to know what Mr. Rubin is going to say when he gives his final opinion when all we have in our hand at the time we rest is a preliminary finding? He hadn't even seen all the photographs we got. He hadn't even seen the videotapes at all.

MR. BLASIER: The point is they had them and they had access to Mr. Rubin.

MS. CLARK: We cannot be everywhere at the same time, your Honor, and Mr. Rubin doesn't live here; he is on the east coast.

THE COURT: Refresh my recollection as to where he lives now.

MS. CLARK: I'm sorry?

MR. BLASIER: New Jersey, I think.

THE COURT: All right. Well, another interesting issue.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: Your Honor, I believe Miss Clark just said this she didn't know until late in August of this final determination, but that was long after she made representations at side bar that they could now prove these are the gloves.

THE COURT: All right. Thank you, counsel.

MS. CLARK: The representation at side bar--

THE COURT: Counsel, counsel, I have heard the argument. I'm preparing to rule. Thank you. All right. The order in which evidence is presented at trial is governed by penal code section 1093, and specifically that code section says that: "The District Attorney shall offer evidence in support of the charge." In subsection (D) 1093 reads that: "The parties may then respectively offer rebutting testimony only, unless the court for good cause, for good reason in furtherance of justice, permits them to offer evidence upon their original case." And I think that the case law in dealing with whether or not the court can allow the Prosecution to reopen their case indicates that the court has wide discretion; however, there are several cases that deal with an abuse of that discretion. This is a situation where information regarding the Defendant's possession and wearing of these gloves was available to the Prosecution at a period in time prior to their resting their case. The Prosecution rested their case on July the 6th, 1995, and the court believes, from the chronology presented by the Prosecution, that the first photographs regarding Mr. Simpson wearing gloves that may or may not be these Aris Light gloves, was received by them on June the 20th. The court is also persuaded by the representations of counsel that the information from Mr. Rubin was reasonably not presented to them prior to the resting on July the 6th. The photographs submitted to the Prosecution by various persons prior to their resting their case are not usable, are not meaningful without expert testimony and analysis; that expert testimony and analysis coming from Mr. Rubin. The court therefore finds that since Mr. Rubin did not submit his findings in either preliminary or final form prior to the People's resting their case, that this information was not available to the Prosecution during their case in chief. And I will exercise my discretion and allow a limited number of these photographs to be offered. I agree with Mr. Blasier's observations that it appears that some of these may be cumulative and I'm going to ask that the Prosecution present their photos to the court and let's see what we have, because I am not interested in listening to twenty people testify about taking photographs. All right. That is the ruling on that, preliminarily. All right. Let's go to the other argument--I'm sorry.

MR. BLASIER: We would also like to see Mr. Rubin's letters right away.

THE COURT: Absolutely. Forthwith. All right. Let's go to the issue of--Miss Clark, have you had the opportunity to peruse the motion filed by the Defense--or Miss Lewis, motion to strike the testimony of Detective Fuhrman or alternative remedies?

MS. CLARK: Your Honor, I've been--I've been before the court, so obviously I haven't been able to read it. Miss Lewis has been doing some reading. The cases have been pulled and we are going to need a chance to confer, unless the court can give us a preliminary finding or narrow the focus.

THE COURT: Well, this was just served upon me as well.

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

THE COURT: All right. Let's take a 15-minute recess. Why don't you look at it, confer amongst yourselves. I would like to pursue this motion today.

MR. BLASIER: Your Honor, we also have other scope arguments on parts of the rebuttal.

THE COURT: Well, let's deal with the gloves first.

MR. BLASIER: Well--

THE COURT: I want all the glove material down here now.

MR. HODGMAN: Your Honor, prepared to go forward with the Mr. DeForest inquiry at your pleasure.

THE COURT: Yes.

MR. SCHECK: Your Honor, also I wanted to bring to the court's attention that we have an extremely important 1054.7 that I think will affect scheduling that will take ten minutes and we urge upon you an opportunity to present it.

THE COURT: All right. Well, as I indicated to you previously, I was doing the 1054.7's at 8:30.

MR. SCHECK: That was for the Prosecution.

THE COURT: That is when I was set up and doing them.

MR. SCHECK: Your Honor, I was here. Not--8:45. I went to get Miss--

THE COURT: All right. Well, let's take these things one thing at a time because I'm going to have to read this right now.

MR. SCHECK: I understand. I am just bringing it to your attention.

(Recess.)

(Pages 44890 through 44900, volume 220B, transcribed and sealed under separate cover.)

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

MR. BLASIER: Your Honor, I--

MS. LEWIS: Your Honor, I'm sorry, Mr. Darden and Miss Clark aren't here. Mr. Darden is on his way back from the restroom and Miss Clark on is her way. I would beg the court's indulgence, since I don't know what Mr. Blasier is about to say, and I probably don't have any knowledge about what he is going to address.

MR. BLASIER: I'm going to submit the letter to the court and you may have a chance to look at it and when they come back--

THE COURT: All right. Let me see the letter.

(Brief pause.)

THE COURT: Thank you.

(Brief pause.)

THE COURT: All right. We have been rejoined by Mr. Darden. And Mr. Darden, for your information, the Defense has offered to the court the letter of July 6th from Mr. Rubin. Mr. Blasier.

MR. BLASIER: Your Honor, this is not what we were told it was. He says in this letter, which is in the form of a report: "On all eight photos none of the detail that can be seen indicates that the gloves could be a style other than 70263, which is the Aris Lights." We just confirmed that with Mr. Rubin that he--it is his opinion, which he expressed back on July 6th, that these are the same kind of gloves. This is not a preliminary indication. This is not an indication--well, I'm not so sure. He says in here that these are the gloves and this is what they were told on July 6th. Now, I still haven't gotten the letter that they sent to him asking him for some findings, but I think that this has been totally misrepresented to the court. This is a final report and they had it before they rested.

THE COURT: All right. Mr. Darden, do you want to make any response to that?

MR. DARDEN: Yes, your Honor. This morning of course the court heard our offer of proof and Mr. Hodgman's and Mr. Yochelson's representations to the court. And after this morning's proceeding I saw Mr. Rubin and I discussed the details of that--of those representations by Mr. Hodgman and Mr. Yochelson. And Mr. Rubin indicated that our representations to the court earlier were correct. Just now I asked Mr. Rubin what he meant by that particular sentence and by this letter in general and he indicated to me just now that he needed to see more information, that he was not stating conclusively that these were 70263's. He needed more information. He needed other photos.

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

MR. DARDEN: And--

MR. BLASIER: He just told us the opposite.

MR. DARDEN: Anyway, and that this is in fact a preliminary on his part. And once again I would point out that the date of the letter is July 6th. Our representations to the court this morning are consistent with what is contained in the letter and Mr. Rubin confirms that. I should indicate as well that after we received the letter we went about blowing up photos, enhancing photos, attempting to identify those characteristics that are--that are unique to this particular glove so that Mr. Rubin could come to some conclusive opinion at some point.

MR. BLASIER: He says in here: "All other photos appear to be brown, crime scene gloves' color. Photo no. 4 from Robert Lee is the glove." This is not equivocal, your Honor. This is him saying I saw the pictures; that is the glove.

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

MR. DARDEN: We rested. He sent a letter from I guess New Jersey. Obviously we didn't have this letter. The court will note that the letter is not faxed, the letter was mailed, so obviously we rested with not having this particular information.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Rubin, what manner of communication did you use to send this letter to Mr. Yochelson?

MR. RUBIN: Federal Express.

THE COURT: All right. Was it on the day that the letter was written?

MR. RUBIN: I believe it was.

THE COURT: Mr. Blasier.

MR. BLASIER: I think it is obvious from the letter what has happened here, and I think--I think this evidence should be excluded based on this report.

THE COURT: All right. The court notes the first paragraph at page 2 of Mr. Rubin's letter where the text is as follows: "The key to an accurate identification of the glove would be fastest from no. 3, John Cassidy photo, because the fine edge on the fingers shows the Brossier stitching and three points on the back are flat. "Do you have a clear original?" Question mark.

"No. 4 from Robert Lee is clear enough but black," indicating a desire still to have further photographs. Although this does have a conclusion in it, it was sent after the Prosecution rested, so the ruling stands. All right. Let's go to the issue of Defense motion to strike Detective Fuhrman's testimony.

MR. BLASIER: Your Honor, could I say one thing before we go on? I notice Mr. Rubin is here. I am not prepared to cross-examine him. I can cross-examine the photographers, I have no problems with that, but I am not ready for him.

THE COURT: I understand. Thank you. All right. Mr. Uelmen.

MR. UELMEN: Well, your Honor, as in so many other points in this trial, we are back to square one on an issue that we thought we had resolved, but we want to make it very clear that square one for us is the constitutional right to confront and cross-examine the witnesses against the Defendant. And that right is so fundamental that no trial can be called a fair trial where that right has been denied. And the Defendant will not waive that right by resting his case without some remedy that avoids an unfavorable inference from his unexplained failure to recall Detective Mark Fuhrman in the presence of the jury. Saying nothing and doing nothing actually prejudices the Defendant because the jury is aware that he was subject to recall. In light of the evidence that has been presented, the failure to recall him or explain why we were not doing so can only result in an inference unfavorable to the Defendant.

THE COURT: If you recollect that my ruling indicated that I felt that it was not appropriate, that some instruction was appropriate because Mr. Fuhrman had not been subjected to cross-examination with regards to Singer, Hodge and McKinny.

MR. UELMEN: Yes, your Honor. We would add Rokahr to that list. We believe that the contradiction between Mr. Rokahr's testimony that that photograph was taken at night, and the testimony of Detective Fuhrman that the photograph was taken after he returned from the Rockingham premises at 7:00 in the morning, is a very significant contradiction in terms of the access to the evidence that Detective Fuhrman had before he went to the Rockingham premises. What we have proposed, your Honor, are three alternatives that the court has not previously considered, and we have renewed our request for a fourth alternative and we believe that any one of these four alternatives would be a satisfactory resolution of the problem, but no less than one of these is absolutely necessary. The first alternative we propose is moving to strike the portion of the testimony of Detective Fuhrman that dealt with the discovery of the Rockingham glove and to strike the glove itself from evidence. As we noted in our moving papers, we have not previously moved to strike any of Detective Fuhrman's testimony because we intend to rely on some of that testimony and we have a right to rely on it to put in evidence some very important issues from the Defense perspective. That is, we believe that as to some of the evidence provided by Detective Fuhrman, it is favorable to the Defense or it contradicts other witnesses for the Prosecution and can be used to challenge their credibility. It is a question of either Fuhrman is lying or one of these other witnesses are lying, and we believe we can argue, based on Detective Fuhrman's testimony, that perhaps other witnesses have perjured themselves in this trial as well. I have delineated in the moving papers the areas in which we believe we are entitled to rely on testimony of Detective Fuhrman. For example, he testified that he informed the other detectives, most notably Detective Phillips, that he had been to Rockingham on a family dispute on a prior occasion, and I believe that is inconsistent with Detective Phillips' testimony. He testified that when he went to the Bronco in the early morning hours of June 13th, not only did he see the speck above the door handle, but he saw the three to four small lines that he thought resembled blood on the doorsill and he also testified that he told criminalist Fung about that second stain. Both Fung and Larry Ragle testified that those three or four lines were only visible when the door was opened, so we believe, based on that testimony by Detective Fuhrman, we can challenge the contention of the Prosecution that no entry was made to the Bronco at the scene at Rockingham before it was hauled off to the--to the print shed. And that of course is a vital point to the Defense in terms of explaining the presence of blood in the Bronco. And also Mr. Fung denied that Detective Fuhrman had told him about that stain at the Rockingham scene, so there is a contradiction between what Fuhrman said and what Fung said. Detective Fuhrman is also the only source of evidence that Kato Kaelin passed a nystagmus test in the early morning hours of June 13th. He is the only source of testimony that the plastic bag in the back of the Bronco is standard equipment in a Bronco, that it is a bag for the spare tire. He also testified to observing a partial fingerprint on the knob of the back gate at Bundy. He is the only source of testimony that the premises next door to Mr. Simpson's Rockingham residence were inspected by him that morning and he found nothing out of place, which is important evidence in terms of any theory that the Prosecution might offer that entry was made to those premises and somebody climbed over a fence and dropped a glove. We also want to rely on the preliminary hearing testimony of Detective Fuhrman which was elicited from him on his examination at trial that he had referred to the gloves at Bundy as "Them" and that he had referred to seeing blood in the Bronco.

THE COURT: All right. Mr. Uelmen, then have you, given the surgical manner in which you propose to strike Detective Fuhrman's testimony, have you--do you have a proposal concerning where in the transcript, what pages and what lines and where to where, a specific proposal?

MR. UELMEN: Well, frankly, the jury--the jury would be very confused by a delineation of line by line in the transcript in terms of--

THE COURT: No, that is not what I'm asking for as far as the jury is concerned. I mean, you are asking me to strike specific testimony. You want some, but you want some left in and you want some taken out, so I need to know specifically what is it that you are asking me to strike?

MR. UELMEN: Well, what we are asking be stricken is the only portion of Detective Fuhrman's testimony where the denial of cross-examination has seriously prejudiced us the most, and that is with respect to the discovery of the glove. We would like stricken all of his testimony with respect to his discovery of the glove behind the residence at Rockingham and the glove itself, that they be stricken from evidence and the jury just simply be told disregard that, don't rely on Detective Fuhrman's testimony with respect to finding that glove and ignore the glove in your--in your deliberations. We have been prejudiced in terms of cross-examining on whatever motives he might have had to plant that evidence. We have been precluded from confronting him with the testimony of the witnesses McKinny, Hodge, Singer and Rokahr with respect to motives and opportunity in that respect. And we believe the appropriate remedy is simply tell the jury disregard it, forget it happened. Our second alternative is closely related to the first, because it really points out the unfairness and the injustice of the Prosecution putting a witness on the stand and getting the benefit of his direct testimony and relying on that testimony to prove their case without taking the lumps that come along with cross-examination, because of the invocation of the 5th amendment, and the Prosecution really has it within their control to eliminate that obstacle to cross-examination by the grant of immunity to the witness. What we have proposed is that the court actually has judicial authority to grant use immunity to Detective Fuhrman. Under these circumstances to say to Detective Fuhrman none of the testimony you present on cross-examination by the Defense at this point will be used against you in a future Prosecution, and thereby make his testimony on cross-examination available to the Defense. And we believe the Prosecution should be estopped from objecting to that kind of a grant of use immunity because of their past reliance and their future intended reliance on Detective Fuhrman's testimony. I think the strongest authority for that proposition comes from a case in which the Court of Appeals actually said that the Prosecution could be compelled to grant statutory immunity under section 1324 of the penal code, under circumstances very similar to what we are presented with here, and that case has not previously been called to the court's attention, it was not even called to the attention of Court of Appeals in the petition for a writ that was filed by the People last week and, we have ended up with a very curious situation where we have a controlling precedent from the Second District Court of Appeals that apparently was not considered by the court in issuing its alternative writ last week, nor has it yet been considered by this court, and that is the case of People versus Garner where a very analogous situation is presented of a witness who testified at a preliminary hearing and then came in at trial and said I'm worried about Prosecution for perjury for my preliminary hearing testimony, therefore, I'm going to take the 5th amendment. And the Prosecution then offered in evidence the preliminary hearing testimony on the theory that the witness was now unavailable so they could use the prior testimony at the preliminary hearing.

And what the Court of Appeals said about that is highly analogous to the situation that this court faces. In fact, the situations are virtually identical. The court said: "Obviously the People could not in good conscience have urged that the very testimony on which they asked to have the appellant imprisoned for the balance of his life was so untrustworthy that they wished to retain the right to prosecute their declarant for perjury. They already knew, of course, that Phillips claimed to have testified falsely. Under such circumstances one might have hoped the Prosecution would have been as desirous as the Defense to see the truth prevail, whatever that might be." And that points out the irony of the Prosecution's position if they are actually going to oppose the grant of use immunity to Detective Fuhrman, because the use immunity issue only comes up in the context in which he can legitimately claim the 5th amendment, if at all, and that is because I face the risk of Prosecution for perjury in the testimony I presented in this case to this jury. And for the Prosecution to come into this court and say we want to rely on that perjured testimony, we want to use it to convict this Defendant and send him to prison for the rest of their life, and we don't want to immunize this witness from subsequently being prosecuted by us for perjury. Well, you can't have it both ways. And that's essentially the ruling that the court handed down in garner. They said: "Less there be any confusion concerning the extremely limited nature of the remedy we here recommend, we emphasize that a need therefore will arise if, and only if, the witness' invocation of the privilege is based upon a claimed fear of perjury Prosecution." That is no. 1. And no. 2:

"It is the People who wish to use this witness' earlier and assertedly false testimony as evidence against the accused. While the District Attorney may not be required to seek a grant of immunity even in such an instance, his request to make affirmative use of that testimony may be conditioned upon his willingness to expose the witness to full and complete cross-examination." So what the court is saying is, okay, it is your choice. If you are not going to accept immunity, then you have to accept striking the testimony. You can't have it both ways. And that is precisely the situation we have here. Both of those conditions are met. The invocation of the privilege is apparently wasted on a fear of Prosecution of perjury and the People intend to continue to rely on this perjured testimony in making out their case in chief and arguing that the jury should consider the evidence of Detective Fuhrman finding this glove and the evidence of the glove itself. The third alternative that we pose would involve the court making a much more specific determination of the availability of the privilege against self-incrimination by the witness Mark Fuhrman. What Detective Fuhrman did in his brief appearance on the stand is to sweepingly invoke the privilege as to all future questions, and we believe that may be an inappropriate invocation of the 5th amendment, if his only concern is potential Prosecution for--for perjury. And in fact even with respect to potential Prosecution for perjury, if in fact he assumes the risk by getting on the witness stand and in direct testimony willfully and knowingly presented perjured testimony, we believe that itself may have been a waiver of the--of the 5th amendment privilege. Now, we recognize your Honor's prior determination that the invocation of the--of the 5th amendment and the determination of the appropriateness of the invocation of the 5th amendment should be done out of the presence of the jury, but that can be accomplished in a 402 hearing at which Detective Fuhrman is subjected to question-by-question cross-examination and the court makes a ruling in the context of that examination whether he can appropriately invoke the 5th amendment privilege. But bear in mind that the burden is on him. Under section 404 of the evidence code it is the witness who invokes the 5th amendment privilege who bears the burden of showing that his invocation of that privilege is appropriate. Now, once the court has made such a determination, we can then proceed to cross-examination of Detective Fuhrman in the presence of the jury with respect to the issues where the court has determined he has waived his 5th amendment privilege and he may not rely upon the privilege against self-incrimination in declining to testify. That, however, does not eliminate the need for some sort of instruction to the jury, because if we cross-examine on very limited areas where he has not appropriately invoked his 5th amendment and are precluded from cross-examining in those areas where the court has determined his invocation of the privilege is appropriate, we are left with the same problem. The jury will infer from our failure to cross-examine in certain areas that we are conceding the credibility of his testimony when in fact the reason we are precluded from asking in those areas is because of his facing a realistic risk of a perjury Prosecution for that testimony, so just the opposite inference should be drawn. And the--the garner court addressed that problem. In fact, the garner court very specifically said under these circumstances the jury should know that he has invoked the 5th and they should invoke an adverse interest against him because the only basis for his invocation of the privilege is the risk of a perjury Prosecution. Recognizing that your court--the court has already ruled on that--on that issue, we want to emphasize we are not waiving our objection to that ruling, but we are saying under those circumstances the most appropriate instruction to give the jury now would be the 2.25 instruction of Caljic. And it is important to note that the Caljic use note itself indicates that this instruction, as slightly modified, can be given where the invocation of the 5th amendment is taken out of the presence of the jury. And what we have proposed is a slight modification of 2.25. So if we are permitted to cross-examine Detective Fuhrman in the areas where the court has indicated he may not invoke the privilege, the court should instruct the jury that with respect to specific questions his invocation of the privilege has been upheld and they should not infer anything from that invocation of the privilege one way or the other. The final alternative that we propose is one that we have proposed before, that in lieu of cross-examination we be allowed to present additional excerpts from the McKinny tapes and transcripts as declarations against interest. But one of these four alternatives is going to be necessary in terms of the balance that the court must strike. And we would contend that when a conflict arises between the fundamental right of the Defendant to confront and cross-examine the witnesses against him, and the right of a witness to invoke the 5th amendment privilege, it is the 6th amendment right of confrontation that must prevail. And we have proposed four very reasonable alternatives that would accommodate Mr. Simpson's right to confront and cross-examine Detective Fuhrman and still respect any valid assertion of a privilege against self-incrimination.

THE COURT: I will hear from the People.

MS. CLARK: What you have just heard, your Honor, is simply in many respects the repetition of arguments previously made to this court and rejected, and the expression of the Defense frustration at not having obtained the ruling they sought to obtain. That does not mean that any of the proposed alternatives are in any way, shape or form proper, legal or required in this case. Let me remind the court of what occurred in this courtroom during the last week of the Defense case, just so we are clear that the Defense has not only not suffered any detriment, but they have received every possible windfall they could possibly ask for. In the form of the McKinny tapes, in the form of the testimony of Hodge, in the form of testimony of Miss Singer, the Defense has trumped everything they previously planned to give to this jury in an incredibly overwhelming way. They have launched every inflammatory attack they could possibly launch. They were given wide latitude to do so. In doing so they have been allowed to effectively impeach Detective Fuhrman's testimony with respect to his assertion that he never used racial epithets in the past ten years. They have done so conclusively, they have done so without any ability on the People's part to bring Detective Fuhrman back to explain or mitigate the circumstances. We accept that deficit. The Defense is refusing to accept their victory graciously. They want more. They want more. They have won, your Honor. I mean, you know, they got that concession. They have won. They proved to this jury he lied about that, but that is not enough. They want to go farther and want to rub the jury's noses in it and also seek to draw improper inferences from that aspect of the testimony. And that is what is not fair and that is why they have been seeking things that are way beyond the law and way beyond the pale. With respect to--and let me indicate People versus Garner is wholly inapposite. I don't know if the court had a chance to read that, but in the garner case what occurred was that the witness testified, was the sole witness against the Defendant. He testified at the preliminary hearing. After the preliminary hearing he told the People I lied and I'm not coming back to testify and I'm going to invoke because you could prosecute me for perjury. So all the jury had was the former testimony of that one Prosecution witness who was their sole witness to prove all the relevant information against the Defendant, read to them through the former testimony exception under evidence code section 1291, so that the Defense really had no opportunity to cross-examine him before the jury and then the jury was not informed that he had told the Prosecution that he lied. The only thing that the jury was informed in that case is that he invoked his 5th amendment right and they were not to speculate as to why. I don't consider that analogous to this situation at all, nor do I think anyone else would. When you look at the situation in this case, what you have is the fact that Detective Fuhrman was extensively cross-examined as to all aspects of his testimony concerning this case. He is not the key Prosecution witness. What he is is the Defendant's poster boy for the key Prosecution witness. That is what they want. They want to make him as critical as possible because he was so easily and thoroughly impeached on his assertion that he had never used racial epithets in the pass ten years. He behooves them to make him supremely important. I understand. That doesn't mean it is true; it just means that is what they want. They are asserting him to be a key Prosecution witness when in fact if you took hypothetically the situation where you eliminated the glove, you eliminated Mark Fuhrman, we would still have overwhelming evidence of the Defendant's guilt, so we do not have the sole critical witness involved in this case that they did in garner. But more importantly, this witness--

THE COURT: Is that a concession that I should strike his testimony regarding the glove?

MS. CLARK: No, it is not, your Honor. I'm talking hypothetically, and I will address that point. But in garner, you know, you had no ability for the jury to assess the witness' credibility, his demeanor, that is, as he was cross-examined concerning the facts of that case and an admission that he lied in that case. All you had was former testimony. In this case Mark Fuhrman has completely and thoroughly been cross-examined as to all aspects of his testimony involving this case and Kathleen Bell, and the only thing that he was not cross-examined about was the windfall of McKinny, Hodge and Singer that the Defense came up with later. What you basically have here is that he was impeached, though. You know, even though they haven't cross-examined him about it, the truth of the matter is all they want to do is parade him up again in front of this jury so that they can make the jury look at him when they ask him about the "N" word. And they have already heard all the impeachment. He has been impeached with his own voice saying racial epithets. They have got him. But they want more. They want to kick him around in front of the jury. They have got enough to get the instruction about a witness willfully false. They will argue it until the cows come home, I promise your Honor they will. They will parade Mark Fuhrman in front of the jury and talk about a witness willfully false probably for half their case. They have got that instruction. They have got the witnesses who directly impeach his assertion. They have got his voice on tape and they want more. That is all they are saying here. They want more. But in saying that, your Honor, they are not justified getting more. Now, I would indicate to the court with respect to Rolf Rokahr's testimony, he has been impeached by already Robert Riske and Detective Phillips, both of whom testified that they saw that photograph being taken after the detectives got back from Rockingham, and the Defense knows that. I mean, that is another game they are going to play with the credibility of Mark Fuhrman. Talk about shifting sand. Mr. Uelmen get up and tells the court that they think his credibility is intact as to various--various topics and they intend to rely on his testimony about those topics. Now they want it both ways. If their indication is--and I will move on. This is the striking issue, your Honor. If it is their position that they have to strike the testimony concerning the finding of the glove, then they are doing so because they feel that his credibility has been unfairly left intact when in fact he was impeached, but he was not impeached as to whether or not he planted the glove, your Honor, at all. In fact, as the court noted in its own ruling, all of the testimony in this case makes it very, very clear that no evidence was planted by Mark Fuhrman. In fact, his credibility is intact on that issue. Yet they would have you seek--they would have you strike just that portion of his testimony that everyone knows, who reasonably and fairly looks at this evidence, is true. Now, what is the point of that? What is the fairness of that? What is the legality of that? Nil. They just want to strike it because they don't like it. They want to be able to use the striking of that to turn to the jury and say, aha, you see, he did. It is ridiculous. The court's own ruling makes it clear that there was no evidence planted by Mark Fuhrman and they would move you to strike that testimony when they have failed to impeach him in any way, shape or form. The only thing they have impeached is his assertion that he did not use racial epithets. Okay. If they feel that they have not had the opportunity to effectively cross-examine him on that point, strike that. I mean, that is where it goes. That is where the impeachment was, your Honor. They were not able to cross-examine him on Hodge, Singer or the McKinny tapes, so strike his testimony about racial epithets. That is what legally and logically follows, not the striking of the glove. They are going to pour through this transcript and say, as Mr. Uelmen just has, incredibly and inconsistently, he is going to go through the whole transcript and say, well, I like this, I like this, I like this but I don't like that. Strike that. But that was never impeached and that was not the subject of Hodge, Singer and McKinny, so there is no logic to what they are requesting you to do. Moreover, and even more troubling, the court inquired directly of the Defense as to whether or not they wanted to waive or as to whether or not they wanted to strike Detective Fuhrman's testimony, and they expressly and repeatedly said, no, we are aware of that remedy, we choose not to. And they made that assertion at a point in time before they knew how the court would rule, at a point in time before they knew whether they would get that instruction, so they have waived their ability to move to strike at this point, your Honor. And even if they haven't waived, there is absolutely no logic and no reasoning to support the ability to strike the testimony in any part at all. And I would also point out to the court that when they refused that option of striking, they did not do so conditionally. They didn't tell this court, well, we may move to strike if the court doesn't rule favorably on everything else. That was an unconditional waiver. No, we do not want to strike his testimony.

And in point of fact, they are asserting to this court that as to large segments of his testimony they are going to argue to the jury that Mark Fuhrman was credible. I can't wait to hear that argument. That is going to be very entertaining. But nevertheless, I think it does tell the court something about the viability and the integrity of the motion to strike the portion concerning the glove. It is not right. It is not right in logic and it is not right in law. Moreover, your Honor, with respect to the glove testimony, full cross-examination was had on that subject matter. As you recall, Mr. Bailey went extensively into how Mark Fuhrman found the glove and then proposed to go into and did I think cross-examine about how marines carry things in their socks and other interesting points like that, but Mr. Fuhrman was fully cross-examined on that issue. So if there has been no depravation of the right to cross-examine and confront the witness against on him that topic, again, then why strike it? Under the circumstances the court finds in this case there is simply no authority to strike what the Defense is asking the court to strike.

THE COURT: Excuse me just a second.

(Discussion held off the record between the court and Mr. Byrne.)

THE COURT: Miss Clark.

MS. CLARK: Let me cite to the court the case of People versus Daggett, D-A-G-G-E-T-T, 225 Cal. App. 3D, 751 at page 760. That deals with this issue more directly. In that case the court refused to strike the victim's testimony after the victim invoked. There had been a limited exercise regarding impeachment concerning his being charged with a molestation of children. In that case he was the sole accusing witness against the Defendant in a case of molestation. He admitted on cross-examination to having been charged with molesting other children, but exercised his right under the 5th amendment to refuse to testify as to whether he had ever admitted having molested children himself. The court found there was no error in the denial of the motion to strike. Now, I would call that a pretty serious invocation and a very serious aspect of the witness' credibility when you are talking about a molestation case and he invoked on a key issue concerning his own credibility. In that case the motion to strike was denied. Now, interestingly, the Defense belatedly contests Mark Fuhrman's right to invoke.

(Brief pause.)

THE COURT: I'm listening.

MS. CLARK: Oh, okay. At the time that he did invoke, however, they not only conceded that he had the right to invoke, but were obviously not contesting any aspect of his right to invoke. And with respect to that, your Honor, I would really like to hear an offer of proof as to what they think--they say that there are some areas in which he would not need to invoke and other areas in which he would. I would really like to hear what areas they intend to examine him about that doesn't require the invocation. With respect to this case, all aspects of this case have been thoroughly cross-examined on. If they intend to go back into that testimony, it is cumulative and it has been asked and answered and under 352 an undue consumption of time in repetitively asking those questions should properly be granted.

So if they want to go back into that, for which there is no 5th amendment, I believe, then there is no reason to recall him. If what they want to do is go into past acts of alleged misconduct on the tapes, there is obviously a valid 5th amendment right to those issues, so I would really be curious to know what the Defense thinks they can question him on for which there is no valid 5th amendment right? And I think that in itself really exposes the intent here. The intent is nothing more than a game to get him back in front of the jury and parade him around and ask some improper questions as to which the court will sustain proper objections, and infer things they should not be inferring from the manner in which the questions are asked in another effort to make a circus out of this trial involving Mark Fuhrman. There is no valid reason to recall Mr. Fuhrman and the Defense has failed to show this court in specific what reason there might be. And when I say that, question him about what? For what? He has already invoked with respect to those tapes. We know that when he said he didn't use racial epithets, he did not tell the truth. That has been done.

Now they have rebutted his testimony, they thoroughly impeached that assertion by him, and they have not offered this court any valid reason to go into that. Now, with--to recall him, excuse me. Now, based on what I have indicated to the court in the garner case, we don't have the fundamental unfairness here that we do there. This witness has been thoroughly rebutted, thoroughly impeached in his assertion about racial epithets from his own mouth on the tape. The jury has a clear and complete picture of that.

THE COURT: I think you have made that argument.

MS. CLARK: Okay. Okay. So the Defense really has all of the benefits that garner would have urged it to have. Caljic 2.25, do I need to address that argument, your Honor?

THE COURT: It is your record.

MS. CLARK: All right. I don't want to waste the time of the court if it is not necessary. 2.25 is clearly inappropriate to be given. That instruction is included obviously in Caljic because there can occur a situation, as I have previously argued to the court, where there be an assertion, an invocation that was unexpected, and in that sense I mean that someone comes into court and all of a sudden refuses to be--to answer the questions posed to him--

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

MS. CLARK: --in the jury's presence. Now, even though the invocation formally is taken outside their presence, when a witness all of a sudden stops answering and refuses to, some kind of prophylactic measure has to be taken. That is not the situation we have here. And the court is being invited to revisit an issue that has already been resolved on appeal. With respect to the last request, the court has already properly denied it. With respect to declarations against penal interest, the court gave a full recitation of reasons for its ruling and it was not an unconsidered but it was a very carefully considered ruling in which the court appropriately found that the evidence code section requirements were not met; neither for trustworthiness--I can't remember the rest of the ruling. In any case, I remember reading it and hearing it. Therefore, your Honor, I don't think that there is any merit--I will go farther than that--there is no merit to any of the requests posed by the Defense and the request should properly be denied in toto as nothing more than a reassertion of their frustration at their inability to parade Mark Fuhrman again before this jury. They have thoroughly discredited him and they will have every opportunity to remind the jury of that fact in closing argument, as I'm sure they will do. They have been denied nothing in their ability to cross-examine him. They have gotten every benefit out of it they could possibly hope for, and much, much more.

THE COURT: Thank you. Mr. Uelmen.

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

MS. CLARK: Your Honor, I did not address the immunity issue.

THE COURT: I thought did you in terms of garner.

MS. CLARK: No, not necessarily--

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

MS. CLARK: Only I distinguished garner. Let me indicate to the court, though, with respect to the immunity issue--well, we need to hear more about what the Defense wants us to give immunity for. I would indicate to the court that under hunter, although that court--although that court gave a proposal for how the court might grant immunity in the extraordinary case, I would remind the court that that theory was never implemented in any subsequent case by in court and never found to be appropriate. But moreover, you know, I really think the immunity argument is addressed in this manner, your Honor: They have had the ability to thoroughly rebut Mark Fuhrman and there is no reason to recall him for further testimony. And I think that really kind of answers it. There is just no need for immunity.

THE COURT: I take it that is an indication that you, representing the Prosecution, are not in a position to offer Detective Fuhrman any immunity for testimony?

MS. CLARK: Well, I haven't even considered it. Let me indicate this to THE COURT: With respect to his testimony and his actions in this case, he doesn't need immunity. He committed no misconduct. With respect to what is contained on the tape, no one knows, and of course we could not grant immunity as to that, and that is clearly what the Defense would like to get into in cross-examining Detective Fuhrman.

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

MS. CLARK: Furthermore, your Honor, the Defense has been clamoring for the Prosecution of Mark Fuhrman for perjury for the past three weeks and they now want us to grant him immunity so he cannot be prosecuted? I find that position to be highly inconsistent. I don't think that properly anyone should want us to be precluded from prosecuting Mark Fuhrman if there is an appropriate Prosecution to be had. We don't know that. I can only say that with respect to the conduct of his investigation in this case, there is--there was no misconduct, but with respect to what is contained on the tapes, we don't know.

THE COURT: All right. Thank you, counsel.

MR. UELMEN: Your Honor, talk about inconsistencies and contradictions. Isn't it remarkable that the Prosecutor is saying the Defense has already thoroughly impeached and discredited Mark Fuhrman and shown that he is a liar and then to stand up and say, we are not going to grant immunity from perjury, it just represents the degree to which the Prosecution wants to have it both ways in this case. They want to continue to embrace Mark Fuhrman. They want to continue to rely upon his testimony with respect to the discovery of the glove, and yet they want the benefit of the Defendant's denial to confront and cross-examine this witness. Confrontation and cross-examining is not a game, your Honor. It is a right guaranteed by the 6th amendment. And the reason it is guaranteed in the 6th amendment is because it is the greatest engine for getting at the truth that we have been able to devise, and we have been deprived of that right.

Your Honor has already ruled last week in noting that the record is clear that when cross-examination was adjourned it was subject to recall for further cross-examination, and your Honor indicated that further cross-examination about the testimony of these witnesses was likely and reasonably and appropriately the subject of further cross-examination. We've heard some really remarkable legal propositions in the course of the argument just presented and they are propositions that I have never heard before. No. 1, Miss Clark is suggesting that impeachment is a substitute for cross-examination. I have never heard that before. I have never heard that regardless of what extent a court allows a witness to be impeached, that that--that that can be a substitute for cross-examination and be a justification to preclude a Defendant from confronting and cross-examining the witness against him. Your Honor indicated in the cross-examination of Detective Fuhrman being conducted by Mr. Bailey that certain areas should not be explored until we have come up with evidence to back up the assertions that were being made.

your Honor permitted the cross-examination with respect to Kathleen Bell and we are prepared to accept your Honor's determination that further cross-examination in that area is not necessary, because we had essentially what Miss Bell had said at the time we got up to cross-examine. but now we have a lot of additional witnesses who were not even available to us at that time with respect to whose testimony we have the right to challenge Detective Fuhrman's credibility. there has not been any concession by the Prosecution that Detective Mark Fuhrman is a liar and that his testimony should be discredited. in fact, with respect to the impeaching witnesses that we called last week, the Prosecution got up and impugned their integrity, suggesting that they were here to make money, suggested that--that Miss McKinny had some sort of ulterior motives, suggested that she had some sort of relationship with Mr. Fuhrman. so there hasn't been any recognition by the Prosecution that all of these witnesses should be believed in their entirety and we can simply discredit and throw away the testimony of Detective Fuhrman. they still want to embrace Detective Fuhrman. they still want to use his testimony about the discovery of the glove.

The second really remarkable legal proposition we heard in the course of that argument was that in view of what we've already presented with respect to Detective Fuhrman's credibility, we cannot justify getting any more. That is pretty remarkable, that the Defendant has to justify the right to confront and cross-examine a witness against him. I always thought that--that was a given, that was a right guaranteed by the Constitution of the United States. The final really remarkable proposition is that the Prosecution can tell us which parts of this witness' testimony are true, that everyone knows, and which parts are false. I always thought that that was the function of the jury, that we will leave to the jury the question of sorting out what parts of a witness' testimony are true and what parts are false. And the most important tool we have to assist the jury in that process is the opportunity to confront and cross-examine the witness. We don't know what is in the minds of any of those jurors. There may still be people on that jury who were very impressed by how forthright and forthcoming Detective Fuhrman was. That is--that is the last time they saw Detective Fuhrman, when he was on that stand subjected to direct and cross-examination for six days. And remember when he got off that stand what the conventional wisdom was about the credibility of Detective Fuhrman. There may still be jurors who believe that despite all of our efforts to impeach his credibility, he is still a believable witness and who also assume--

THE COURT: You are not seriously suggesting that I should take the, quote-unquote, conventional wisdom into consideration, are you?

MR. UELMEN: Well, apparently the Prosecution is offering your Honor the conventional wisdom in suggesting, well, everybody knows that there is no planting of evidence in this case. Everybody doesn't know that. We certainly don't know it and we don't believe the jury knows it yet either. And we are saying that the risk to us of not recalling that witness and confronting and cross-examining him in the presence of the jury will redound to the Defendant's disadvantage and that is simply not a tolerable resolution of this issue, that they are allowed to use his testimony to rely on it and then foreclose the opportunity to cross-examine, whether by their refusal to agree to the striking of the testimony or to their consent to a limited use immunity under these circumstances.

And we believe garner is directly on point. In garner, too, the witness had been examined and cross-examined and the prior testimony that was presented, because of his unavailability by invoking the 5th amendment, was both the direct and the cross-examination presented at the preliminary hearing. So it is an identical situation to what we have here, and it was the invocation of the 5th amendment privilege that precluded the Defendant from confronting and cross-examining that witness at trial. And the court said that is just not acceptable to allow the Prosecution to say we want to use this evidence to convict the Defendant and send him to jail for the rest of his life and we want to keep our options open to prosecute that same witness for perjury for the testimony that we are relying on. With respect to the suggestion of waiver, there hasn't been any waiver here, your Honor. We are pursuing every potential remedy that the court has available. The fact that we were willing to accept an instruction last week, in lieu of pursuing our right of cross-examination, does not foreclose us from insisting on that right when the instruction has been denied and we are left back with square one again, a witness that the Prosecution wants to rely on that we have not had the opportunity to fully confront and cross-examine as guaranteed to us by the constitution of the United States and the state of California.

THE COURT: All right. Thank you, counsel.

MS. CLARK: Your Honor, in light of the fact, I just want to cite cases to the court because we have not been allowed to--we had fifteen minutes' notice. We were not allowed to file moving papers in this case. I just have some cases to cite to the court.

THE COURT: Cases.

MS. CLARK: People versus Cooper.

THE COURT: Is that the Kevin Cooper case?

MS. LEWIS: Yes, I believe so.

MS. CLARK: 53 Cal. 3D 771 for the proposition that the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination, that is effective in whatever way and to whatever extent the Defense might wish.

THE COURT: What other case?

MS. CLARK: People versus Superior Court, Piedrahita, P-I-E-D-R-A-H-I-T-A, 34 Cal. App. 4th, 508, for the same proposition. And Delaware versus Van Arsdall, A-R-S-D-A-L-L, 475 U.S. 673.

THE COURT: All right. Thank you. I'm familiar with those cases. With respect to the first request to strike the testimony of Detective Fuhrman as it relates to his discovery of the Rockingham glove, I find that prior to the arguments--the submission of the arguments concerning the request for a jury instruction that that request was waived. Assuming the waiver that--notwithstanding that waiver, assuming the Defendant has the right to renew the request subsequent to the action by the Court of Appeal, I find that with regard to the issue presented and most forcefully argued, that is, regarding the issue of the discovery of the glove, that Mr. Fuhrman was in fact cross-examined with regard to that specific issue, there was a full opportunity to cross-examine him over six days. The motive to--excuse me. The Defense was aware of the comments of Miss Bell. Detective Fuhrman was cross-examined as to the allegations made by Miss Bell and there was in fact the full and complete opportunity at that time. As to the request that the court order the Prosecution to grant use immunity, the court finds that the facts and circumstances in garner are very unlike the facts and circumstances in this case. In that case the sole evidence that was presented of the Defendant's guilt was the preliminary hearing testimony that was presented because the witness was no longer available, having claimed the 5th amendment privilege. Here the situation is, is that Mr. Fuhrman was subjected to cross-examination, direct and cross-examination over a six-day period. His testimony encompasses six full volumes of this court's transcripts. He was ably examined and cross-examined. Garner is distinguishable. The court finds no other authority for the proposition that this court can either on its own grant immunity or direct the prosecuting agency to do so. With regards to the request to recall Detective Fuhrman, the court has previously ruled on that issue. That ruling will stand. The court has previously ruled on giving a jury instruction. This court's ruling on that issue was overturned by the Court of Appeal. I have no authority to go beyond that. And with regards to the declarations against interest, that is a renewal of that request, and the court's previous ruling will stand for the reasons previously stated. All right. We will stand in recess until one o'clock.

(At 12:02 P.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; MONDAY, SEPTEMBER 11, 1995 1:05 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Mr. Cochran, what is your position on the Defense, since you haven't rested at this time?

MR. COCHRAN: Well, let me indicate the following to the court. Thank you, your Honor. Good afternoon, your Honor.

THE COURT: Good afternoon, sir.

MR. COCHRAN: As the court is aware, the Defense really never rests, but more specifically in this case, we cannot rest at this point for a number of reasons. First of all, if the court pleases, we would like an opportunity to take a writ regarding the ruling of the court this morning. The court will recall that I guess it was last Thursday the Prosecution indicated they wanted to take a writ and the court was kind enough to give them in fact more time than Miss Clark could ask for. We are very mindful of our jury back there, but we want to take a writ on this whole issue because we are in a situation, your Honor, where we talked a lot about a search for truth where this jury will basically be lied to, that they will not understand what has really happened in this courtroom. You are not permitted to give a jury instruction. So far we can't call him back. This man has lied and perjured himself to the entire world.

THE COURT: Well, Mr. Cochran, the point being you want to take a writ?

MR. COCHRAN: Yes, we want to take a writ and we would like to take a writ, your Honor, and I just was about to ask our court reporters how soon we can get the transcript. And I would ask--I talked to Mr. Dennis Fisher, who will be handling the writ, and he needs basically until tomorrow afternoon because he has got to get the transcript and all the documents together to do that. That is the first thing I would like to point out to the court. Secondly, there is another issue regarding our inability to rest. The court will recall that Mr. Scheck and I appeared in your chambers under 1054.7. There is a critical witness in this case, who shall remain nameless at this point, that we think there will be startling evidence regarding before this week is out and we may want to impeach further, may want to call back for further cross-examination. We expect by Wednesday that information will be available. We think there are also Brady implications regarding this entire witness, so we can't rest regarding him. Finally, in addition to the writ, we would like to call Detective Fuhrman back to the stand for a specific testimonial circumstance and it is as follows: You will recall that during Mr. Darden's cross-examination of Miss McKinny it seems as though he attacked her credibility and you will remember the colloquy between the two of them. They can say all they want in argument, but we know what has happened before this particular jury, and so we would like to call Mark Fuhrman before the stand and I would like to have him--specifically have him utter those words that were played on that tape so that once and for all we can determine that is his voice and the jury knows that is his voice. We have an absolute right to do that and he is under no 5th amendment problems regarding that and so we would like to do those things. Those are the various things we would like to do at this point. If we can get Fuhrman down here, we can do that and go on and--but other than that, we need a stay involving the writ, but I think the thing involving the witness will become obvious I think by Wednesday at the latest. As far as being able to do other things, your Honor, my colleagues are very, very anxious to be able to argue to your Honor the balance of the motion regarding scope. There is some issue regarding RFLP results. There is all kind of things that we can do.

THE COURT: That argument is scheduled for five o'clock this afternoon.

MR. COCHRAN: Oh, is it?

THE COURT: Yes.

MR. COCHRAN: Very well.

THE COURT: The Bronco, Gary Sims, I think that is set for five o'clock this afternoon is my recollection.

MR. COCHRAN: I think the balance of the scope argument, maybe we can hear that perhaps before that time I think. I think Mr. Blasier has more on the balance of the Prosecution's idea of scope, if the court pleases.

THE COURT: All right. All right. What is the People's position?

MS. CLARK: I believe that one of the orders issued by the Court of Appeal was that there would be no further stays. Secondly, when the People requested their stay, there was no minute of time lost. The court indicated we would begin rebuttal on Monday morning and we then proceeded immediately, during the time that the writ was being prepared, to argue the admission of exhibits. There was not one minute of time lost in this trial. We did not start one minute later than we would have. So our writ took no time away from the jury or away from the court. With respect to Mr. Cochran's request to delay again until Wednesday, I think it is ridiculous. It is up to this court. This court is aware of what the information is, and I am not, so you know, we are operating at a real deficit here. I don't know what would qualify under 1054.7 at this late date, but Mr. Cochran, if he has no further witnesses to call before this jury, has to rest. That is all he has to do. And if he wants to take a writ, he may take the writ. He is always entitled to do that, that is fine, but not take any more time away from this jury. If he has no further witnesses for this jury to hear, he is through and the court has the power and in fact the duty at this point to say it is over. It is over. There is just so much that they can do to mess around and fantasize about other people that have startling new evidence. Only the court is aware of how startling or new it might really be or if it is even admissible before the jury.

THE COURT: Nothing startles me any more. I can understand that and I think I share that, your Honor. But nevertheless, this is another filibuster proposed by the Defense. It is the eleventh hour. We have witnesses siting upstairs that we have flown in waiting to testify in front of this jury, but we will not begin, we can't begin our rebuttal case until they rest and it is time that they do. I mean, that enough monkeying around here.

THE COURT: All right.

MR. COCHRAN: May I respond, your Honor? First of all, we don't need--I don't need counsel to tell us when to rest our case. I have indicated to the court where we are in this situation. And that is flat out an untruth. What happened was she had asked for until Friday noon until--she had asked until Friday morning. Your Honor gave her until Friday noon and then you said we were being to start rebuttal Friday afternoon. It had nothing to do with her. The jurors had something planned on Friday afternoon, so I mean, they can't ever get the record straight. Yes, there was a delay. There was no question there was a delay by virtue of them seeking a writ. Now when we ask for a writ--and under the circumstances it would seem to me they join in this because the record--your Honor's hands have been somewhat tied. We've talked all this time about truth to this jury. This jury is not getting the truth and we cannot say we rest in good conscience. As officers of the court we are not going to say those words. Further, you do know about the 1054.7 and I think they should know and that is why I said there is Brady implications about this. A lot of people know about this. Certainly now that we have become aware of it we have brought it to your Honor's attention. We have a right to pursue that, a key witness in this case. Also, for those reasons, we are not wasting anytime. We ask leave of court to do these various things. They brought this writ. We have a right to do it. And the point I should point out, your Honor, is this is how unfair it all is. What happened was they bring their writ. The Court of Appeals issues some kind of preliminary stay. We never get a chance to file anything. Your Honor then withdraws the jury instruction. They then resume. The issue is mooted. Mr. Simpson hasn't been able to file one piece of paper at this point. What kind of fairness is this? He is talking about wasting time. Nobody is monkeying around. This is serious business and we want our opportunity to have--our chance to file some papers. And just before lunch Dean Uelmen and I spoke with Mr. Fisher. He's prepared to go forward at this point. So this is serious business. We want to make this thing as clear as possible. The court can see where we cannot rest at this point. And I think that, you know, it is a little late for the People to be arguing this, your Honor, because they are the ones who precipitated this problem. If you had gone ahead as we had asked you to, to give that jury instruction, we wouldn't have had this problem, it would have been over at this point. They saw fit to take their writ and we have a right to do the same thing. The court gave them a stay. And as far as the Court of Appeals I think they misconstrue. I cannot believe that a Court of Appeals in this state would tell you that you can't grant any further stays at all in this case no matter what happens. They might as well come down and try the case if that is the case. Maybe they want to do that. But that sounds to me to be rather illogical. And you may take it up on that perhaps, from the look on your face, but I can't believe that was the intent. I know Judge turner and I'm sure that wasn't his intent or his import.

THE COURT: He might enjoy it.

MR. COCHRAN: Yeah. Well, Judge, he also has a lot of reading to do as you were aware earlier a couple weeks ago. He would have a lot of reading to do before he can catch up with this case. But I think we have a right to do that, your Honor. This is not wasting any time and there is other things that we can do. I am not, on behalf of my client, prepared to rest. You can imagine how Mr. Simpson felt on Friday. All these things went by through fax machines and telephone and we are finding out on the news what is happening. What do we say to our client there? All he wants is a fair trial and all these things are going on and he never gets a chance to file one piece of paper and all of a sudden it is mooted out and you are told you can't do that. We don't have to accept that. You might want to accept it. We don't accept it. We want to do something about it.

THE COURT: I'm just a poor trial court Judge.

MR. COCHRAN: Well, no. Well--no. You are too kind, your Honor. You are much more than that. But I think what we have a right to do that, your Honor, because really all of us have roles, transitory roles. But with regard to Mr. Simpson and seriousness, this has an effect upon him, it affects his life and the rest of his life, his ability to get a fair trial and that is what we are trying to do, your Honor. That is why it is so serious.

THE COURT: All right. Thank you, counsel. All right. At this point, the court is mindful first and foremost of the burdens that we've placed on our jury and the fact that they have been seated in our lounge waiting for the presentation of additional evidence today. Likewise, on the basis of the request--these are extraordinary issues. I don't think anybody would agree that--I think everybody would agree that these are unusual and unique legal issues. And if the Defense wishes to pursue their writ remedies, then they have every right to do so. And I am not going to require the Defense at this time to rest. What I will do, though, is exercise my discretion under the penal code and direct that the Prosecution, having indicated their ability to go forward with their rebuttal case, direct that they begin presenting their rebuttal witnesses at this time. The Defense will have leave to present further witnesses in their case in chief on Defense.

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

THE COURT: All right. That will be the ruling.

MR. COCHRAN: Your Honor--

MS. CLARK: Your Honor, may I--

MR. COCHRAN: Will the court listen to Mr. Blasier with regard to the rebuttal aspect?

MS. CLARK: Before you do that, what we are facing here then is for the ability--the People have to go forward with their rebuttal evidence?

THE COURT: That's correct.

MS. CLARK: And the Defense will then be allowed to resume its case in chief at some point during that rebuttal case, perhaps even including witnesses to rebut what we put on during our rebuttal case?

THE COURT: Their case in chief, counsel, subject to the same scope issues. All right. Let's proceed.

MS. CLARK: Will the court at least require that the Defense put on the record outside the presence of the People exactly what witnesses they intend to present in their case in chief to conclusion so that nothing is added as a result of the People's rebuttal evidence?

THE COURT: That has been done in the 1054.7 hearing this morning.

MS. CLARK: At what point is the court going to determine that the People have a right to find out to get disclosure of the secret information?

THE COURT: As soon as the investigation as to that issue has been concluded and the issue is available for public dissemination. That may happen sooner than you think.

MS. CLARK: Perhaps today?

THE COURT: I don't think today, but perhaps by the end of the week.

MS. CLARK: Perhaps by the end of the week? What if the People have to rest their rebuttal case without knowing about that?

THE COURT: Well, that is the nature of 1054.7, unfortunately.

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

MS. CLARK: Then at least can the court take the waiver of the Defendant?

THE COURT: They haven't rested their case yet so I am not inclined to take the waiver from the Defendant at this point.

MS. CLARK: Is there any limitation that the court is going to place on the nature of the testimony they present in their case in chief?

THE COURT: They have had a proffer under 1054.7 as to what they might go into.

MS. CLARK: And there are no other witnesses other than what is contained in the proffer under 1054.7 that they can call in their case in chief at this time?

THE COURT: That is my inclination at that time.

MS. CLARK: Then perhaps we offer to the court the option of asking them to rest subject to the availability of the information under 1054.7.

THE COURT: I'm not going to require them to do so and it is within my discretion not to require them to do so. I exercise my discretion in that manner. All right. Deputy Magnera, let's bring the jurors down, please.

MR. COCHRAN: One other question, your Honor. Did your Honor care to resume on the aspect--we wanted to call Detective Fuhrman for the purpose of having him state those words that were allowed and the one incident your Honor allowed us to play that was on tape. I don't think he claimed the 5th amendment for that.

THE COURT: All right. That request is denied. All right.

MR. BLASIER: Your Honor, it was my understanding that you ordered that all the glove evidence be brought down so we could evaluate. That hasn't been done. I have not received the letter that they wrote to Ruben with the pictures that he was sent. I have seen some boards over here. I have never seen any boards. I thought the pictures I got last week are the ones that they are going to use. I am not ready for Mr. Rubin. I heard a rumor that they are going to call him right now. I am not ready for that. I am not ready for the direct or the cross. Photographers, fine, if we can sort out which pictures they can use and which ones they can't.

MS. CLARK: I thought that was already done.

MR. DARDEN: I already advised--

THE COURT: Mr. Darden.

MR. DARDEN: Good afternoon, your Honor. I advised Mr. Blasier earlier that there were two witnesses that we certainly were not going to call who are on the list, nor were we going to use their photographs. There was a third witness who I advised him was more--most likely not going to be called as well.

THE COURT: All right. Which photographers are you going to call?

MS. CLARK: Are we going to or not going to call?

THE COURT: Are you going to call?

MS. CLARK: Mark Krueger, Bill Renken, Kevin Schott, Karen--I'm sorry--Karen Brown, Stewart West, Jim Chegia, Mike Romano, Robert Seib.

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

MS. CLARK: And Deborah Guidera.

THE COURT: All right. While we are bringing the jurors down, I'm going to ask you to exhibit to counsel the photographs that you are going to use.

MR. BLASIER: For the record, I have never received a print on Schott. All I've got is a color--a bad color Xerox. That doesn't show you anything.

THE COURT: All right. Who are your first two photographers?

MS. CLARK: Krueger and Renken.

THE COURT: All right. Do you have those photographs?

MS. CLARK: Yes.

THE COURT: All right. Show them to counsel.

MR. NEUFELD: Good afternoon, your Honor.

THE COURT: I'm fine. How are you? Nice tie.

MR. NEUFELD: I am glad to hear that.

MR. SHAPIRO: Cheaper by the dozen.

THE COURT: Mr. Neufeld, let me resolve this issue first.

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

MR. BLASIER: Your Honor, Renken they have ten pictures of the same game. I don't know why they really need ten. I was told that they were going to use two. Krueger, he is not down here yet.

MS. CLARK: There are taken from different angles, your Honor, and at different times during the day, which is important, because at one point a flash was used; another point a flash was not used, so all of these pictures are relevant. I mean, this is--

THE COURT: All right. I just want to make sure that they have been shown to Mr. Blasier, that he has had copies of them, he has had the ability to look at them. And the second witness, you don't have the photographs down here yet?

MS. CLARK: Somebody else was--I really--

MS. LEWIS: Your Honor, I had asked them to bring them down and he must have misunderstood.

THE COURT: This morning I ordered all of this stuff to be brought down, if you recollect.

MS. LEWIS: Okay.

THE COURT: I hate all the time we are wasting.

MS. CLARK: It was down here this morning and then we took it back up at lunch, your Honor.

THE COURT: All right. Is this the photograph?

MR. BLASIER: I have never seen this, your Honor, this exhibit. I have seen the smaller ones.

MS. CLARK: Counsel has seen this photograph; not this big.

MR. BLASIER: I thought that the court had ordered that I be provided with photographs, the same size, the same quality as theirs, so I could show them to experts. I haven't seen this one.

MS. CLARK: Let me advise the court that photomicrographs introduced with Mr. MacDonnell were not shown to me until he was on the witness stand.

THE COURT: Wait. Apples and oranges, counsel. All right. You have a copy, however, of that photograph, correct, Mr. Blasier?

MR. BLASIER: The smaller ones that they have, yeah; not this one.

MS. CLARK: He has a smaller version of this one, too.

MR. BLASIER: That's correct.

THE COURT: Okay.

MR. BLASIER: Not the blow-up.

THE COURT: All right. Is this larger photograph with regards to the second witness?

MS. CLARK: Yes.

THE COURT: All right. How about the third witness?

MR. BLASIER: No, no, that is Renken.

MS. CLARK: Yeah, that is the second witness.

MR. BLASIER: Who is the first one?

MS. CLARK: Krueger.

MR. BLASIER: I haven't seen Krueger.

THE COURT: Krueger's we haven't seen.

MS. CLARK: Yes, counsel has seen Krueger's. I will bring them back down again.

THE COURT: All right. Bring them down here. Let's get the jury down here. All right. Let's proceed.

(Recess.)

(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. Are we ready to proceed, Mr. Blasier?

MR. BLASIER: I was just given three more pictures that have nothing to do with gloves, but are from one of the photographers that purport to have Mr. Simpson in what appears to be kind of a team photo with no gloves on. But, more importantly, I have a still photo of Mr. Simpson on a football field with I guess these old-timers, I'm not sure, with one foot off the ground. They want to introduce this to show that this proves that Mr. Simpson could run the 40-yard dash or something is what I was told. This is the first we heard of this, completely different topic. We object to it. It's a still photo that doesn't show anything. So we would object to these.

THE COURT: Miss Clark.

MS. CLARK: Yes. We just got them last night. The witness came in and we met for the first time. He had brought photographs in with him that we had never seen before. He showed me this one where he did the 40-yard commemorative run. And I'll just show the court. It's obviously direct impeachment of rebuttal of the Defense case concerning Mr. Simpson's physical ability.

THE COURT: When was this?

MS. CLARK: End of November `93, November 21, `93.

MR. BLASIER: It's a still photo, Judge.

MS. CLARK: Why doesn't the court look at it. Still photos catch people in movement all the time. And it will illustrate the testimony because this witness--

THE COURT: He's way behind and he's wearing wind tips.

MS. CLARK: He's running in dress shoes, right. But the witness saw him do the run.

MR. BLASIER: I doubt that this witness has the expertise to testify about any infirmities Mr. Simpson might have.

MS. CLARK: He certainly can testify to his observation that he saw him running.

MR. BLASIER: What was his time?

THE COURT: I'm inclined to go forward with the testimony regarding photographs of the gloves. This is something completely new. It's going to delay our proceeding at this point. I'm not going to go allow it at this point. I'll think about it, but at this point, the answer is no. All right. Let's proceed.

MR. BLASIER: Your Honor, we also have other scope arguments that we want--

THE COURT: With regards to this witness?

MR. BLASIER: No.

THE COURT: I want to get some witnesses in front of the jury now.

MR. NEUFELD: Judge, I have no problem with that. Can we just have your assurance then that we can deal with the other scope of rebuttal arguments as soon as the jury leaves this afternoon?

THE COURT: Absolutely. Absolutely. We're scheduled for 5:00 o'clock starting with RFLP and the Bronco.

MR. COCHRAN: One last thing, your Honor. Is the court going to indicate to the jury that we have not rested? Will you tell them for us?

THE COURT: I told you I would do that.

MR. COCHRAN: Thank you, your Honor.

MS. CLARK: May we have our photographs back?

THE COURT: Yes, you may. Deputy Magnera.

MR. BLASIER: Would your Honor ask the Prosecution to make sure they don't have any photographs lying on the table?

THE COURT: So ordered.

MR. BLASIER: I'm just wondering if they could turn those over or put them away.

MS. CLARK: What?

THE COURT: The running photographs. Thank you.

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

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. You all look vaguely familiar. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Ladies and gentlemen, my apologies to you for the delay in getting started today. As I mentioned to you, there were a number of significant legal issues that I had to resolve, some of which are still unresolved. As a result, the prose--excuse me--the Defense has indicated to me that they have not finalized their decision whether to rest their case at this point in time, and I have allowed them to delay that decision for a brief period of time to give them the opportunity to contemplate the legal issues and the factual issues that are involved in making that decision. However, as the trial court Judge, I have the discretion to adjust the order in which evidence is presented to you, and I have decided to exercise that discretion and I am directing the Prosecution to make use of this time by beginning the presentation of some of their rebuttal witnesses. So at this time, you should understand that the Defense has not formally rested their case. However, the Prosecution will take advantage of this time since we have you here to begin presenting rebuttal witnesses as to their rebuttal case. So you should underline that we're shifting focus at this point in time, but we have not concluded the Defense case yet. All right. Miss Clark, are you prepared to present a new witness on your rebuttal case?

MS. CLARK: Yes, I am, your Honor.

R E B U T T A L

THE COURT: All right. You may call your first rebuttal witness.

MS. CLARK: Thank you, your Honor. People call Mr. Mark Krueger.

Mark Krueger, called as a witness by the People on rebuttal, was sworn and testified as follows:

THE COURT: All right. Mr. Krueger, would you stand right there, please, and face Mrs. Robertson, our clerk.

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

MR. KRUEGER: Yes.

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

MR. KRUEGER: Mark Krueger.

THE CLERK: Would you have a seat, please.

THE COURT: Why don't you have a seat, please, and pull the microphone close to you, please. All right. Would you state and spell your name, Mr. Krueger.

MR. KRUEGER: Mark Krueger, M-A-R-K K-R-U-E-G-E-R.

THE COURT: Thank you, sir. Miss Clark.

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

THE JURY: Good afternoon.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Mr. Krueger, can you tell us, sir, are you a professional photographer?

MR. KRUEGER: No.

MS. CLARK: And directing your attention, sir, to the date of December 29th, 1990, on that date, can you tell us where you were?

MR. KRUEGER: Soldier field in Chicago, Illinois.

MS. CLARK: And why were you in soldier field in Chicago?

MR. KRUEGER: I was shooting photos for my stepfather's newspaper. He is the editor of the newspaper and I went in and took shots for the paper.

MS. CLARK: And what kind of shots were you taking? What were you there for?

MR. KRUEGER: Chicago bear shots. Just anything I could get that's interesting.

MS. CLARK: And was that--that was a football game?

MR. KRUEGER: Yeah.

MS. CLARK: The bears versus who?

MR. KRUEGER: Kansas City Chiefs.

MS. CLARK: And where exactly were you, sir?

MR. KRUEGER: Uh, all over.

MS. CLARK: Where on the field?

MR. KRUEGER: I was on the sidelines, in the end zone. Probably every spot on the field.

MS. CLARK: But you were in the field--on the field--

MR. KRUEGER: I was--right.

MS. CLARK: --that is not on the bleachers?

THE COURT: Excuse me just a second. Mr. Krueger, take your time. Take a breath. Let Miss Clark finish asking you the question before you begin to answer. The court reporter has difficulty taking down two people at the same time.

MR. KRUEGER: Okay.

THE COURT: Thank you. Miss Clark.

MS. CLARK: At some point during this trial, sir, did you send to the Prosecution a photograph that you took during that Bears versus Chiefs game on December 29th, 1990?

MR. KRUEGER: Yes, I did.

THE COURT: Mrs. Robertson.

MS. CLARK: People's next in order, your Honor?

THE COURT: 605.

(Peo's 605 for id = photograph)

MS. CLARK: Showing you People's 605, sir, can you please tell me if you recognize the photograph I'm showing you?

MR. KRUEGER: Yes, I do.

MS. CLARK: And what is that?

MR. KRUEGER: It's a picture of O.J. Simpson at a football game, at the game I was at.

MS. CLARK: And was that the photograph that you took, sir?

MR. KRUEGER: Yes, it is.

MS. CLARK: Now, does this photograph show him wearing any gloves?

MR. KRUEGER: Yes.

MS. CLARK: What does it show him wearing?

MR. KRUEGER: Does it show him wearing gloves?

MS. CLARK: Yes. Is he wearing gloves in this picture?

MR. KRUEGER: Yes, he is.

MS. CLARK: May I show it to the jury, your Honor, on the elmo?

THE COURT: Yes.

MS. CLARK: After that, I'm going to ask leave of the court, if I may, to tape it up to the blank board that you see on the easel with a label for the date underneath, if I may, your Honor.

THE COURT: All right. Mr. Fairtlough, do you have your glare--thank you.

MS. CLARK: This is the photograph that you took, sir?

MR. KRUEGER: Did you want me to look at this or up there?

MS. CLARK: Yes. You can look--do you have it on your monitor?

MR. KRUEGER: Yes, it's on my monitor. Yeah, I can see it.

MS. CLARK: Is that the photograph you took on December 29th, 1990?

MR. KRUEGER: Yes.

MS. CLARK: I have two other enlargements, your Honor. May I ask that they be marked 605-A and B?

THE COURT: 605-A and B. Have you shown those to Mr. Blasier?

MS. CLARK: Yeah. Yes.

(Peo's 605-A and B for id = photographs)

MS. CLARK: For the record, 605-A will be the smaller enlargement. 605-B will be the enlargement that focuses on the glove.

THE COURT: All right. A and B as noted.

MS. CLARK: Thank you, your Honor.

MS. CLARK: Showing you 605-A and B, sir, can you tell us if these are accurate enlargements of the photograph that we previously marked 605 that you took on December 29th, 1990?

MR. KRUEGER: Yeah. They look like the same ones to me.

MS. CLARK: If I may, your Honor, I'm going to put these up on the blank board.

THE COURT: Yes.

MR. KRUEGER: Your Honor, is this water for me?

THE COURT: No, it's not. Mrs. Robertson, the water is fresh?

THE BAILIFF: It's fresh.

THE COURT: It's fresh. All right.

MR. KRUEGER: Thanks.

MS. CLARK: I'm going to let Mr. Fairtlough do it if that's all right.

(Brief pause.)

MR. BLASIER: May I see those just for a minute?

THE COURT: Sure.

(Brief pause.)

MS. CLARK: Now, what color are these gloves, sir?

MR. KRUEGER: They appear to be black to me.

MS. CLARK: Do you recall what time it was that you took this photograph?

MR. KRUEGER: Not exactly. I knew it was at the end of the bears game and I would assume it was probably about 2:00 to 2:30 in the afternoon Chicago time.

MS. CLARK: And do you recall where you were, how far away from him you were when you took this picture?

MR. KRUEGER: Probably 10 to 15 feet.

MS. CLARK: Can you describe the weather?

MR. KRUEGER: It was rainy, just a dark cloudy day, you know. It wasn't like pouring rain, but it was constantly a drizzle all day.

MS. CLARK: Do you recall what kind of camera you used?

MR. KRUEGER: Canon 81.

MS. CLARK: And do you recall the film speed?

MR. KRUEGER: It was 1600 I believe.

MS. CLARK: Can you tell us whether you used a zoom lens for this picture?

MR. KRUEGER: Yes.

MS. CLARK: What kind is that?

MR. KRUEGER: It was--the model or the zoom--

MS. CLARK: Both.

MR. KRUEGER: Actually it was a sears 70 to 210 millimeter zoom lens.

MS. CLARK: All right. Now, when you had these developed, did you develop them yourself or send them out to a lab?

MR. KRUEGER: I sent them to a photo shop, one-hour photo shop.

MS. CLARK: Any special processing, sir?

MR. KRUEGER: No.

MS. CLARK: Did you use a flash for this?

MR. KRUEGER: No.

MS. CLARK: Were there any lights on in the area during--when you took the photograph?

MR. KRUEGER: Actually I don't think they did put the lights on that day.

MS. CLARK: And did you send the negatives to the Prosecution for us to verify the authenticity of this photograph?

MR. KRUEGER: Yes.

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

MS. CLARK: Your Honor, if I may, I would like to label these photographs with the date and the witness' name.

THE COURT: All right. Why don't you show the label to Mr. Blasier.

MS. CLARK: December 29th, 1990, Mark Krueger.

THE COURT: All right.

MS. CLARK: Actually, Mr. Blasier, do you need this for the elmo? Do you want to question him on it or shall I put it on the board? You don't need it? Do you want one for the elmo?

MR. BLASIER: Yeah. I'll take one of those.

MS. CLARK: Okay. I'm going to ask leave of the court to place that with tape on the board when we've concluded all the testimony so Mr. Blasier can use it during cross.

THE COURT: Certainly. Thank you. Miss Clark, any further questions of Mr. Krueger?

MS. CLARK: Nothing further, your Honor.

THE COURT: All right. Mr. Blasier, cross-examine.

MR. BLASIER: Just one moment. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Mr. Krueger, how are you?

MR. KRUEGER: Good. How you doing?

MR. BLASIER: Good. Now, this picture was taken in December of 1990, correct?

MR. KRUEGER: Correct.

MR. BLASIER: At some point, you sent the photograph to the Prosecutors in this case, correct?

MR. KRUEGER: Yes.

MR. BLASIER: When did you send it to them?

MR. KRUEGER: I believe it was just right before the end of their Prosecution case. It was probably about right around--I think it was like the 1st of July or somewhere maybe between the 1st and the 4th of July.

MR. BLASIER: Now, I take it you had seen Mr. Rubin testify. Is that what prompted you to send the picture?

MR. KRUEGER: No.

MR. BLASIER: What prompted you to send the picture?

MS. CLARK: Objection. Objection, your Honor. Irrelevant.

THE COURT: Overruled.

MR. KRUEGER: What--I just--they said the gloves didn't fit and they were talking about the shrinkage, and I just had this photo, so I just brought it into evidence. I figured it would--

MR. BLASIER: Okay. And so you sent it to them before they rested their case?

MR. KRUEGER: Yes.

MR. BLASIER: Did they follow up and call you and tell you anything or do anything at that point?

MR. KRUEGER: They just said--

MS. CLARK: Same objection. What's the relevance?

THE COURT: Overruled.

MR. KRUEGER: They just said they'd be in touch with me if they needed anything further. If they needed to verify if it was actually the same gloves and if they found out it was, then there would be a chance they might need me to testify.

MR. BLASIER: And they told you that at some point?

MR. KRUEGER: Yes.

MR. BLASIER: Now, how cold was it that day?

MR. KRUEGER: I would say anywhere from 30 to 35 degrees.

MR. BLASIER: And were there a lot of people at this game?

MR. KRUEGER: It was packed.

MR. BLASIER: A lot of people wearing gloves?

MR. KRUEGER: Yeah. I would assume. Actually, I don't know that. That was the last thing on my mind, was gloves. I wasn't looking to see that.

MR. BLASIER: But it was a real cold day?

MR. KRUEGER: Not real cold. For that time of the year, it wasn't really all that cold.

MR. BLASIER: Did you have gloves on?

MR. KRUEGER: No.

MR. BLASIER: Did you take note of any other people's gloves?

MR. KRUEGER: No.

MR. BLASIER: Anything particularly unusual about these gloves that you saw?

MR. KRUEGER: Actually I didn't see them that day.

MR. BLASIER: Okay. When you look at the picture, there's nothing particularly unusual that you can see in there, is there?

MR. KRUEGER: No.

MS. CLARK: Objection. Vague.

THE COURT: Overruled.

MR. BLASIER: Now, I want you to look at the blow-up on the right on the board. Maybe you can step down just a second.

THE COURT: I think that's 605-B.

MR. BLASIER: 605-B. And can you see how it appears to be that there's some sort of a lump or bunching up in the palm area?

MR. KRUEGER: Yeah.

MR. BLASIER: Let me put that on the elmo and see if that shows up. You can go ahead and take your seat and look at the monitor. I'll use the telestrator.

(The witness complies.)

MR. BLASIER: Now, you see the area that I've circled or that Mr. Harris has circled on the monitor?

MR. KRUEGER: Yes.

MR. BLASIER: And that's the area that appears to be a bulge or bunched up in some fashion?

MR. KRUEGER: Yeah.

MR. BLASIER: Do you know what a heat pack is?

MR. KRUEGER: No.

MR. BLASIER: Do you know--have you ever seen the devices that you can break and generates heat, you can put them in your glove?

MS. CLARK: Objection. Calls for speculation, your Honor.

THE COURT: Excuse me. Have you ever seen such a thing?

MR. KRUEGER: Yeah, I've seen them.

MR. BLASIER: Now, did you at any time take notice of Mr. Simpson take anything out of those gloves or put anything in them or did you even bother to notice anything like that?

MR. KRUEGER: Like I said, I never knew--I never saw the glove even. I was just getting a picture of O.J.

MR. BLASIER: Okay. Now, there's no doubt in your mine that those gloves are black, is there?

MR. KRUEGER: From what I can see, I believe them to be black.

MR. BLASIER: All right. Thank you. That's all I have.

THE COURT: Redirect, Miss Clark.

MS. CLARK: Can we please leave that picture up on the elmo?

THE COURT: Yes. All right. I take it, Mr. Blasier, you want that marked as an exhibit?

MR. BLASIER: Please, your Honor.

THE COURT: The printout? All right. Just for simplicity sake, I'm going to make that 605-C.

MR. BLASIER: That's fine.

(Peo's 605-C for id = photograph)

THE COURT: Miss Clark.

REDIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Does that glove appear to be kind of short at the wrist, sir?

MR. BLASIER: Objection, your Honor. The photograph speaks for itself.

THE COURT: Sustained.

MS. CLARK: Why did you select this photograph to send to the Prosecution, sir?

MR. BLASIER: Objection. Irrelevant.

THE COURT: Overruled.

MR. KRUEGER: Why did I select it? I mean, it wasn't like--that was the only photo I had and it was--just seemed like it was evidence to me.

MS. CLARK: Did it seem like this glove fit very much the way the glove fit in court?

MR. BLASIER: Objection. No foundation.

THE COURT: Sustained. That's for the jury to decide.

MS. CLARK: Mr. Blasier asked you why you sent us the photograph. Do you recall that? And you told him because you had heard some people say that the glove didn't fit?

MR. KRUEGER: Right.

MS. CLARK: And what was your opinion, sir?

MR. BLASIER: Objection.

THE COURT: Sustained.

MS. CLARK: Why did you send us the photograph when you heard people say that?

MR. BLASIER: Objection.

THE COURT: Overruled.

MR. KRUEGER: Because of the shrinkage test. I--or--I'm sorry. What was the question again?

MS. CLARK: Why, after you heard that remark, did you send us this photograph, sir?

MR. KRUEGER: Because I thought it didn't fit.

MS. CLARK: Because you thought what?

MR. KRUEGER: The glove did not fit.

MS. CLARK: Okay. And does it look like that glove? Did it look like that glove to you?

MR. BLASIER: Objection.

THE COURT: Sustained.

MS. CLARK: Does this glove look small on him to you, sir?

MR. BLASIER: Objection.

THE COURT: Sustained. Speaks for itself, counsel.

MS. CLARK: Does the glove appear to be up at the palm area, sir?

MR. BLASIER: Objection.

THE COURT: Overruled.

MR. BLASIER: The picture speaks for itself.

THE COURT: Overruled. You asked about bunching.

MR. KRUEGER: It actually appears to be above the palm. I assume the palm is--it's above the palm.

MS. CLARK: Does it appear short to you?

MR. KRUEGER: From the gloves I've worn--I mean, I've never owned a pair of these gloves, so I couldn't say. But from gloves that I've owned, I mean, usually they cover your palm.

MS. CLARK: Then your answer is yes?

MR. KRUEGER: Yes. That they appear short, yes.

MS. CLARK: I have nothing further.

THE COURT: Mr. Blasier.

RECROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Have you ever worn gloves with a heat pack in them or in the palm?

MS. CLARK: Objection. Irrelevant.

THE COURT: Overruled.

MS. CLARK: No facts in evidence, your Honor.

THE COURT: Overruled.

MR. KRUEGER: No.

MR. BLASIER: Now, is there something about, when you heard the testimony, did you hear any testimony to the effect that the evidence gloves in this case were black?

MS. CLARK: Objection. Hearsay.

MR. KRUEGER: Could you rephrase that, please?

MR. BLASIER: Yeah. When you were alerted and decided to send in this picture, had you heard any testimony about the evidence gloves being black?

MR. KRUEGER: No, I hadn't.

MR. BLASIER: Thank you.

MS. CLARK: I have nothing further of this witness. May I ask to pass around the small photograph to the jury?

THE COURT: Yes. All right. Mr. Krueger, thank you very much, sir. You're excused. Thank you for coming to L.A. all right. Mr. Fairtlough, would you hand that, please, to juror no. 1.

(People's exhibit 605 was examined by the jurors.)

THE COURT: All right. Miss Clark, would you summon your next witness, please.

MS. CLARK: The People call Mr. Bill Renken.

THE COURT: All right. I need to allow the jurors to each examine, but I want you to make sure your witnesses are readily available.

(Brief pause.)

THE COURT: Mr. Renken, stand by. We have to let the jurors look at one of the photographs.

(Brief pause.)

THE COURT: All right. Mr. Fairtlough, would you retrieve the photograph, please.

MR. FAIRTLOUGH: Yes, your Honor.

THE COURT: All right. Let the record reflect each of the jurors has had the opportunity to review and evaluate People's exhibit 605. Miss Clark, People may call their next witness.

MS. CLARK: Thank you. People call Mr. Bill Renken.

THE COURT: All right. Mr. Renken, would you face Mrs. Robertson, the clerk.

Bill Renken, called as a witness by the People on rebuttal, was sworn and testified as follows:

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

MR. RENKEN: I do.

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

MR. RENKEN: Name is Bill Renken, B-I-L-L R-E-N-K-E-N.

THE COURT: Miss Clark.

MS. CLARK: Thank you.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Good afternoon, Mr. Renken.

MR. RENKEN: Good afternoon, Miss Clark.

MS. CLARK: Are you a professional photographer, sir?

MR. RENKEN: Yes, I am.

MS. CLARK: And do you have a photo lab of your own?

MR. RENKEN: I work with a custom photo lab, Western Hills Photo, in Cincinnati.

MS. CLARK: Now, directing your attention to the date of January 6th, 1991, can you tell us where you were on that date, sir?

MR. RENKEN: I was at River Front Stadium covering a playoff game between the Cincinnati Bengals and the Houston Oilers.

MS. CLARK: And when you say you were covering the game, where was that?

MR. RENKEN: That was at river front stadium.

MS. CLARK: In Cincinnati?

MR. RENKEN: Cincinnati, yes. Uh-huh.

MS. CLARK: And were you covering it for the purpose of taking photographs in your professional capacity?

MR. RENKEN: That's correct.

MS. CLARK: Can you tell us where you were when you took those photographs?

MR. RENKEN: Uh, I was on the sidelines.

MS. CLARK: What sidelines were you on, sir?

MR. RENKEN: Uh, I was on the Bengals' side.

MS. CLARK: Did you take photographs of the Defendant during that game, sir?

MR. RENKEN: Yes, I did.

MS. CLARK: And how far away from him were you when you took those photographs?

MR. RENKEN: I'd say approximately roughly 10 to maybe 15 feet away.

MS. CLARK: And did you cause one of those photographs to be enlarged?

MR. RENKEN: Yes.

MS. CLARK: People's next in order, your Honor.

THE COURT: 606.

MS. CLARK: Thank you.

THE COURT: Is that correct, Mrs. Robertson?

THE CLERK: Yes.

THE COURT: 606.

(Peo's 606 for id = photograph)

MS. CLARK: Showing you People's 606, sir, can I ask you to tell us, sir, if this is the photograph you took on January 6, 1991 in Cincinnati?

MR. RENKEN: Yes, it is.

MS. CLARK: And does this photograph accurately depict the shot that you took?

MR. RENKEN: Yes, it does.

THE COURT: 1386, can you see that? 165, can you see that, sir?

JUROR NO. 165: Yes, sir.

THE COURT: Thank you.

MS. CLARK: Now, with respect to that particular--did you take photographs throughout the day during that game?

MR. RENKEN: Yes, I did.

MS. CLARK: And did you take some at half time, sir?

MR. RENKEN: Yes, I did.

MS. CLARK: Did you also take some at the end of the game?

MR. RENKEN: Yes, I did.

MS. CLARK: Can you tell us what time this one was taken?

MR. RENKEN: Uh, I'd say it was--obviously, that one is post game after interview. It could be 5:30, 6:00 o'clock Cincinnati time.

MS. CLARK: Can you tell us, sir, whether there was any artificial lighting when you took this photograph?

MR. RENKEN: No, there wasn't.

MS. CLARK: Did you use a flash?

MR. RENKEN: Not on this picture.

MS. CLARK: I show you another photograph--

MS. CLARK: Ask this to be marked People's 606-A.

THE COURT: All right. People's 606-A. Have you shown that to Mr. Blasier?

(Peo's 606-A for id = photograph)

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

THE COURT: All right. 606-A appears to be an 8 by 11.

MS. CLARK: Yes. Thank you, your Honor. I'm sorry. 606-A is an 8 by 11, showing the Defendant holding a microphone turned toward his left. It's in a slightly different posture than the one that is 606.

MS. CLARK: And showing you this photograph, sir, can you tell us if this is another photograph that you took of the Defendant at the Bengals game on January 6, 1991?

MR. RENKEN: Yes, it is.

MS. CLARK: And is this a half-time or post-game photograph if you can tell us?

MR. RENKEN: This is a post game.

MS. CLARK: Your Honor, with leave of the court, I'm going to ask to tape this one to the board as well. When I say this one, 606-A.

THE COURT: 606-A. Mr. Fairtlough.

(Brief pause.)

MS. CLARK: All right. Now, you say you took a photograph of the Defendant during half time as well?

MR. RENKEN: Yes, I did.

MS. CLARK: I'm going to show you photograph that is approximately 8-1/2 by 11 of a--appears to be the Defendant holding an umbrella. This one is a vertical photograph, People's 606-B?

THE COURT: 606-B.

(Peo's 606-B for id = photograph)

MS. CLARK: And a horizontal photograph of the Defendant holding an umbrella, People's 606-C.

THE COURT: And C.

(Peo's 606-C for id = photograph)

MS. CLARK: Showing you People's 606-B and C, sir, can you tell us whether these are photographs that you took?

MR. RENKEN: Yes, they are.

MS. CLARK: And are those accurate depictions of the photographs that you took on that date, January 6th, 1991?

MR. RENKEN: Yes, they are.

MS. CLARK: What color are these gloves, sir?

MR. RENKEN: These have a--brown.

MS. CLARK: May I ask that one of them be put on the elmo for further questioning, your Honor?

THE COURT: Which one?

MS. CLARK: 606-C.

THE COURT: 606-C.

MS. CLARK: Can you tell us first of all, with respect to this photograph, when it was taken during the game?

MR. RENKEN: This was taken at half time.

MS. CLARK: And how far away from him were you when you took this photograph?

MR. RENKEN: Roughly 10, 15 feet.

MS. CLARK: Can you describe the weather?

MR. RENKEN: Very--rain, kind of rainy obviously, damp.

MS. CLARK: Throughout the game?

MR. RENKEN: Yes.

MS. CLARK: Now, for this photograph, sir, did you use a flash?

MR. RENKEN: Yes, I did.

MS. CLARK: And was there any artificial lighting?

MR. RENKEN: The artificial lighting was from the TV. cameras. I mean TV. lights.

MS. CLARK: You mean the lights that are on the video cameras?

MR. RENKEN: On the video cameras or I'm pretty sure they might have had some lights that were on the field.

MS. CLARK: Can you tell us what kind of camera you used?

MR. RENKEN: I use a Nikon. I have two Nikons, 8000A and FA.

MS. CLARK: And was there any special processing that you gave to this photograph?

MR. RENKEN: Nope.

MS. CLARK: Or any of these photographs, sir?

MR. RENKEN: Nope.

MS. CLARK: I'd like to mark one further photograph.

THE COURT: D as in David?

MS. CLARK: Yes.

THE COURT: 606-D.

MS. CLARK: 606-D as in David.

(Peo's 606-D for id = photograph)

MS. CLARK: Do you see what appear to be raindrops or any moisture on those gloves, sir, on this photograph 606-C?

MR. RENKEN: Yes.

MS. CLARK: I'm going to show you 606-D. Can you identify this photograph, sir?

MR. RENKEN: Yes. It was a picture also taken after the game that was used without a flash.

MS. CLARK: And this is another photograph of the Defendant wearing those gloves at that game?

MR. RENKEN: Yes.

MS. CLARK: Was this a post-game or half-time photograph, sir?

MR. RENKEN: Postgame.

MS. CLARK: So there was no artificial lighting for this photograph?

MR. RENKEN: Right.

(Brief pause.)

MS. CLARK: May I ask that the photographs 606-C--b, C and D be passed around to the jury, your Honor?

THE COURT: All right. If you'll hand them to juror no. 7. Thank you.

(Brief pause.)

THE COURT: And juror 7, could you just hand them down as soon as you're finished looking at them? Thank you.

(People's exhibit 606-B, C and D were examined by the jurors.)

THE COURT: All right. Mr. Fairtlough, would you retrieve those photographs, please. And may I see them, please? I'm sorry. Miss Clark. Thank you.

MS. CLARK: Your Honor, I have here photographs 606-E through j that I've marked and shown to counsel. I'm going to show them to the witness and ask if he recognizes them.

(Peo's 606-E through j for id = photographs)

MS. CLARK: Can you tell us, sir, whether you recognize those photographs I've just marked 607-E through J?

MR. RENKEN: Yes, I do.

MS. CLARK: And what are those photographs of, sir?

MR. RENKEN: Pictures of the Defendant.

MS. CLARK: And--

MR. RENKEN: During an interview, post-gram interview.

MS. CLARK: Can you tell us as you review them, sir, if these are all post-game interview photographs that you took?

MR. RENKEN: Yes.

MS. CLARK: Of the same game on January 6, 1991?

MR. RENKEN: Yes, they are.

MS. CLARK: Your Honor, I'd like to place on the board at this time the photographs that I gave to the court if I may. Thank you. And we'll label them. For the record, 606-A is on the board to the far right, your Honor. I'm going to ask to put up also 606-B.

THE COURT: Mr. Renken, would you hand this to Miss Clark, please.

MR. RENKEN: Sure.

MS. CLARK: Thank you, your Honor. Mr. Fairtlough has double stick. And 606-C, your Honor.

MS. CLARK: Now, are all these true and accurate prints of the photographs that you took on January the 6th, 1991, sir?

MR. RENKEN: Yes, they are.

MS. CLARK: And if we may put the label indicating the date and the witness' name below those three photographs, 606-A through C.

THE COURT: You may.

MS. CLARK: Thank you, your Honor.

(Brief pause.)

MS. CLARK: Your Honor, we have a--we have a video clip we would like to show.

THE COURT: With the reporter, please.

(The following proceedings were held at the bench:)

THE COURT: We're over at the sidebar. Miss Clark, isn't the resolution and quality of the photograph much higher than you are going to get off the videotape? Why do you need the videotape?

MS. CLARK: No, it's not true, your Honor. I've seen the videotape. It shows much more clarity of detail. Yeah, you really can see a lot and the movement of the hand. The witness, our expert, had to use this video because it does show the palm bent. So no, the video clip is necessary. Plus, your Honor, let me indicate this. The witness was present and can help to authenticate that video. He was watching the game, pre-game, half time, postgame, and he can tell us that this is the game from which he took the photographs.

MR. BLASIER: I'm going to object, lack of foundation, cumulative. We've got how many? We've got 14, 15 pictures already and this is only the second witness.

MS. CLARK: Your Honor, this witness--

THE COURT: Hold on. Let me listen to Mr. Blasier.

MR. BLASIER: I object. We're not stipulating to a foundation. I think they should show foundation first.

MS. CLARK: There's no foundation issue. We're going to have a representative here, but he can help to lay that foundation by indicating to the jury this is what he saw, he was present, this is the game during which he took his photographs and this is what he saw.

THE COURT: Have you shown this video to Mr. Renken?

MS. CLARK: I don't know if they have or not. Want me to find out?

MR. BLASIER: I think we need to preview it. We have some clips, but--

MS. CLARK: He was obviously there.

THE COURT: Let me have the jurors step out. If you can make the representation to me based on what he saw, he can say this is the game he was at and, "Those are the things that I photographed," that's one thing. But without that foundation--and if you are not certain, we'll have the jury step out and we'll preview the tape and see.

MS. CLARK: All right.

MR. COCHRAN: While we are here, can we find out who the other witnesses are?

THE COURT: I assume more photographers.

MS. CLARK: Yeah.

THE COURT: All right.

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

THE COURT: All right. Ladies and gentlemen, there's something I need to take a look at out of your presence. Let me ask you to just step back in the jury room. We'll call you out in probably five or 10 minutes. And, Mr. Renken, just stay down.

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

THE COURT: Let the record reflect all the jurors have withdrawn from the courtroom, and Mr. Bill Renken is still on the witness stand. Miss Clark, you indicated that you had a videotape--

MS. CLARK: Yes, your Honor.

THE COURT: --that you were going to play for Mr. Renken to see if he can identify what's on the videotape?

MS. CLARK: Correct.

THE COURT: All right. And how long is this videotape?

MS. CLARK: How long is the videotape?

MR. FAIRTLOUGH: It's probably about 7,000, 8,000 frames. So about--

THE COURT: That tells me a lot.

MR. FAIRTLOUGH: It's about four minutes.

THE COURT: Okay. 2,000 a minute? Okay. All right. We'll mark the videotape then Prosecution next in order, 607.

(Peo's 607 for id = videotape)

THE COURT: All right. Let's see the videotape. Mr. Fairtlough.

(At 2:28 P.M., People's exhibit 607, a videotape, was played.)

(At 2:32 P.M., the playing of the videotape concluded.)

THE COURT: All right. Miss Clark.

MS. CLARK: Thank you.

Bill Renken (402), called as a witness by the People, pursuant to evidence code section 402, having been previously sworn, testified as follows:

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Mr. Renken, do you recognize the videotape that is shown in this segment, sir?

MR. RENKEN: Yes, I do.

MS. CLARK: And can you tell us if you were present when the film was being shot?

MR. RENKEN: Yes, I was.

MS. CLARK: With relation to the photographs that you've testified to previously, 606-A through J, were these photographs taken during the game depicted in that videotape?

MR. RENKEN: Yes, they were.

MS. CLARK: And do you recognize the videotape shown as being the game you were present at on January 6th, 1991 when you took the photographs you've already testified to, sir?

MR. RENKEN: Yes, I do.

THE COURT: Mr. Blasier, any voir dire as to this issue?

MR. BLASIER: May I have a minute, your Honor?

(Discussion held off the record between Defense counsel.)

CROSS EXAMINATION BY MR. BLASIER

MR. BLASIER: Mr. Renken, have you ever seen this video before today?

MR. RENKEN: No, I haven't.

MR. BLASIER: Had you ever told you were going to be shown a videotape?

MS. CLARK: Objection. What's the relevance, your Honor?

THE COURT: Overruled.

MR. RENKEN: No, I haven't.

MR. BLASIER: Now, was this video being taken while you were taking your pictures?

MR. RENKEN: Uh-huh. Yes, sir.

MR. BLASIER: And how do you know that?

MR. RENKEN: How do I know?

MR. BLASIER: Yes.

MR. RENKEN: Because I was there.

MR. BLASIER: Well, but--but how did you know this was the Kansas City, Buffalo game that you were at?

MR. RENKEN: Excuse me. That was the Bengals, Oilers game.

MR. BLASIER: All right. Bengals, Oilers.

MR. RENKEN: Excuse me?

MR. BLASIER: How did you know that was the game you were taking pictures at?

MR. RENKEN: I was present.

MR. BLASIER: How do you know that--

MR. RENKEN: The videotape?

MR. BLASIER: Yes.

MR. RENKEN: By the--well, for example, there were Bengal players running behind the Defendant during the interview.

MR. BLASIER: No. I'm asking how, do you know it was the same game you were at versus some other Bengals versus Houston game?

MR. RENKEN: Because it was a play-off game and the weather conditions.

MR. BLASIER: And what tells you about it on this video that this is a play-off game?

MR. RENKEN: Because of the nature of what the Defendant's wearing, the total atmosphere of the video.

MR. BLASIER: The atmosphere. What do you mean by the atmosphere?

MR. RENKEN: People behind it. The weather conditions.

MR. BLASIER: That's all the questions I have.

THE COURT: All right. Counsel, I think there's a sufficient foundation at this point. It appears to be the same game. The post-game interviews with the coach and the quarterback appear to be the same individuals that appear to be positioned in the same manner, appears to be the same point in time as a post game. It appears to be a video at the same time as these photographs were taken. So I think there's a sufficient foundation for the videotape. All right. Let's have the jurors again, please. And, Miss Clark, we'll go to 3:00 o'clock.

MS. CLARK: Okay.

THE COURT: Do you have another witness available after Mr. Renken?

MS. CLARK: Oh, yes, your Honor. We have several.

THE COURT: While we're waiting, let me see counsel at the sidebar with the court reporter. Mr. Cochran, Miss Clark.

(The following proceedings were held at the bench:)

THE COURT: We're over at the sidebar. Mr. Cochran, you indicated Mr. Dennis Fisher is going to be taking a writ for you?

MR. COCHRAN: Yes, your Honor.

THE COURT: I forgot to ask you, is there any--are there any materials that you want my staff to put together to assist you in doing that as I offered to the Prosecution?

MR. COCHRAN: Yes, we do, your Honor. We talked to Dennis.

THE COURT: Why don't you write out a list of those materials you wish to have--

MR. COCHRAN: From you?

THE COURT: --prepared by the court staff.

MR. COCHRAN: Okay.

THE COURT: And submit that to Mrs. Robertson. So I'll have my staff assist in putting that together.

MR. COCHRAN: Okay. Thank you.

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

THE COURT: All right. Thank you very much, counsel. Miss Clark, you may continue.

MS. CLARK: Thank you, your Honor. At this time, your Honor, I would like to mark the video clip as next in order, 607.

THE COURT: 7.

Bill Renken, having been previously sworn, resumed the stand and testified further as follows:

DIRECT EXAMINATION (RESUMED) BY Ms. CLARK

MS. CLARK: Excuse me. Before I do, first of all, Mr. Renken, I'm going to ask you to look at this video and tell us if you recognize what's being--what is depicted in it.

MR. RENKEN: Uh, it's the Defendant doing a commentary about I imagine probably the first half scores, stats, overall commentary the first half of the game.

MS. CLARK: When you say "The game," sir, what game are you referring to?

MR. RENKEN: That was the play-off game with the Bengals vers Oilers.

MS. CLARK: And where was that?

MR. RENKEN: At Riverfront Stadium, Cincinnati.

MS. CLARK: And is this the same game from which you took--you previously identified still photographs that you took in 606-A through J?

MR. RENKEN: Yes, they are.

MS. CLARK: Okay. So this is the videotape of the game that we have the still photographs for from you?

MR. RENKEN: Correct.

MS. CLARK: Can you tell us, noting the umbrella in the Defendant's hand in this frame, sir, what time--at what point in the game this video's shot?

MR. RENKEN: Again, it's at half time and could be 2:45, around that area, 3:00 o'clock.

MS. CLARK: Thank you, sir. I'm going to play the rest of this video, sir, and ask you at the end--at the conclusion of the videotape to--some further questions concerning what you see.

MR. RENKEN: Sure.

(At 2:39 P.M., People's exhibit 607, a videotape, was played.)

MS. CLARK: Can we stop right there?

MS. CLARK: Directing your attention to the Defendant's left hand holding the microphone, sir, can you tell us if you see what appear to be raindrops on that glove?

MR. RENKEN: Yes.

MS. CLARK: Thank you.

(The videotape continues playing.)

MS. CLARK: Do you see rain or what may be rain or some kind of mild snow on the hat and jacket of--what's his last name?

THE COURT: Esiason.

MS. CLARK: I was going to say boomer.

THE COURT: All right. This is at frame 5439.

MS. CLARK: Thank you, your Honor.

MS. CLARK: Do you see--

MR. RENKEN: Yes, I do.

MS. CLARK: Thank you.

(The videotape continues playing.)

MS. CLARK: Stop. Back up one. Right there.

MS. CLARK: Can you see the wrist area of the Defendant's left hand in this frame, 6775, sir?

MR. RENKEN: Yes, I can.

MS. CLARK: Can you see an area of his flesh exposed underneath that wrist area, sir?

MR. RENKEN: No, I don't.

MS. CLARK: That's on the Defendant's right hand, sir.

MR. RENKEN: No. It looks dark in nature.

MS. CLARK: Keep going.

(At 2:44 P.M., the playing of the videotape was concluded.)

MS. CLARK: All right. Do you recognize that--do you recognize that video clip, sir?

MR. RENKEN: Yes, I do.

MS. CLARK: And that's a clip of?

MR. RENKEN: Bengals, Oilers play-off game, January 6th, 1991 at Riverfront Stadium in Cincinnati.

MS. CLARK: Thank you, sir. I have nothing further. If I may ask that Mr. Fairtlough hold up People's 606 so the jury can see it, I think that--

THE COURT: All right.

(People's 606 is exhibited to the jury.)

THE COURT: Thank you, Mr. Fairtlough. Mr. Blasier.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Mr. Renken, good afternoon.

MR. RENKEN: Good afternoon, sir.

MR. BLASIER: January `91 in Cincinnati, that's a pretty cold time of year there, isn't it?

MR. RENKEN: Yes, it is.

MR. BLASIER: And at this game, was it very cold?

MR. RENKEN: It was cold, rainy, moist.

MR. BLASIER: And it's not unusual--I take it there are a lot of other people in the stadium with gloves?

MR. RENKEN: I imagine.

MR. BLASIER: Brown gloves?

MR. RENKEN: All different kinds of gloves.

MR. BLASIER: It's not particularly unusual to have brown gloves in the cold in winter?

MR. RENKEN: I assume.

MR. BLASIER: In fact, did you notice in the video that everybody that was walking around in the background behind Mr. Simpson was also wearing gloves?

MR. RENKEN: I didn't really pay that much of attention, but I assume in that climate of weather, individuals wear gloves of any nature.

MR. BLASIER: Now, just how cold was it that particular day?

MR. RENKEN: Could have been in the 20's, early 30's.

MR. BLASIER: Did you at any time get close enough to Mr. Simpson to determine whether or not he had a heat pack in the palm of his hand under the gloves?

MR. RENKEN: No, I couldn't tell.

MR. BLASIER: You know what I mean by a heat pack?

MR. RENKEN: Yes. I'm familiar.

MR. BLASIER: Have you seen those used at football games to keep your hands warm?

MR. RENKEN: Sort of.

MR. BLASIER: Now, you said you notified the Prosecution that you had pictures when for the first time?

MS. CLARK: Objection. Irrelevant, your Honor.

THE COURT: Overruled.

MR. RENKEN: Do I need to answer that?

MR. BLASIER: Yeah.

MR. RENKEN: It was June around 26th.

MR. BLASIER: That was while they were still presenting their case in chief?

MS. CLARK: Objection, your Honor. That calls for speculation.

THE COURT: Sustained.

MR. BLASIER: June 26th?

MR. RENKEN: Around June 26th. Jack Webster, former employee of Euro Photo sent out a 20 by 30 poster print.

MR. BLASIER: Okay. Now, I think you indicated that some of those pictures are at the beginning of the game and some are at the end of the game. Is that what you indicated?

MR. RENKEN: Half time and at the end of the game, right.

MR. BLASIER: Do you have any from the beginning?

MR. RENKEN: No, I don't.

MR. BLASIER: All right. Now, the ones up here, which one is from half time and which one is at the end of the game?

MR. RENKEN: The ones from half time, sir, are the horizontal, him holding the blue umbrella.

MR. BLASIER: All right. The first one of your pictures on the left?

MR. RENKEN: Yes.

MR. BLASIER: I don't know what the letters are, Judge.

MR. BLASIER: And the one from after the game is the one on the right?

MR. RENKEN: Yes.

MR. BLASIER: All right. Now, was it raining during this whole game?

MR. RENKEN: Pretty much.

MR. BLASIER: Did Mr. Simpson have an umbrella most of the time when he wasn't on camera?

MR. RENKEN: Uh, there were times I remember seeing him without it in the runway area, but then when they did the interviews, except for the postgame, there was no umbrella used. But the half time there was.

MR. BLASIER: Okay. Now, you notice in the picture that you've indicated is from the half time--you can come down here and look at it a little more carefully if you'd like to--that around the wrist area of the gloves, they appear to be bunched up like there's extra leather?

MS. CLARK: Objection. The photograph speaks for itself.

THE COURT: Overruled.

MR. BLASIER: Do you notice that?

MR. RENKEN: Sure.

MR. BLASIER: And that's consistent with what you saw that day?

MR. RENKEN: Well, I wasn't looking at his gloves. I wasn't looking at how they were bound up. I was just shooting the--

THE COURT: All right. Mr. Renken, you need to speak so the jurors can hear you.

MR. RENKEN: I was not so much shooting the gloves. I was shooting the individual at the time.

MR. BLASIER: Now, take a look at the one from the postgame. Do you see also that it's bunched up around the wrist area, there's some extra leather?

MS. CLARK: Objection. Objection. Assumes facts not in evidence. The photograph speaks for itself.

THE COURT: Overruled.

MR. BLASIER: Would you take a look at after the game?

MR. RENKEN: Uh-huh.

MR. BLASIER: Would you agree that in all the pictures that you took that you reviewed, it also shows that there's extra folds of leather in the wrist area?

MS. CLARK: Objection to the characterization "Extra folds," your Honor.

THE COURT: Sustained.

MR. BLASIER: Now, would you like to look at your other pictures and tell me if they appear to be consistent with the ones you've just talked about on the board?

MR. RENKEN: Yes, they are, sir.

MR. BLASIER: Okay. And those are all consistent with what you've told us about?

MR. RENKEN: Yes.

MR. BLASIER: Now, I think you indicated that the video was--the first part of the video was half time?

MR. RENKEN: Yes.

MR. BLASIER: About 2:45 I think you said.

MR. RENKEN: About that time.

MR. BLASIER: Could we have the video started from the beginning, please.

(At 2:50 P.M., People's exhibit 607, a videotape, was played.)

MR. BLASIER: Stop, please. Back it up. Stop there, please.

THE COURT: This is frame 0544.

MR. BLASIER: See the time on the tape, Mr. Renken?

MR. RENKEN: Yes, sir.

MR. BLASIER: That's not half time, is it?

MR. RENKEN: That's not half time?

MR. BLASIER: That's the beginning of the game, isn't it, before the game?

MR. RENKEN: Uh, could be. It's--uh, oh, I see. Okay. The 5--I'm sorry. I didn't understand what--the 544. Okay. That's the actual time of footage, right?

MR. BLASIER: You're the one that identified the videotape. You tell me.

MR. RENKEN: That's correct.

MR. BLASIER: What?

MR. RENKEN: I--that was--that was quite a while--

MR. BLASIER: The video indicates it was 12:03, doesn't it?

MR. RENKEN: Excuse me?

MR. BLASIER: The video indicates 12:03, doesn't it?

MR. RENKEN: Yes.

MR. BLASIER: And that's the pre-game, isn't it?

MR. RENKEN: Oh, okay. Excuse me. That was the pre-game interview.

MR. BLASIER: And can you see down on the right hand by the wrist area, do you see that same bunching up?

MS. CLARK: Objection. Characterization, your Honor.

THE COURT: Sustained.

MR. BLASIER: Does the video here, the right hand area, the wrist, look the same as your pictures?

MR. RENKEN: Yes, they do.

(At 2:51 P.M., the playing of the videotape was concluded.)

MR. BLASIER: That's all I have.

THE COURT: Miss Clark.

MS. CLARK: Nothing further.

THE COURT: Well, give my regards to all my friends in Cincinnati.

MR. RENKEN: I will do, Judge.

THE COURT: Thank you.

MR. RENKEN: You're welcome.

MS. CLARK: Thank you, your Honor. People call Kevin Schott.

THE COURT: All right.

MR. BLASIER: Your Honor, may we approach while this witness is coming up?

THE COURT: Sure.

(The following proceedings were held at the bench:)

THE COURT: Okay. We're over at the sidebar. Mr. Blasier.

MR. BLASIER: This is another witness who saw black gloves. I would object as cumulative at this point. Particularly, black gloves obviously are not the gloves in evidence. So I think they have very little probative value.

THE COURT: Miss Clark.

MS. CLARK: I'm having a hard time hearing because counsel is speaking to Mr. Darden. But we've already withdrawn other cumulative witnesses. This is the only witness I believe from this particular game. Yeah. This is the only witness from this game. What I've done is pared it down considerably so that we don't duplicate.

THE COURT: Let me ask you this though. The objection is, since they're black gloves, not brown gloves, what's the probative value?

MS. CLARK: Goes to habit and custom of wearing gloves during the game. And we'll show a consistent habit of him having worn these gloves during the game. Now, Mr. Schott also is very recent in time, your Honor. Shows that he's still wearing them the end of `93. And don't forget, Nicole bought him two pair. That was the initial proof in People's case in chief. There were two pairs purchased. And the fact they are a different color is very relevant to show that the pairs he winds up with in these videotapes are the ones she bought and are the ones that she bought for him and that the crime scene gloves are one of those pairs.

MR. BLASIER: The proof was not that she bought him two pairs of gloves. There's nothing on the receipt showing they were for him. There's nothing on the receipt showing the color. The fact that he wears gloves as a commentator in the winter is not an unusual habit and custom. That doesn't--I would object to any further--

THE COURT: Objection will be overruled. There is probative value since I don't think it's unusual that somebody would buy a black and a brown pair. I often buy shoes, both black and brown, the same make, depending what I use them for. That's not unusual. But after a couple of brown pairs and a couple of black pairs, it's going to start getting cumulative. This is the most recent one you have. Proceed. Make it quick.

MR. COCHRAN: Judge, do we have any idea who these other witnesses are? We're not ready till Wednesday. You know that.

THE COURT: All right. Let's go.

MS. CLARK: Your Honor, I just wanted to turn over discovery to Mr. Blasier. This was--I asked--I met with these witnesses yesterday for the first time. I asked that a reinterview be done by the investigator because Mr. Schott, who teaches photography, gave me additional information concerning lighting conditions and use of a flash. I asked that this report be turned over immediately this morning of interviews conducted this more.

THE COURT: Do you want to take a break at this point, Mr. Blasier, and take a look at that?

MR. BLASIER: No, if we are just doing photographs.

MS. CLARK: I'm just going to ask him about the photographs. Can you look at that, Bob, see if you care about the additional portion? It's kind of common sense, but--

THE COURT: Are you ready?

MR. BLASIER: Yes.

THE COURT: Let's go.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Miss Clark, you may call your next witness.

MS. CLARK: Thank you. People call Kevin Schott.

THE COURT: All right. Mr. Schott, would you just stand right here by the court reporter, please. Face Mrs. Robertson, our clerk.

Kevin J. Schott, called as a witness by the People on rebuttal, was sworn and testified as follows:

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

MR. SCHOTT: I do.

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

MR. SCHOTT: Kevin J. Schott, K-E-V-I-N J. S-C-H-O-T-T.

THE COURT: All right. Miss Clark. I'm sorry. Do we have a fresh--thank you. Miss Clark.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Mr. Schott, can you tell us what you do for a living?

MR. SCHOTT: I am a teacher.

MS. CLARK: And what do you teach, sir?

MR. SCHOTT: I teach photography.

MS. CLARK: And where is that that you teach photography?

MR. SCHOTT: Orchard Park high school.

MS. CLARK: And where is that?

MR. SCHOTT: In Orchard Park, New York.

MS. CLARK: New York?

MR. SCHOTT: Correct.

THE COURT: How do you spell that? Orchard?

MR. SCHOTT: Orchard Park.

THE COURT: All right. I'm sorry. I misunderstood you.

MS. CLARK: Try and keep your voice up.

MR. SCHOTT: Okay.

MS. CLARK: All right, sir. Directing your attention to the date of November 21st, 1993, can you tell us where you were on that date?

MR. SCHOTT: I was at Rich Stadium in Orchard Park, New York.

MS. CLARK: And for what purpose were you at that stadium?

MR. SCHOTT: To take photographs for my students.

MS. CLARK: Was there a game going on at that time?

MR. SCHOTT: Correct.

MS. CLARK: What game was that?

MR. SCHOTT: The Buffalo Bills against the Indianapolis Colts.

MS. CLARK: And where did that take place?

MR. SCHOTT: At Rich Stadium.

MS. CLARK: In what state?

MR. SCHOTT: New York.

MS. CLARK: Is that upstate New York, sir?

MR. SCHOTT: Western New York.

MS. CLARK: Now, while you were there, sir, did you take photographs?

MR. SCHOTT: Yes, I did.

MS. CLARK: I'm going to show you--and did you send us some photographs, sir? By us, I mean the District Attorney's office.

MR. SCHOTT: Umm, I didn't. My lawyer did.

MS. CLARK: I have a photograph here I'd ask be marked People's next in order, 608.

THE COURT: 608.

(Peo's 608 for id = photograph)

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

MS. CLARK: I show you People's 608 and ask you, sir, if this is the photograph that you sent to the District Attorney's office?

MR. SCHOTT: It is a photo that I sent to my lawyer.

MS. CLARK: Okay. And is that the photograph that you took at the game on November 21st, 1993, in New York?

MR. SCHOTT: Yes, it is.

MS. CLARK: I'm going to show--

MS. CLARK: I ask that the--I have three other enlargements, your Honor, 608--if they could be marked 608-A, B and C. First of all--

THE COURT: So marked.

MS. CLARK: --a, a full face of the Defendant.

THE COURT: Actually appears to be from the waist up.

MS. CLARK: From the waist up, your Honor. Thank you. 608-B, a close-up shot of his right hand holding the glove.

THE COURT: Actually appears it's a white gloved hand holding a microphone is what it appears to be.

MS. CLARK: A black gloved hand on the microphone. And a close-up of the Defendant holding the microphone in his right hand. Let me see if I can distinguish it. That does not go as far down as his waist, People's 608-C.

THE COURT: All right. So marked.

(Peo's 608-A, B and C for id = photographs)

MS. CLARK: Showing you these photographs, sir, that's 608-A, B and C, can you tell us if you recognize these photographs?

MR. SCHOTT: Yes, I do.

MS. CLARK: How do you recognize them?

MR. SCHOTT: They're photographs that I took at the game.

MS. CLARK: Now, can you tell us or where you were when you took these photographs?

MR. SCHOTT: I was on the sideline of the Buffalo Bills and I was on the bills' side.

MS. CLARK: So you were actually on the field?

MR. SCHOTT: Correct.

MS. CLARK: Can you tell us how far away you were from the Defendant when you took these pictures?

MR. SCHOTT: I would say approximately 10 to 14 feet.

MS. CLARK: Do you recall what kind of camera you used?

MR. SCHOTT: A Canon EO630.

MS. CLARK: Did you use a flash, sir?

MR. SCHOTT: No, I did not.

MS. CLARK: Can you tell us what time of day it was when you took these photographs?

MR. SCHOTT: Approximately 11:30.

MS. CLARK: And what were the lighting conditions? What was the weather like?

MR. SCHOTT: Umm, relatively sunny. I--I believe it was a little cool towards the morning.

MS. CLARK: Now, did you send the negatives to us for these photographs for authentication?

MR. SCHOTT: I believe my lawyer did, yes.

MS. CLARK: May I ask that the photographs be taped on to the board, your Honor, and labeled as indicated?

THE COURT: Yes. All right. Mr. Fairtlough.

MS. CLARK: May I ask that--while Mr. Fairtlough is doing that--that we pass around one of these, 608-A?

THE COURT: All right. 608-A, if you'll hand it to juror--hand it to juror no. 165. Let's make him first for a change.

MS. CLARK: Thank you, your Honor.

(People's 608-A was examined by the jurors.)

THE COURT: All right. Miss Clark, just so the record is clear, that's 608-C that you've handed to 165?

MS. CLARK: Thank you, your Honor. Yes.

THE COURT: All right.

MS. CLARK: If we may put the label on the board, your Honor.

THE COURT: Yes.

MS. CLARK: For the record, the label indicates Kevin Schott, 11-21-91, colts versus bills.

MS. CLARK: All right. Now, the development of these photographs, sir--

THE COURT: Excuse me, counsel.

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

(Brief pause.)

THE COURT: All right. The court stands corrected. The photograph that's actually being passed around that 1386 has right now is actually 608-A. All right. The record should reflect that each of the jurors has had an opportunity to view 608-A. Miss Clark.

MS. CLARK: Thank you, your Honor.

MS. CLARK: Did you send these photographs out for development at a lab?

MR. SCHOTT: The film to be developed?

MS. CLARK: I'm sorry. Yes.

MR. SCHOTT: Yes. I sent the film out to be developed.

MS. CLARK: All right. Was there any special processing that you requested on this film?

MR. SCHOTT: No.

MS. CLARK: Thank you. I have nothing further.

THE COURT: Mr. Blasier.

MR. BLASIER: Thank you, your Honor.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Good afternoon, Mr. Schott.

MR. SCHOTT: Good afternoon.

MR. BLASIER: How are you doing?

MR. SCHOTT: Fine, thank you.

MR. BLASIER: November of `93 is when these pictures were taken, correct?

MR. SCHOTT: Correct.

MR. BLASIER: In buffalo?

MR. SCHOTT: In buffalo.

MR. BLASIER: Do you live in buffalo?

MR. SCHOTT: I live in Orchard Park.

MR. BLASIER: Is that near buffalo?

MR. SCHOTT: It's near buffalo.

MR. BLASIER: November in the Buffalo area generally isn't cool. It's generally very, very cold. Was this an unusually warm day or a cold day?

MR. SCHOTT: I'm not a weatherman, but in Buffalo in November, we could have some days where they start out cool. For example, today I believe it's getting warmer, and the afternoons can warm up.

MR. BLASIER: Okay. But in November--I mean, we're just in early September.

MR. SCHOTT: Correct. But in November, you could have some nice days where it's cool in the morning and then it will warm up.

MR. BLASIER: Okay. How many people were in the stadium roughly, if you know? Was it sold out?

MR. SCHOTT: My best guess is yes, it was, but I don't know that for a fact.

MR. BLASIER: A lot of people wearing gloves?

MR. SCHOTT: I don't believe so. I wasn't looking for that.

MR. BLASIER: Okay. So you don't know?

MR. SCHOTT: I really don't know.

MR. BLASIER: Is there anything particularly unusual about wearing gloves on that day?

MR. SCHOTT: No.

MR. BLASIER: Do you have men's gloves?

MR. SCHOTT: Yes, I do.

MR. BLASIER: Now, are these the only pictures that you took?

MR. SCHOTT: No, they're not.

MR. BLASIER: All right. And where are the other pictures?

THE COURT: I take it you're referring to that afternoon?

MR. BLASIER: Yeah. I meant that afternoon of Mr. Simpson.

MR. SCHOTT: I--of Mr. Simpson?

MR. BLASIER: Yes.

MR. SCHOTT: I believe the District Attorney has what I printed up.

MR. BLASIER: Okay. But these are the ones that you've identified here in court today, and that's actually only two different pictures, is it? Am I correct in that?

MR. SCHOTT: Correct.

MR. BLASIER: Now, I think you indicated you have a lawyer?

MR. SCHOTT: Yes, I do.

MR. BLASIER: Dealing with these pictures?

MR. SCHOTT: Yes, I do.

MR. BLASIER: When did you send these pictures to the Prosecution?

MS. CLARK: Objection. Vague. Which ones?

THE COURT: Sustained. Rephrase the question.

MR. BLASIER: When did you send the pictures that you took of Mr. Simpson to the Prosecution?

MS. CLARK: Objection. Vague.

THE COURT: Overruled.

MR. SCHOTT: I talked to my friend, who happens to be my lawyer, and I believe it was somewhere between June 23rd and June 26th.

MR. BLASIER: Of this year?

MR. SCHOTT: Of this year, 1995.

MR. BLASIER: Did you try and sell them to inside edition before you sent them to the Prosecution?

MR. SCHOTT: I did not try to sell them to inside edition.

MR. BLASIER: Did your attorney on your behalf try to sell them?

MR. SCHOTT: I don't believe he did either. I'm not sure.

MR. BLASIER: Was contact made with inside edition to try and negotiate the sale of these pictures?

MR. SCHOTT: It may have been. I don't know.

MR. BLASIER: Did you authorize him to do that?

MR. SCHOTT: No, I did not.

MR. BLASIER: He did it on his own?

MS. CLARK: Objection. Speculation.

THE COURT: Sustained.

MR. BLASIER: Were you aware your agent, your attorney, was attempting to sell these pictures?

MS. CLARK: Objection. That mischaracterizes--misstates the testimony.

THE COURT: Sustained. Rephrase the question.

MR. BLASIER: Do you have any knowledge of your agent, your attorney, trying to sell these pictures on your behalf?

MS. CLARK: Objection. Misstates the testimony.

THE COURT: Overruled.

MR. SCHOTT: I don't know what he was doing. I just submitted the photos to him and I asked him to look into it for me.

MR. BLASIER: Look into what?

MR. SCHOTT: Look into--

MR. BLASIER: How much you could get for them?

MR. SCHOTT: No. I asked him to look into sending to the Prosecution to share the evidence.

MR. BLASIER: When did he contact inside edition if you know?

MR. SCHOTT: I don't know if he did.

MS. CLARK: Objection, your Honor. Assumes facts not in evidence.

THE COURT: Sustained.

MR. BLASIER: Who is your lawyer?

THE COURT: He's indicated he doesn't know what happened.

MR. BLASIER: Who is your lawyer?

MR. SCHOTT: Robert Lee.

MR. BLASIER: Is he here with you?

MR. SCHOTT: Yes, he is.

MR. BLASIER: Where is he? In the courtroom?

MR. SCHOTT: No, he isn't.

MR. BLASIER: Upstairs?

MR. SCHOTT: Yes, he may be.

MR. BLASIER: All right. Will he be around after court today?

MR. SCHOTT: I believe so.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: That's all I have at this time.

THE COURT: All right. Any redirect, Miss Clark?

MS. CLARK: Yes, thank you, your Honor.

REDIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Are you paying Mr. Lee, sir, for his services?

MR. SCHOTT: No. No, I'm not.

MS. CLARK: How long have you known him?

MR. SCHOTT: A long time. I can't put a time on it.

MS. CLARK: Is he your friend, sir?

MR. SCHOTT: Yes, he is.

MS. CLARK: Is he acting as your agent in any capacity?

MR. SCHOTT: He may be. I don't know. He's just a good friend helping me out.

MS. CLARK: Now, you said that you took other photographs other than these that depict Mr. Simpson and the gloves?

MR. SCHOTT: Not in the gloves, no. I have other photos of Mr. Simpson.

MS. CLARK: Okay. In which he's not wearing gloves?

MR. SCHOTT: Correct.

MS. CLARK: And did you--did that involve another event during this game?

MR. SCHOTT: Yes, it did.

MS. CLARK: Did you show those--

MR. BLASIER: Objection. May we approach?

THE COURT: Let's wind it up.

MS. CLARK: Did you show those photographs to me yesterday, sir?

MR. SCHOTT: Yes, I did.

MS. CLARK: And was that the first time you shared those photographs with the Prosecution?

MR. SCHOTT: I believe it was.

MS. CLARK: And where do you teach photography, sir?

MR. SCHOTT: At Orchard Park high school.

MS. CLARK: Thank you. I have nothing further.

THE COURT: Mr. Blasier.

MR. BLASIER: No questions.

THE COURT: All right. All right. Mr. Schott, thank you very much, sir. You're excused. Thank you for coming out. All right. Ladies and gentlemen, we're going to take our recess, mid-afternoon recess. Remember all my admonitions to you. We'll be in recess for 15 minutes. All right. Thank you, sir.

(Recess.)

(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. Mr. Blasier.

MR. BLASIER: Your Honor, two things. I asked the Prosecution right after we broke if I could talk to Mr. Lee, Mr. Schott's attorney, because I wanted to ask him one or two questions. I'm waiting for that. I also asked Vannatter to bring over item 94, which was a glove taken from Mr. Simpson's residence, which I would like lodged with the court. I don't know if I'll use it. Detective Vannatter needs it to be marked by the court so he can account for it.

THE COURT: All right. We'll mark the glove then--Miss Clark, we'll mark it People's 609 for identification purposes.

MS. CLARK: 609?

THE COURT: 609.

(Peo's 609 for id = glove)

Mr. Vannatter: Should I give it to Mrs. Robertson?

THE COURT: Yes, please, detective. And is it a glove or pair of gloves?

MS. CLARK: A glove.

THE COURT: A glove. A glove. A glove and paper bag. Do you want to see that first?

MR. COCHRAN: May I?

THE COURT: Miss Clark, have you seen the contents?

MS. CLARK: Yeah. A long time ago, your Honor. We all have.

MR. GORDON: Your Honor, a very quick scheduling matter. I've filed P&A's on Dr. Dutton's testimony with the court that Mr. Bailey has and counsel. I just want to know when the court wants to address that matter. Is that with the other--

THE COURT: Haven't even seen it yet.

MR. GORDON: No, I understand. This afternoon?

THE COURT: No. I'll take a look at it at the conclusion of the court day, see what it is and see when it is I want to do it.

MR. GORDON: That's what I thought. Not this afternoon?

THE COURT: No. Not this afternoon.

MR. GORDON: Okay.

THE COURT: We have RFLP set for this afternoon. All right. Miss Clark, is Mr. Lee available to chat with Mr. Blasier before we move on?

MS. CLARK: Yes, your Honor. I asked immediately at the break when Mr. Blasier informed me, he insisted on speaking to him, that I asked he be called down, and it just took a while, but he's coming down. He will speak with Mr. Blasier.

THE COURT: All right. Mr. Blasier, you want to chat with him briefly before you move on?

MR. BLASIER: Yes. Also, if we could have the next witness so I can make my cumulative objection.

MS. CLARK: Okay. Mr. Blasier is saying that, your Honor, because I already told him that--I voluntarily have eliminated three more witnesses to black gloves, and I would propose to conclude the glove presentation with Stewart West and Mike Romano and Debra Guidera.

THE COURT: All right. Are these all brown glove people?

MS. CLARK: No. Two are black glove and the last one is brown glove.

THE COURT: All right. Why are we doing black gloves?

MS. CLARK: Because of the--because those particular photographs show a fit that is very significant for the witness, Richard Rubin. These are very brief. Neither one of them involves video and they're very late in time. One's December of `93. The other one's January `94. You know something, your Honor? We have eliminated from our list now seven witnesses that we had proposed to call because the court keeps indicating that it's going to rule these things cumulative. We have pared it back now to the bare bones. This testimony is not, in fact, taking very long.

THE COURT: Be that as it may, it still doesn't mean it's not cumulative. One, we've got brown gloves, not black gloves. I mean, wouldn't you have put on your most recent black glove person first?

MS. CLARK: No, I didn't because I need to lay a foundation in the beginning and at the end, your Honor. No. No. This is important. This is important, your Honor, because Nicole Brown bought him these gloves--

MR. COCHRAN: I object to that.

MS. CLARK: --in December of `90--of `90. That's right. She bought them on December 18th of 1990. It is important to show him wearing the gloves close to the date of purchase as well as close to the date of the murders, and that's what we're attempting to do; is show a course of wearing these gloves from the time they were purchased to the time of the murders. And that's obviously important, your Honor.

MR. BLASIER: Your Honor, don't they have an early one? And Mr. Schott is December of `93. That's a late one. You have two sets of black pictures.

MS. CLARK: That's November of `93.

THE COURT: What's your latest black glove?

MS. CLARK: May I show you the photographs we want to show, your Honor?

THE COURT: No. What is your latest black glove, counsel?

MS. CLARK: January of `94.

THE COURT: And who is that?

MR. BLASIER: Mr. Romano.

MS. CLARK: That's Mr. Romano. And it's important. May I show you, your Honor, the photographs that we have?

THE COURT: Well, why do we need--first of all, the gloves that are in evidence are the brown gloves, not the black gloves.

MS. CLARK: I understand that, your Honor. But the nature of the fit is very important obviously in this case and I would like to show you the photographs we're talking about so you will appreciate what I mean.

THE COURT: Thank you. All right. Which one is which? One, Mr. Simpson appears to be wearing an NBC turtleneck.

MS. CLARK: The horizontal photograph in which he's wearing the turtleneck that's taken indoors is the January `94 photograph, and you can see the Aris label in it. You can also see the cashmere lining in that photograph.

MR. BLASIER: Your Honor, I don't dispute you can see the label, but they're black.

MS. CLARK: There were two pair purchased in December, that was December I believe 18th of 1990 by Nicole Brown.

MR. BLASIER: They already have black gloves to make that argument, your Honor.

THE COURT: All right. Now, the vertical photographs where Mr. Simpson appears to be holding a lineup and it appears he's putting the gloves on or taking the gloves off.

MS. CLARK: No, your Honor. He's holding--he has one hand against his chest and it shows the very short and tight fit of that glove. The other hand is in front of it holding papers, and that's December of `93.

MR. BLASIER: You can see that one bunched around his wrist and he's pushing the fingers in it. I mean--

MS. CLARK: One hand is not touching the other.

MR. BLASIER: They're black gloves.

MS. CLARK: Also, you should note on the wrist of that particular photograph, your Honor, you can see the kind of stitching, which is important to the testimony of Richard Rubin, the expert on this matter, and the bunching that Mr. Blasier continually refers to is going to be explained by Mr. Rubin as well as being reflective of the fact that it's very thin leather that rolls and puckers, which is consistent with the Aris Light glove. I would also point out to the court that those two photographs that are most close in time to the murders of the black gloves show features that none of the other ones do, both of them. They show the manner of fit and the stitching of the wrist area as well as the lining and the--on the other photograph, the lining and the Aris Light tag.

MR. BLASIER: It sounds like they saved what they thought was the most probative for last to avoid a cumulative objection to me.

MS. CLARK: No, your Honor. We're showing habit and custom of wearing these gloves that is consistent over a period of time both early on and late on. Obviously, there are a great deal more we could have shown, but we voluntarily excised them from our presentation. And if you'll look at the photographs that we've already presented, your Honor, they show the hand at various positions, one with the palm out, one with the palm closed, which shows the fit when the fist is closed and shows how short it is and another set of photographs shows how short it is on the wrist.

THE COURT: All right. The one that is the horizontal photograph that has the label coming out, the one that depicts the wrist area and what appears to be the lining, that is a different perspective than the others.

MS. CLARK: The other black photograph, your Honor, is also a different perspective from the others showing the stitching on the wrist. I mean, it's very important because we have two sets of gloves purchased in December of 1990 of the same type, and his ability to identify both the black and the brown gloves in these photographs as the same type is of obvious probative value. To the extent that the court cuts photographs out, the court is chipping away from the credibility of the witness.

THE COURT: What other witnesses do you have with brown gloves?

MS. CLARK: One more witness on brown gloves plus video.

MR. BLASIER: I haven't seen the video. I think that's part of the Guidera video expected.

THE COURT: What video is this?

MR. BLASIER: The Guidera--the same game that Miss Guidera is going to testify about.

MS. CLARK: That's not true.

MR. BLASIER: I still don't have that. I don't think I have that.

THE COURT: All right is Mr. Lee here?

MR. BLASIER: I believe Mr. Lee is here.

THE COURT: All right.

MS. CLARK: Your Honor, may I indicate to the court the videotape we are talking about was subpoenaed.

THE COURT: Let's not--let me figure these things out first. All right. Miss Clark, do you anticipate the direct examination will be the same, five minutes?

MS. CLARK: That's right, your Honor.

THE COURT: Did you take these photos, where and when?

MS. CLARK: Exactly.

THE COURT: Five questions?

MS. CLARK: That's right. There's no video with these. Just pictures.

THE COURT: All right. I'll overrule the objection. They do show different perspectives, especially the label.

MS. CLARK: Thank you, your Honor.

THE COURT: All right. Mr. Blasier, you want to take a few moments to talk to Mr. Lee? And for the record, Miss Clark, who are the witnesses that you've excised?

MS. CLARK: Yes. For the record, Karen Brown, James Chegia, Robert Sieb. That was most recently. Prior to that, flash Gordon Bella, Richard Roman, Krisman. I forgot the first make. Last name is Krisman, your Honor.

THE COURT: Is Mr. Schott available in the event Mr. Blasier wants to recall him?

MS. CLARK: I believe so. I believe he's upstairs.

THE COURT: How about in an abundance of caution, why don't we have him escorted down so we can save some time in the event Mr. Blasier wants to recall him for a question or two. Mr. Fairtlough, why don't you accomplish that.

(Brief pause.)

THE COURT: All right. Mr. Fairtlough, while we are waiting, can I see 608 again, please?

MR. FAIRTLOUGH: Is that 608-A?

THE COURT: Any of them. Anything that has to do with 608. That's the shot I can't see. It's turned away. All right. Thank you.

(Brief pause.)

THE COURT: All right. Mr. Blasier.

MR. BLASIER: Yes, your Honor. I'm prepared to go to the next witness. However, we may wish to call Mr. Lee out of order so that he doesn't have to fly back at some other time, but we're still considering that.

THE COURT: Okay.

MS. CLARK: People will object to that, your Honor. They have surrebuttal. If they think he's relevant, let them make an offer.

THE COURT: All right. Let's proceed.

MS. CLARK: Thank you.

THE COURT: Next witness.

MS. CLARK: People call Mr. Stewart West.

THE COURT: All right. Let's have the jurors, please. Stewart West?

MS. CLARK: Yes, your Honor. Oh, I think we need the jury.

THE COURT: Minor detail. Hold on. We are still waiting. Why don't you have a seat.

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

THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we've been rejoined by all the members of our jury panel. Miss Clark, you may call your next witness.

MS. CLARK: Thank you, your Honor. People call Mr. Stewart West.

THE COURT: All right. Mr. West, would you step over here next to the court reporter, please, and face the clerk.

Stewart West, called as a witness by the People on rebuttal, was sworn and testified as follows:

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

MR. WEST: Yes, I do.

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

THE COURT: All right. Mr. West, would you please state and spell your name.

MR. WEST: My name is Stewart West, S-T-E-W-A-R-T W-E-S-T.

THE COURT: Thank you, sir. Miss Clark.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Mr. West, can you tell us if you are a professional photographer, sir?

MR. WEST: I am not right now, no.

MS. CLARK: Were you at some time?

MR. WEST: Yes, I was.

MS. CLARK: When?

MR. WEST: Started in 1989.

MS. CLARK: Until?

MR. WEST: Until about November of last year.

MS. CLARK: `94?

MR. WEST: Yes.

MS. CLARK: Directing your attention, sir, to the date of December 25th, 1993, can you tell us if you were a professional photographer at that time?

MR. WEST: Yes, I was.

MS. CLARK: Can you tell us where you were on that date?

MR. WEST: I was at Candlestick Park in San Francisco.

MS. CLARK: And for what purpose, sir?

MR. WEST: I was taking pictures of the San Francisco 49er's, Houston Oilers game?

MS. CLARK: And where were you in terms of in the stadium?

MR. WEST: I was on the sideline on the 49er's side.

MS. CLARK: So were you on a level on the field itself?

MR. WEST: Yes, I was.

MS. CLARK: Did you see the Defendant there when you were there?

MR. WEST: Yes, I did.

MS. CLARK: About how far away from him were you?

MR. WEST: I was approximately 30 feet away from him.

MS. CLARK: And he was on the field as well I take it?

MR. WEST: Yes, he was.

MS. CLARK: Was there any artificial lighting at that time?

MR. WEST: Not that I remember, no.

MS. CLARK: And you took photographs of him at that game?

MR. WEST: Yes, I did.

MS. CLARK: Your Honor, I have here a photograph that I'd like to be marked People's 610.

THE COURT: All right. People's 610.

MS. CLARK: A small photograph.

(Peo's 610 for id = photograph)

MS. CLARK: Sir, showing you People's 610, can you tell us if you recognize what I've shown you?

MR. WEST: Yes, I do.

MS. CLARK: What is that?

MR. WEST: That is my photograph.

MS. CLARK: Is that the photograph you took of the Defendant on December 25th, 1993?

MR. WEST: Yes, it is.

MR. BLASIER: May I see it?

MS. CLARK: Did you send it to the District Attorney's office, sir?

MR. WEST: Yes, I did.

MS. CLARK: May I put it on the elmo, your Honor?

THE COURT: You may.

MS. CLARK: I have here, your Honor, two enlargements I'd ask to be marked People's 610-A. First one as 610-A shows the Defendant--it's an enlargement of photo 610, your Honor.

(Peo's 610-A for id = photograph)

MS. CLARK: Show you People's 610-A and ask you if you recognize what's shown there.

MR. WEST: Yes, I do.

MS. CLARK: What is that?

MR. WEST: That is a photograph that I have taken.

MS. CLARK: And is that an enlargement of the photograph that was shown to you just now that is up on the screen as People's 610?

MR. WEST: Yes, it is.

MS. CLARK: True and accurate copies, are they, sir?

MR. WEST: Yes.

MS. CLARK: Showing you People's 610-B, does that appear to be a further enlargement focusing in more on the gloves of the same photograph?

(Peo's 610-B for id = photograph)

MR. WEST: Yes, it is.

MS. CLARK: Also a true and accurate copy of your photograph, sir?

MR. WEST: Yes, ma'am.

MS. CLARK: And did you send the negatives to the District Attorney's office for authentication to make sure that these were accurate photographs?

MR. WEST: Yes, I did.

MS. CLARK: All right. Your Honor, I'll just simply ask that these be affixed to the board, the photograph 610 and--A and B with a label.

THE COURT: All right. Why don't you show them to Mr. Blasier first.

MS. CLARK: And with a label indicating, your Honor, Stewart West, 12-25-93, 49er's versus Houston Oilers.

THE COURT: Yes.

MS. CLARK: Thank you, your Honor.

MS. CLARK: And this game, was it played in San Francisco, sir?

MR. WEST: Yes.

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

MS. CLARK: Nothing further.

THE COURT: Mr. Blasier.

MR. BLASIER: Thank you, your Honor.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Good afternoon, Mr. West. How are you?

MR. WEST: Fine, thank you.

MR. BLASIER: Mr. West, I'm going to ask you to take a look at the blow-up on the board here. And can you see in the picture where the right glove appears to be tucked under around the wrist area or actually above the wrist area?

MR. WEST: Yes, I can.

MR. BLASIER: You have no way of knowing from this photograph how far that's tucked under, do you?

MR. WEST: No, I don't.

MR. BLASIER: Do you have any pictures showing the inside of the glove?

MR. WEST: No, I don't.

MR. BLASIER: Any showing any labels?

MR. WEST: No.

MR. BLASIER: Any lining?

MR. WEST: No.

MR. BLASIER: Now, you provided the Prosecution with another picture in addition to this one, didn't you?

MR. WEST: That's correct.

MR. BLASIER: Your Honor, I'd like to have this marked as Defendant's next.

THE CLERK: 1371.

THE COURT: I'm sorry?

THE CLERK: 1371.

THE COURT: 1371.

(Deft's 1371 for id = photograph)

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

MR. BLASIER: 1371?

THE COURT: Yes.

MS. CLARK: We furnished Mr. Blasier with one that doesn't have holes in it.

THE COURT: Thank you.

MR. BLASIER: Now, Mr. West, take a look at 1371. Is that a picture of the same gloves?

MR. WEST: Yes, it is.

MR. BLASIER: Same day?

MR. WEST: Yes.

MR. BLASIER: Run same time?

MR. WEST: Yes.

MR. BLASIER: May I put this on the elmo, your Honor, please?

THE COURT: You may.

MR. BLASIER: Mr. West, do you see how the gloves go all the way back on the wrist?

MR. WEST: Yes.

MS. CLARK: Objection. That calls for conclusion.

THE COURT: Overruled.

MS. CLARK: Calls for speculation, your Honor.

THE COURT: Overruled.

MR. BLASIER: Did the Prosecution tell you they were only going to put in one of your pictures?

MR. WEST: No.

MS. CLARK: Objection.

MR. BLASIER: No further questions. I'm sorry.

MS. CLARK: Didn't the court rule that some of these were cumulative?

THE COURT: Overruled.

MR. BLASIER: May I have a minute, your Honor?

(Brief pause.)

MR. BLASIER: One final question.

MR. BLASIER: These are black gloves, aren't they?

MR. WEST: As far as I can tell, yes.

MR. BLASIER: Thank you.

THE COURT: Any redirect?

(Brief pause.)

MS. CLARK: I have nothing further.

THE COURT: All right. Mr. West, thank you very much for coming in. You're excused, sir. Miss Clark.

MS. CLARK: Thank you. Your Honor, could Mr. Fairtlough please put the small photograph up on the board as well as People's 610?

THE COURT: Yes.

MS. CLARK: Thank you. People call Michael Romano.

Michael Romano, called as a witness by the People on rebuttal, was sworn and testified as follows:

THE COURT: All right. Mr. Romano, would you come over here and stand by the court reporter, please, and face the clerk.

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

MR. ROMANO: Yes, I do.

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

MR. ROMANO: Michael Romano, M-I-C-H-A-E-L R-O-M-A-N-O.

THE COURT: Mr. Romano, sit back and why don't you pull the microphone closer to you. Thank you, sir. Miss Clark.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Mr. Romano, are you a freelance--excuse me. Are you a photographer, sir?

MR. ROMANO: Yes, I am.

MS. CLARK: And what kind of photographer are you?

MR. ROMANO: Freelance photographer.

MS. CLARK: And directing your attention, sir, to the date of January 15th, 1994, what was your occupation at that time?

MR. ROMANO: I was a photographer.

MS. CLARK: And on January 15th, 1994, sir, where were you?

MR. ROMANO: I was in buffalo, New York.

MS. CLARK: And why were you there?

MR. ROMANO: I was photographing the Los Angeles Raiders football game against the Buffalo Bills.

MS. CLARK: Can you tell us, sir, where you--if you took any photographs of the Defendant on that date on January--in January of 1994?

MR. ROMANO: Yes, I did.

MS. CLARK: And where did you take photographs of him?

MR. ROMANO: I shot a photograph in the media room after the football game.

MS. CLARK: And where is the media room, sir?

MR. ROMANO: The media room is adjacent to the locker room where they bring the players after the game.

MS. CLARK: And now, the photograph that you took of the Defendant, did you sell that photograph to someone, sir?

MR. ROMANO: Yes, I did.

MS. CLARK: Who did you sell it to?

MR. ROMANO: The National Enquirer.

MS. CLARK: Are you here under subpoena, sir?

MR. ROMANO: Yes, I am.

MS. CLARK: You did not ask to come here; is that right?

MR. ROMANO: No, I did not.

MS. CLARK: I'm going to show you a photograph--

MS. CLARK: Your Honor, People's 611 and 611-A.

THE COURT: All right. 611 and 611-A.

(Peo's 611 and 611-A for id = photographs)

MS. CLARK: Showing you 611, sir, can you tell us if you recognize the photograph that I'm showing you?

MR. ROMANO: Yes, I do.

MS. CLARK: And what is that?

MR. ROMANO: That is the photograph that I shot.

MS. CLARK: And you shot this photograph you told us in the media room, that's just a room just outside the locker room?

MR. ROMANO: Right. Where they hold post-game interviews.

MS. CLARK: Now, was that in New York?

MR. ROMANO: Buffalo, New York.

MS. CLARK: And the photograph that's been marked People's 611-A, can you tell us if that is an enlargement of the portion of the photograph in 611 that shows the Defendant's left hand?

MR. ROMANO: Yes, it is.

MS. CLARK: And is it an accurate enlargement, sir?

MR. ROMANO: Yes, it is.

MS. CLARK: If I may show this on the elmo, your Honor.

THE COURT: You may. Which photograph is this?

MS. CLARK: 611 first, your Honor.

THE COURT: All right. Mr. Romano, just look at your monitor and see if you recognize it. Miss Clark.

MS. CLARK: Thank you.

MS. CLARK: Now, this photograph, sir, is this the photograph you took of the Defendant on January 15th, 1994, in the media room?

MR. ROMANO: Yes, it is.

MS. CLARK: And where--how far away from him were you when you took this photograph, sir?

MR. ROMANO: About a distance of three to five feet.

MS. CLARK: Showing you People's 611-A, from three to five feet away, sir, did you use a zoom lens then?

MR. ROMANO: No, I didn't. I used a 50-millimeter lens.

MS. CLARK: Do you recall what time it was?

MR. ROMANO: Oh, it was about 4:30 in the afternoon.

MS. CLARK: Did you use a flash, sir?

MR. ROMANO: Yes, I did.

MS. CLARK: Do you recall what the film speed was?

MR. ROMANO: 200 ASA.

MS. CLARK: Now, did you send us negatives so that we could verify the accuracy of the print?

MR. ROMANO: Yes, I did.

MS. CLARK: And when you sent your negatives to a lab for processing, did you ask for any special processing?

MR. ROMANO: No, I don't.

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

MS. CLARK: Do you see--strike that.

MS. CLARK: I have nothing further.

THE COURT: Mr. Blasier.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Mr. Romano, good afternoon.

MR. ROMANO: Good afternoon, sir.

MR. BLASIER: This was in buffalo?

MR. ROMANO: Buffalo, New York, yes.

MR. BLASIER: In January of `94, correct?

MR. ROMANO: Yes, it was.

MR. BLASIER: What was the temperature?

MR. ROMANO: It was about 30, 35 below zero.

MR. BLASIER: Very cold, wasn't it?

MR. ROMANO: Very uncomfortable.

MR. BLASIER: A lot of people wearing gloves?

MR. ROMANO: Yes, sir.

MR. BLASIER: A lot of people with hand warmers?

MR. ROMANO: Yes, sir.

MR. BLASIER: The kind of hand warmers that slip under a glove in the palm?

MR. ROMANO: I wouldn't be able to see that, but I imagine.

MR. BLASIER: So you have no way of knowing whether Mr. Simpson had one of those under his palm there, do you?

MR. ROMANO: No, I don't.

MR. BLASIER: Could we have that back on the elmo, please?

MR. BLASIER: Now, those gloves are black, aren't they?

MR. ROMANO: Yes.

MR. BLASIER: The bulkiness around the fingers, is that consistent with your recollection of what they looked like at the time?

MS. CLARK: Well, objection. Assumes facts not in evidence, he has an independent recollection.

THE COURT: Overruled.

MS. CLARK: No foundation.

THE COURT: Overruled.

MR. ROMANO: Yes.

MR. BLASIER: And the rolled-up area, extra leather at the wrist there?

MR. BLASIER: Objection. Characterization.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: That's all.

THE COURT: Miss Clark.

MS. CLARK: Could you put that back up?

REDIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Sir, what--do you see that white oblong thing sticking out of the edge of the wrist area of that glove?

MR. ROMANO: Yes, I do.

MS. CLARK: You see the arrow pointing to it, sir?

MR. ROMANO: Yes, I do.

MS. CLARK: Does that appear to be the tag attached to the glove?

MR. BLASIER: Well, objection. The photograph speaks for itself, no foundation.

THE COURT: Sustained.

MS. CLARK: What does that appear to be to you, sir?

MR. BLASIER: Objection. Speculation.

THE COURT: Overruled. You can answer the question.

MR. ROMANO: It appears to be some sort of tag attached to the glove.

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

MS. CLARK: Thank you. Nothing further.

RECROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: You can't read anything on that, can you?

MR. ROMANO: Looking at the photograph, no, I can't read anything.

MR. BLASIER: Thank you.

MS. CLARK: Nothing further.

THE COURT: Is that it?

MS. CLARK: Yes. May I ask that these photographs also be attached to the board and labeled, your Honor?

THE COURT: Yes. Do you have any further questions for Mr. Romano?

MS. CLARK: Nothing further.

THE COURT: Mr. Blasier, anything further for Mr. Romano?

MR. BLASIER: No.

THE COURT: All right. Mr. Romano, thank you very much for coming out, sir.

MR. ROMANO: Thank you.

MS. CLARK: People call Mr. Debra Guidera. Ms. Did I say Mr.?

THE COURT: You did.

Debra Guidera, called as a witness by the People on rebuttal, was sworn and testified as follows:

THE COURT: Miss Guidera, would you step around here, stand over by the court reporter, face the clerk.

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

MS. GUIDERA: I do.

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

MS. GUIDERA: Debra Guidera, D-E-B-R-A G-U-I-D-E-R-A.

THE COURT: Miss Clark.

MS. CLARK: Thank you, your Honor.

DIRECT EXAMINATION BY Ms. CLARK

MS. CLARK: Miss Guidera, can you tell us, are you a professional photographer, ma'am?

MS. GUIDERA: No.

MS. CLARK: Have you ever been one?

MS. GUIDERA: No.

MS. CLARK: Directing your attention, ma'am, to the date of December 12th, 1993, can you tell us where you were on that date?

MS. GUIDERA: I was at Giant Stadium in East Rutherford, New Jersey.

MS. CLARK: And why were you there?

MS. GUIDERA: Umm, I was helping out a friend as a photo messenger that day.

MS. CLARK: Can you tell us what the weather was like that day?

MS. GUIDERA: It was very cold.

MS. CLARK: Now, while you were there--the friend that you were helping, what did he do there?

MS. GUIDERA: Umm, he works for the associated press.

MS. CLARK: Was he a photographer?

MS. GUIDERA: Yes.

MS. CLARK: And can you tell us where you were in the stadium?

MS. GUIDERA: I was on the football field.

MS. CLARK: Were you at the sidelines?

MS. GUIDERA: Uh, yes.

MS. CLARK: On whose side?

MS. GUIDERA: On both sides. Oh, actually on the colts side as--when I took the picture.

MS. CLARK: Okay. Now, when you say "The picture," did you have a camera with you that day?

MS. GUIDERA: I did, but it wasn't mine.

MS. CLARK: Whose was it?

MS. GUIDERA: Umm, it was my friend's.

MS. CLARK: Now, I have here a photograph, your Honor, ask that it be marked People's 612.

THE COURT: All right. 612.

(Peo's 612 for id = photograph)

MS. CLARK: And then there will be two enlargements.

THE COURT: 612-A and B.

MS. CLARK: Yes. Thank you, your Honor. The farther away enlargement, 612-A, close-up on the hand area, 612-B.

THE COURT: So marked.

MS. CLARK: Thank you.

(Peo's 612-A and B for id = photographs)

MS. CLARK: Miss Guidera, I'm going to show you a photograph that's been marked as People's 612 and ask if you recognize this photograph.

MS. GUIDERA: Yes, I do.

MS. CLARK: Is that a photograph that you took, ma'am?

MS. GUIDERA: Yes.

MS. CLARK: And is it a photograph that you took on December 12th, 1993, in New Jersey in the Giant Stadium?

MS. GUIDERA: Yes.

MS. CLARK: And do you recognize the person depicted in that photograph?

MS. GUIDERA: Yes.

MS. CLARK: Who is it?

MS. GUIDERA: O.J. Simpson.

MS. CLARK: And how far away from him were you when you took that picture, if you recall?

MS. GUIDERA: Umm, I'd say about 10, 12 feet.

MS. CLARK: Can you tell us what color gloves are depicted in this photograph?

MS. GUIDERA: Umm, they look dark brown.

MS. CLARK: Uh-huh.

THE COURT: All right. You've placed 612 on the elmo?

MS. GUIDERA: They look dark brown or black.

MS. CLARK: I'm going to show you what's been marked now as People's 612-A and 612-B. Do these appear to be enlargements of the photograph that you see here in 612?

MS. GUIDERA: Yes.

MS. CLARK: And are they accurate enlargements of the photographs that you sent us?

MS. GUIDERA: Yes.

MS. CLARK: Now, you indicate that you were approximately 12 feet away when you took this photograph?

MS. GUIDERA: Yes.

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

THE COURT: Certainly.

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

MS. CLARK: Your Honor, may I ask that the photograph marked People's 612-B be passed around to the jury?

THE COURT: All right. Small photograph?

MS. CLARK: It is, yes.

THE COURT: All right. Hand that to juror no. 1, please. Juror no. 1.

(People's 612-B was examined by the jurors.)

MS. CLARK: While the jury is looking, may I ask that Mr. Fairtlough be permitted to put up the a and B?

THE COURT: Yes.

MS. CLARK: Thank you.

THE COURT: All right. Mr. Fairtlough, would you collect the photograph 612 from Deputy Smith, please. Thank you.

MS. CLARK: May he also affix that to the board, your Honor?

THE COURT: He may.

MS. CLARK: Now, let me ask you further questions, Miss Guidera, about the date. Do you independently recall what day it was?

MS. GUIDERA: A Sunday.

MS. CLARK: It was a Sunday?

MS. GUIDERA: (No audible response.)

MS. CLARK: Is that yes? You have to say it out loud for the reporter.

MS. GUIDERA: Yes.

MS. CLARK: And what month was it?

MS. GUIDERA: December.

MS. CLARK: Of 1993?

MS. GUIDERA: Yes.

MS. CLARK: And do you know if it was before or after Christmas?

MS. GUIDERA: Before Christmas.

MS. CLARK: And what date was it? What Sunday was it? Do you know?

MS. GUIDERA: The 12th.

MS. CLARK: Your Honor, the label that I have here indicates only 12-19-93. May I ask we be allowed to attach a new label indicating 12-12-93 before we put it on the board?

THE COURT: Yes. Do you have any further questions for Miss Guidera?

MS. CLARK: Very briefly.

MS. CLARK: Ma'am, was there any artificial lighting when the photograph that you took of the Defendant in those gloves on December 12th, 1993 was taken?

MS. GUIDERA: No.

MS. CLARK: Did you use a flash?

MS. GUIDERA: No.

MS. CLARK: And did you send the negatives to us for the purpose of verifying the accuracy of the photograph?

MS. GUIDERA: Yes, I did.

MS. CLARK: Nothing further.

THE COURT: Mr. Blasier.

MR. BLASIER: May we approach, your Honor?

THE COURT: Yes, you may.

(The following proceedings were held at the bench:)

THE COURT: We're over at the sidebar.

MR. BLASIER: This is--I'm not prepared to cross-examine her because this is a game we just got the video on and never seen.

MS. CLARK: No. We didn't--we don't have the video. We asked for it a week ago and was never sent to us.

MR. BLASIER: Okay.

THE COURT: Okay. Let's go.

MS. CLARK: We're trying. We intend to have one someday, yes.

MR. COCHRAN: This case will be over someday too, won't it?

MS. CLARK: I don't know based on the way Defense is going.

THE COURT: I hope so. Hold it, hold it, hold it, hold it. You are ready to go?

MR. BLASIER: This morning, they listed three videos that came in this morning. Was this one of them?

MS. CLARK: We have no video for her right now. It did not come in. Let me indicate though to the court though, because this is really important, we've asked for it a week ago and NBC has been very, very uncooperative with us. They refuse to Honor our subpoena because there was a typographical error in the SDT. We need to take this up with the court. We also have a video clip for which we do not have a still photo that we need to be able to show the jury that we've tried to obtain through one of their representatives. As the court knows, the NBC attorney is fighting bringing in the custodian to testify insisting that the court force a stipulation on the parties of some kind or another to authenticate the tape. So we need to resolve that issue before we complete the testimony necessary for the foundation for Richard Rubin's testimony. So a couple things. We're still waiting for the tape.

THE COURT: Let's conclude Miss Guidera. All right.

(The following proceedings were held in open court:)

THE COURT: All right. Let's have it quiet, please. All right. Mr. Blasier, ready to cross-examine?

MR. BLASIER: Yes, your Honor.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Good afternoon, Miss Guidera. How are you?

MS. GUIDERA: Okay.

MR. BLASIER: This was December 1993 in San Francisco, correct?

MS. GUIDERA: No.

MR. BLASIER: I'm sorry. In New York?

MS. GUIDERA: No. New Jersey.

MR. BLASIER: New Jersey. How cold was it?

MS. GUIDERA: Very cold.

MR. BLASIER: Very cold. A lot of people wearing gloves there?

MS. GUIDERA: Umm, I guess so.

MR. BLASIER: Not particularly unusual to see people wearing gloves at all, if at all?

MS. CLARK: Objection. Speculation.

THE COURT: Overruled.

MS. GUIDERA: No, not unusual.

MR. BLASIER: Okay. Now, I want to take--I'd like to remove one of these if I might. Can you put this on the elmo, please?

THE COURT: Which one is this, Mr. Blasier?

MR. BLASIER: This is 612--I don't know.

MS. CLARK: A.

MR. BLASIER: A. Can we back out on that, please?

MR. BLASIER: Now, Miss Guidera, do you have an independent recollection of being there and seeing Mr. Simpson?

MS. GUIDERA: Yes.

MR. BLASIER: And looking at him when you took the picture?

MS. GUIDERA: Yes.

MR. BLASIER: When you looked at that glove in person, was it as loose as it appears to be in the picture?

MS. CLARK: Objection. That calls for a characterization, your Honor.

THE COURT: Overruled.

MS. GUIDERA: I can't recollect.

MR. BLASIER: Okay. The picture is the best record of what you saw?

MS. GUIDERA: (No audible response.)

MR. BLASIER: Now--

THE COURT: Is that yes? You're shaking your head. Is that--

MS. GUIDERA: Repeat the question.

MR. BLASIER: This picture is your best depiction of what you saw that day?

MS. GUIDERA: Yes.

MR. BLASIER: Okay. Now, could we have this--back it just a little more. And could we zoom in on the lower right corner? More. Thank you. And could we have a circle around that glove, please?

MR. BLASIER: Miss Guidera, do you recall seeing the person standing behind Mr. Simpson wearing gloves?

MS. GUIDERA: Right now I do, yes.

MR. BLASIER: Okay. Appear to be the same kind of gloves that he was wearing?

MS. CLARK: Objection. Speculation.

MS. GUIDERA: I don't think so.

MS. CLARK: Never mind. Withdrawn.

MR. BLASIER: May we have that printed out, please?

THE COURT: Yes. Mark that as--let's make that 612-C.

(People's 612-C for id = printout of photograph)

(Discussion held off the record between Defense counsel.)

MR. BLASIER: Your Honor, I'd like to show the witness People's--

MS. CLARK: Objection, your Honor. Objection. Relevance.

THE COURT: Sustained. The record should reflect that the reference was made to 609.

MR. BLASIER: 609?

THE COURT: 609.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: That's all I have.

THE COURT: Miss Clark, any redirect for Miss Guidera?

MS. CLARK: No, thank you, your Honor. Nothing further.

THE COURT: All right. Miss Guidera, thank you very much for coming in. You're excused. Next witness.

MR. DARDEN: Mr. Rubin, the glove man, your Honor.

THE COURT: All right. Let me see counsel at the sidebar without the court reporter.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Ladies and gentlemen, there's something I need to take a look at before we hit the next witness. Let me ask you to step back in the jury room.

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

THE COURT: All right. The record should reflect all the jurors have withdrawn from the courtroom. Miss Clark, you indicated you have a compact disk based video. May I see that, please?

MS. CLARK: Yes. Mr. Fairtlough.

THE COURT: All right. Let's clear the telestrator, please. All right. Mr. Ormond, I don't have anything on my monitor. Mr. Blasier, do you have this on your monitor?

MR. BLASIER: I do now.

THE COURT: Ah.

MR. FAIRTLOUGH: May I proceed, your Honor?

THE COURT: Please.

(At 4:25 P.M., a videotape was played.)

(At 4:26 P.M., the playing of the videotape was concluded.)

THE COURT: It appears to be a different clip.

MR. FAIRTLOUGH: Yes, your Honor. That was the end of the segment.

THE COURT: Miss Clark.

MS. CLARK: That's it, your Honor. The shot of the Defendant in the brown coat with the brown gloves is the one that we do not have. I believe the still photographer for--

THE COURT: It's a pretty good digital quality.

MS. CLARK: Yeah. The detail that's shown in this video, your Honor, was important to Mr. Rubin for the purpose of determining whether the stitching was consistent with the stitching of the crime scene glove--

MR. BLASIER: Your Honor, may we have Mr. Rubin leave, please?

THE COURT: Yes. Mr. Rubin, why don't you wait outside.

MR. DARDEN: Mr. Rubin would like to be here when we discuss the issue of scheduling, however.

THE COURT: Scheduling? Sure. Yeah. Why don't you just wait outside, Mr. Rubin. Thank you.

(Mr. Rubin exits the courtroom.)

THE COURT: All right. Miss Clark, as to--the record should reflect that Mr. Rubin has withdrawn from the courtroom. With regards to this 15-minute clip that's on the compact--is it a laser disk or compact disk?

MR. FAIRTLOUGH: It's on a laser disk, your Honor.

THE COURT: All right. Objection?

MR. BLASIER: Well, I object. First of all, it's cumulative. It's another brown glove. I don't think it shows anything more than what they've already put pictures on. I don't know--object to a foundation. They haven't established the foundation. So I object on both of those grounds. I don't know when it is.

MS. CLARK: Let me get that for you, your Honor, but let me simply--but let me indicate this to the court. I understand the objections to cumulative nature in the black glove, and we've pared that down conceivably. But all shots of the brown gloves that are deemed to be by our expert consistent with those purchased by Nicole Brown and those found at the crime scene and at Rockingham are clearly not cumulative because it shows the Defendant not only having them at a point in time shortly after they were purchased, but also at a point in time--also shows his habit and custom of wearing them, which means they're out in the weather. The more he wears them, the more important that is to their stretchability and as close in possible in time to the murders. This clip that is shown in the brown gloves is of the Kansas City versus the bills on January 5th, 1992. It's an important video for the expert because, as the court can tell, it's very clear in its depiction of the nature of the stitching on the fingers, the Brossier stitching on the back of the hand, and these are distinctive features to be able to identify these gloves as the type and class purchased by Nicole and, coincidentally, the type and classification of gloves found at Rockingham and Bundy. I don't know what other justification needs to be made.

THE COURT: Well, I understand the justification. How are you going to lay the foundation for it? I recognize the person depicted. The question is when?

MS. CLARK: Right. And for that purpose, your Honor, we subpoenaed the representative from NBC. NBC responded by sending an affidavit to the court. I believe the court is in possession of that.

THE COURT: Yes. Received it this morning.

MS. CLARK: Yes. If I may ask leave of the court to ask Mr. Yochelson to come down to indicate to the court because he's had all the interaction with them. They've been very uncooperative. I would ask that the court inquire of Mr. Yochelson because it's my understanding that the attorney, Miss Edgerton, has indicated that her position on behalf of NBC is that the court can force the parties to stipulate to the admissibility of the clip without the necessity of the custodian appearing to the--and we have indicated to her to the contrary repeatedly.

THE COURT: Well, federal courts can in civil cases.

MS. CLARK: Pardon?

THE COURT: Never mind.

MS. CLARK: Anyway, may I ask leave of the court to have Mr. Yochelson address the issue since he has been in contact with them?

THE COURT: Because then I think foundation is going to be necessary, at least place and time.

MS. CLARK: And I don't disagree. I totally agree with the court. We're being hamstrung by witnesses that are simply refusing to come in and testify and we need the court's assistance.

THE COURT: Well, how about if I turn off the video and let's see how long it takes NBC to cooperate.

MS. CLARK: I bet it will work.

THE COURT: All right. Well, let's do it.

MS. CLARK: Okay. In the meantime--

THE COURT: Where's Mr. Yochelson?

MS. CLARK: Let me get him down. He's on his way.

THE COURT: All right.

MS. CLARK: If we may, your Honor, we're going to call and make sure he's on his way. He specifically asked that I let him address you.

THE COURT: All right. Mrs. Robertson have we heard from Miss Edgerton lately?

THE CLERK: No, I have not. The impression I got was, she was filing a motion to quash.

(Brief pause.)

THE COURT: Miss Clark, is there a particular affidavit from mark le place concerning the particular outtake--

MS. CLARK: That clip?

THE COURT: --that you're discussing here?

MS. CLARK: You mean the brown glove photograph, your Honor? I mean video?

THE COURT: Yes. The one you just showed me.

MS. CLARK: I'm waiting for Mr. Yochelson to bring it down. I believe he's in possession of it.

THE COURT: All right. Do you know what game this is? I'm sorry. Which football game is this?

MS. CLARK: What football game? It is Kansas City Chiefs versus the bills.

THE COURT: On what date?

MS. CLARK: On January 5th, 1992.

THE COURT: Now, the fact that this is--all right. What's the source of this?

MS. CLARK: The source of the tape, your Honor? NBC.

(Mr. Yochelson is now present.)

THE COURT: All right. The record should reflect that we've now been rejoined by Mr. Yochelson.

MR. YOCHELSON: Good afternoon, your Honor.

THE COURT: Good afternoon. Mr. Yochelson, there's some controversy about the foundation for the video clip which is alleged to depict the January 5th, 1992 football game, American Football Conference playoff game between the Chiefs and the Bills.

MR. YOCHELSON: Yes, your Honor. As Miss Clark indicated, we did subpoena that footage from NBC. NBC provided that videotape in a fairly expeditious manner and at the same time provided a custodian or offered to provide a custodian of record affidavit. They did not. And their position has been throughout this that they are not obligated to provide an actual live witness. Their position is that the witness who would testify to this is located in New York and beyond this court's jurisdiction without further process of the court. Miss Edgerton filed a letter with the court today and I just got off the phone with her, and she's indicated that she attempted to contact the court within the last hour leaving voice mail. But she is attempting to--or strike that. She has contacted the court with this. It is our position, your Honor, that the affidavit under 1560 of the evidence code should suffice to lay the foundation for this videotape.

THE COURT: Mr. Blasier, what's the Defendant's position?

MR. BLASIER: Our position is that we don't think that that does. It doesn't comply with the law. This is not a governmental agency, that they have subpoena power. They can bring somebody from New York just like we brought Miss McKinny from Georgia--from North Carolina.

THE COURT: All right. The problem I have, Mr. Yochelson, is that the affidavit--I agree with you that there is a manner, the subpoena duces tecum and the process and the declaration of the custodian of records, that that's ordinarily a way to avoid having to call live witnesses if there are business records that are maintained in the normal course of business and in an appropriate manner. The difficulty I have is that the declaration that is attached to Miss Edgerton's letter to the court bearing today's date, the affidavit indicates, quote, "NBC has made a diligent search for that footage and has not been able to locate it," and it refers to the videotapes of the Kansas City Chiefs, Buffalo Bills game played on January 5, 1992. So the affidavit itself does not provide a foundation. So where does that leave us?

MR. YOCHELSON: Well, that leaves us with attempting to find another affidavit, obtain a second affidavit remedying this defect or having NBC here to explain this issue to the court. We are not going to rest until we can lay the foundation for a very simple piece of tape that should by rights be stipulated to. But I--the Defense--we've not been able to arrive at a stipulation. It seems this matter should be handled very expeditiously. Miss Edgerton informs me that she can be here tomorrow, and I would ask that we have her in first thing tomorrow and attempt to hammer this out with all the parties and NBC.

THE COURT: Because we handle business records all the time in this manner. But the affidavit doesn't support what you're asking for.

MR. YOCHELSON: Well, in that case, I'm sure that we can address that issue with NBC, and we will take it up. I suggest that we hold this matter in abeyance until tomorrow morning, have Miss Edgerton in and we will settle this matter.

THE COURT: Well, I would suggest that you have somebody up at 5:00 o'clock tomorrow morning at the opening of business on the east coast and see if you can't expedite this matter because the matter of an appropriate declaration, that's all that's missing here.

MR. YOCHELSON: It should be a simple thing and we will accomplish that. Of course, as Miss Clark points out, the fact is that NBC gave us this videotape. So clearly they knew what it was, in response to our request. So clearly they knew what it was and were able to locate it.

THE COURT: Well, my problem is, Mr. Yochelson, as much as I understand and appreciate what it is you're saying, there's an objection and the affidavit doesn't support what you're asking for.

MR. YOCHELSON: All right.

MR. BLASIER: May we have copies of what's been submitted? We haven't seen it.

THE COURT: Yes. Mrs. Robertson, would you have Mr. Byrne--I think you--

MR. YOCHELSON: I believe that was already provided previously, your Honor.

THE COURT: Okay. All right. As far as scheduling then, I take it then unless and until we have this video--this is also videotape you want to use with Mr. Rubin, correct?

MS. CLARK: That's correct, your Honor.

THE COURT: All right. Scheduling then. Mr. Blasier indicated he needed additional time to prepare for the cross-examination of Mr. Rubin, and, Mr. Darden, you indicated that there was a desire to have Mr. Rubin present so we can consult with his calendar. All right. Why don't you ask him to step in, Mr. Fairtlough?

MR. DARDEN: Mr. Yochelson has offered to ask him to come in. I don't know that the court is aware of this, but Mr. Rubin is the only so-called expert in this entire case who has testified without any fee, for free. He has appeared here on many occasions on his own time. He has taken calls from the Defense on the east coast on his own time. He runs a business and he needs to get back to that business. I don't understand why we need to delay until Wednesday regardless of what--

THE COURT: Well, there's a request for additional time. And part of the difficulty though is, some of the information that Mr. Rubin produced and gave to the Prosecution was not turned over to Mr. Blasier until today. I mean, that's not a situation that the court created.

MR. DARDEN: Everything that we put on today I believe was turned over prior to September 1, Judge.

THE COURT: Well, we had a discussion--we started off this morning discussion with the fact that Mr. Rubin's letter of July the 6th had not been disclosed to the Defense. That's how we started off this morning's discussion.

MR. DARDEN: And I think we ended that discussion by the court noting that it was a preliminary, at most, conclusion on his part. He was asking for more photographs or better photographs and was--

THE COURT: The point being though is that he actually does refer to specific photographs and makes certain findings. That's the point. All right. Mr. Blasier, why do you need until Wednesday?

MR. BLASIER: Well, I think we got I think it was a total of 47 pictures on Friday afternoon at 5:30. I spent the weekend working on this. We may be producing some exhibits. I have to coordinate some other people that I may have here in court for when Mr. Rubin testifies. We simply just need some more time. I'm looking at Thursday. I may be able to be ready by Wednesday. I'll have a better idea tonight.

THE COURT: Well, specifically what is it you need to do?

MR. BLASIER: I need to consult with experts that we've been in contact with. I need to see if they're available to be here Wednesday. We may be taking--making some photographic exhibits. I obviously have been here all day. So I haven't been able to do that today. That takes time.

MR. DARDEN: We gave them color copies of just about all the photographs early on, your Honor. There's nothing that has been presented here today that should have been a surprise to the Defense. This is rebuttal. We all knew it was coming. We all knew we were going into the glove issue. It's really a simple issue, that is the identity of the gloves being an Aris leather light, an Aris Light or not. How much more time can be necessary to prepare to cross-examine Rubin on these issues? Beyond that, we've already litigated the issue of Brossier stitching and the "V" palm and all these other things.

THE COURT: And what? I'm sorry.

MR. DARDEN: We've already litigated these issue of the Brossier stitching and the "V" palm and everything else as it related to the uniqueness of the gloves. So why the extra time?

THE COURT: Well, the main problem I have is that this report wasn't turned over.

MR. DARDEN: Well, a detailed--in fact, a transcript of our conversations with Mr. Rubin as they related to each of the photographs shown to him was provided to the Defense on August 31st or September the 1st, which is much more detailed than any report and, in particular, much more particular than any preliminary report or letter sent to him by us. They have a transcript of all of his opinions as they relate to each of the photographs and they've had it for 12 days now.

MR. BLASIER: My recollection of that transcript is, the only photograph he said "Looks like the Aris glove to me" is the one--is one Renken picture, maybe a second. That's it. None of these other ones are referred to in the transcript and then there's one video that I think he said that's a good video. None of what we've heard except for the Renken pictures is part of that transcript. Now, this is some--I assume this is part of some later opinion, but I have nothing about that in writing. I just have to assume that he's going to get up there and say something about it.

THE COURT: Mr. Darden, do you have a copy of Mr. Rubin's last report or letter to you, his final report or letter?

MR. DARDEN: There--I don't believe we handed over a final report. We handed over the transcript--

MR. BLASIER: It's just the transcript.

MR. DARDEN: --of Mr. Rubin's opinions and comments as they related to each of the photographs. Mr. Rubin points out to me that it was Mrs. Blasier, Mr. Blasier's wife, who called him up and let him know that he was coming back to testify in the first place and that it was Mrs. Blasier who interviewed him on the telephone several days ago on September 1st. So none of this is a secret, Judge.

MR. BLASIER: Yeah. We had no--obviously, we've been trying to prepare for this since they started making noises about doing this. We had no pictures when we talked to him before. It was a telephone conference. That's it. That was not terribly helpful.

MR. DARDEN: Mr. Rubin would like to testify tomorrow morning and get back east to his business and family.

MR. BLASIER: It does not give me adequate time to represent my client.

MR. DARDEN: And I think that's probably why we have the objections, so that he'll be forced to go back east before he is allowed to testify in this case. This is a no brainer, Judge, as far as cross goes. They've had adequate notice.

THE COURT: Ahh, you people.

MR. DARDEN: And I'm willing to surrender People's witness, Mr. Rubin, to Mr. Blasier. He may take him anywhere he may like and do with him whatever he may want.

THE COURT: All right. Well, the photos are here. Mr. Rubin is here. Mr. Rubin is well known to both sides. He's been cooperative with both sides to an exceptional degree. He has provided raw materials for both sides. I think we've had the photographs now for a sufficient period of time. I am still concerned, however, about that letter of July the 6th. Mr. Blasier, be ready to go tomorrow.

MR. BLASIER: May I say one further thing, your Honor?

THE COURT: Certainly.

MR. BLASIER: One of the things that we have been doing is trying to accumulate gloves that have some of these characteristics, and we were going to produce some photographs or going to attempt to. We can't do that. And I just inform the court I can't do that. If I have to go forward tomorrow morning, I can't do that. We still have gloves coming too by the way. So we may have to have him come back.

THE COURT: Well, that's something that can be independently put on by somebody else by an investigator, that they found these gloves with similar characteristics. That's something you don't need to do with Mr. Rubin. But this is also not an issue that's been a mystery or is unexpected.

MR. BLASIER: Which photographs he's going to identify has been until today except for the Renken pictures.

THE COURT: All right. Anything else?

MR. DOUGLAS: Yes, your Honor.

THE COURT: Before we launch into our Sims hearing.

MR. DOUGLAS: It's a discovery question concerning upcoming witnesses.

THE COURT: Yes. Who's coming up after Mr. Rubin?

MR. DOUGLAS: Well, first of all, your Honor, of the list of 60 names that we were given on Friday, my office has attempted to identify those witnesses for whom we have no reports, statements or any idea of what they are going to testify about.

THE COURT: All right. And they are?

MR. DOUGLAS: David Adkins I believe worked with SID, but I'm not sure of the nature of his testimony.

THE COURT: Who is David Adkins?

MR. DARDEN: The OIC in the photo section at SID. I believe he testified once before on the issue of the Willie Ford video.

THE COURT: Yes. The press people say yes. They know who he is.

MR. DARDEN: Did he testify? If you look at the logs from Rockingham, you'll see that he arrived at Rockingham around noon that day and he will testify that he saw the socks.

THE COURT: Are there any reports regarding him?

MR. DARDEN: I will--I don't think so.

THE COURT: I'm sorry. I didn't hear you.

MR. DARDEN: I don't think so, no.

THE COURT: Next.

MR. DOUGLAS: Brent Clayton, C-L-A-Y-T-O-N.

THE COURT: Who is Mr. Clayton?

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

THE COURT: Miss Clark, do you want to look at--

MS. CLARK: Oh, thank you, your Honor.

THE COURT: --my list?

MR. DARDEN: That's Miss Clark's witness, your Honor.

MS. CLARK: Thank you.

THE COURT: All right. And before we break, Mr. Rubin, would you make yourself available to discuss these matters with Mr. Blasier this afternoon, this evening?

MR. RUBIN: No problem.

THE COURT: All right. Thank you, sir.

MS. CLARK: I'm sorry, your Honor. I'm drawing a blank at the moment.

THE COURT: All right. Next name.

MR. DOUGLAS: Jim Henson.

MS. CLARK: I need to go upstairs and get my paper work, your Honor. I have everything written down, who testifies and to what and why.

MR. DOUGLAS: Let me give the names just so we're clear. Steve Jensen. Dennis Kilcoyne I know he's an investigator or police officer. I'm not sure what he's testifying about. I have a name that says Laufman, L-A-U-F-M-A-N, no first name. I don't know who that person is.

MR. DARDEN: Mr. Laufman I believe was a witness to Cathy Randa and Skip Taft, removing a large sum of cash from Mr. Simpson's safety deposit box on June 17th and Mr. Jensen is from Cognitech. They enhanced the photographs of the gloves.

MR. DOUGLAS: Lamar Lyle.

MS. CLARK: We did not use those enhancements.

MR. BLASIER: I'm sorry. Is that another glove witness?

MS. CLARK: No. Don't worry, Bob.

MR. DOUGLAS: Lamar Lyle.

MR. DARDEN: What these are are witnesses that will establish foundation for different things. But we will give--

THE COURT: All right. Do me a huge favor. That's my list. So how about if you don't mark on it?

MS. CLARK: She shouldn't have written that note about you.

THE COURT: Another one. Okay. Listen, what I'm going to do is, I would like to take a brief recess because we're now going to launch into an hour long hearing on Sims and RFLP. Let me order Mr. Douglas, Mr. Darden and Miss Clark to meet and confer during the recess, get your list, find out who's who, turn the names over to Mr. Douglas as to who you're going to call and who they are. All right. We'll take a--

MR. DOUGLAS: For the next three days, your Honor?

THE COURT: That's what that includes.

MR. DARDEN: Can Mr. Fairtlough meet with Mr. Douglas, because he handles all the paperwork.

MS. CLARK: I believe I stated all the witnesses for the next three days on Friday. I've already done that.

THE COURT: Well, Mr. Fairtlough, Mr. Douglas, get together, compare the names, the schedules.

MR. COCHRAN: We'd like to have three days' worth.

THE COURT: We don't need to do it again. I've got my notes. You should have yours.

MR. COCHRAN: Let me add one other thing, your Honor. I wasn't here on Friday, your Honor. One other thing. There's a motion--the People have filed a motion to introduce expert testimony regarding domestic violence. I thought we went through that before. Dean Uelmen is here. He will not be able to respond to this motion until Friday, and we'd like to argue it next Monday.

MR. DARDEN: Mr. Gordon is going to be arguing that issue for us and we intend to rest by next Monday.

MR. COCHRAN: I certainly hope they can rest without this witness too then, your Honor, because we got this convoluted, complex motion which was already litigated I thought. And Dean Uelmen is here. It may require a Kelly Frye, et cetera, and we are indicating we can't respond to it. His work is back up north. He's going back home. He'll respond to it by Friday. We wanted to alert the court to that.

MR. DARDEN: Earlier today, Mr. Bailey told us he was ready to argue. He wanted to argue this motion this afternoon.

MR. COCHRAN: Well, I don't believe Mr. Bailey had seen this motion at that point. This motion requires points and authorities and we will be doing that.

MR. DARDEN: In fact, I think Mr. Bailey was ready to concede the issue.

MR. BAILEY: I have not seen any points and authorities. They were handed to me after. I said I would be prepared to go on the papers I had in hand.

THE COURT: All right. Get your P's and A's as soon as you examine. I think Friday's optimistic. All right. Let's take a 15-minute recess. Then let's get the Sims' witnesses down here and we'll start into that. And, Mr. Blasier, why don't you take advantage and chat with Mr. Rubin. All right.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, we have a--one matter already scheduled for this afternoon, which is the motion regarding RFLP testing of evidence taken from the Bronco automobile and also some issues--continuing issues regarding the scope of the Prosecution rebuttal case. Mr. Cochran.

MR. COCHRAN: Yes. We would ask--we want to just make sure the court would allow us to argue the issues regarding the scope of the Prosecution's case because the case will be over. We may not have argued that motion, so I wanted to make sure we did that at least, if not this afternoon.

THE COURT: Wouldn't that indicate there is a very limited scope?

MR. COCHRAN: Not left to them, your Honor. I think you would have to interject yourself to make sure that happens so we would have to do it sooner rather than later, so rather this afternoon or first thing in the morning. I would give your Honor your choice on this. I think counsel are prepared to do that as soon as you are ready. Bob Blasier has a portion of that and I suppose he is out talking to Mr. Rubin, but I think Peter Neufeld is ready on a portion of it.

MR. NEUFELD: What would make sense, your Honor, if you can schedule it this way--may I be heard?

THE COURT: Certainly. Good afternoon, sir.

MR. NEUFELD: Good afternoon. Mr. Scheck of course is going to be addressing the RFLP issue on the console this afternoon, and we just got, as you know, points and authorities this afternoon on the Dutton matter. But for instance, you know, you asked the Prosecution yesterday are there any Kelly-Frye cases at all involving this kind of testimony, you know, anywhere, that would give the court guidance, and at that point, you know, Miss Clark said, yes, I believe there are, but I'm not certain. We just spoke to Mr. Dutton this afternoon and Mr. Dutton informs us, for instance, that as to these four matters he has never participated in any Kelly-Frye hearing anywhere in America or Canada on these issues before that he wants to raise for the first time in this particular case. That is the kind of facts we need to know before we can adequately brief it and argue it before your Honor. They said this case is going to last three to five days. Five days. It is going to be the most extraordinary five days, you know, since the earth was created. All we are saying is, is that we need to know, before we start running off in 16 different directions, what evidence we are really going to refute both in cross-examination and conceivably surrebuttal. Yesterday I also asked that they put in points and authorities, your Honor, on June 17th testimony. I don't know if you recall that. Remember they felt that June 17th was now relevant, yet we haven't heard anything about June 17th.

THE COURT: Well, they offered--they indicated they want to call Skip Taft, Cathy Randa and--

MR. NEUFELD: Michael Baden and other people who were present at the house that day.

THE COURT: Right.

MR. NEUFELD: But there is no points and authorities as to why--what doors have been opened for this kind of testimony at this time. All I'm saying is this: I think we are entitled, as this train moves down the track, to get some understanding right away as to what the court is going to permit and what the court is not going to permit so time is not expended on unnecessary issues.

THE COURT: All right. I agree with you wholeheartedly, Mr. Neufeld, so you are raising obviously the Dutton issue which we just got points and authorities on.

MR. NEUFELD: Yeah. Mr. Bailey--

THE COURT: You are concerned about the scope of the Defendant's activity on 6/17, correct?

MR. NEUFELD: Yes.

THE COURT: What other concerns?

MR. NEUFELD: The Bronco fiber report which they feel the door has been opened up because a witness' suggestion--

THE COURT: Kathleen Bell?

MR. NEUFELD: Yes. I think Mr. Bailey will be ready to argue both those issues tomorrow morning, your Honor, and I would ask that time be set aside tomorrow morning as to both the Bronco fiber issue and also as to the Dutton matter tomorrow morning.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: All right. On--

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Your Honor, also--

THE COURT: Dutton issue tomorrow is fine.

MR. COCHRAN: He misspoke himself.

THE COURT: Just kidding.

MR. NEUFELD: Your Honor, although we received a proffer yesterday with respect to I guess Friday, whatever it is, with respect to the scientific witnesses, most of the witnesses, included on that list of sixty people are not expert witnesses and they, too, have to fall within the criteria of proper rebuttal testimony, and so we can argue that.

THE COURT: Are there any particular areas that you can isolate for me that are apparent to you just from who they are?

MR. NEUFELD: No. That is the problem, is that we have looked at that list and there are many people on the list we have been unable identify at this time. I can't tell you right now who they are. I can give that you tomorrow morning. And I would request that first thing tomorrow morning when we give you that list that the People then come forward with a brief proffer as to who these people are and what they would be testifying to so we can argue in a 402 or 352 or, whatever, that it is inappropriate.

THE COURT: Makes sense.

MR. NEUFELD: So that can happen first thing tomorrow morning, too.

THE COURT: I don't know that it will happen first thing tomorrow morning, but I at least want to frame the issues and get us scheduled to discuss these matters.

MR. NEUFELD: Also, you had mentioned that you were going to review the DeForest matter with Mr. Hodgman.

THE COURT: I have not heard back from Mr. Hodgman today, but in case you haven't noticed, I have been on the bench today.

MR. NEUFELD: One moment.

THE COURT: In fact, Mrs. Robertson, would you instruct Mr. Hodgman to be here tomorrow morning 8:30 so we can conclude the DeForest matter.

MR. NEUFELD: Oh, your Honor, and also we will want to be able to litigate the Peratis tape which they have come forward with now.

THE COURT: All right.

MR. NEUFELD: Would you like--can we do that tomorrow morning also so that we will know?

THE COURT: We will schedule it tomorrow morning.

MR. NEUFELD: Thank you.

MR. SCHECK: Your Honor, before we begin with Mr. Sims, there is the matter of it appears now to be Agent Deedrick and maybe Mr. Bodziak are the People's intended witnesses. And the first matter I should raise, let me--we just received this afternoon a document from the--documents from the FBI. They had previously been described to me by Mr. Goldberg as preliminary reports. I don't know if it is a preliminary or a final report. But basically what has been done is they took some chemically treated paper and something that is called an Identicator and they took the jeans--

THE COURT: I know. We have had this discussion already.

MR. SCHECK: Right. Now, I asked Mr. Goldberg again to--whether he would concede that the picture that I wanted to show to the court demonstrates that the jeans are altered. Looking at the picture it is clear that it jeans are altered. He said he hasn't looked at it yet and he maintains that the procedures that are being used to create these test impressions are not in any way a destructive test.

THE COURT: Uh-huh.

MR. SCHECK: And therefore he takes the position that no notice need be given to the Defense as to any of these testing procedures. That apparently was the position that they took because I thought that this order--

THE COURT: Counsel, why are we discussing this now?

MR. SCHECK: For one simple reason: I asked if they were going to be conducting any further tests with the jeans. Mr. Goldberg indicated to me that that could happen. I asked if they would give us notice of that. He said I will give you notice, but it is not necessarily going to be timely notice, because I don't think you are entitled to that. And I said, well, if we want to have an expert present or document or even litigate any further alteration of these jeans as to whether or not it is reasonable--reasonably necessary for that to be done, particularly since we think that it shouldn't have been done in the first place, we want this court to order the Prosecution to give us notice so that we can, A, litigate whether this should be done in the first place, whether there is reasonable necessity to do it under griffin, and B, adequate opportunity to have experts there to do it. And I want to put the court on notice that we don't have full discovery from them. The test impressions that were actually taken from various objects we don't have.

THE COURT: Why don't you and Mr. Goldberg be here at 8:30 and we will discuss the matter. All right. Mrs. Robertson, would you summon Mr. Goldberg tomorrow morning also at 8:30. All right. Mr. Harmon, are you going to conduct the hearing as to Mr. Sims?

MR. KELBERG: Your Honor, actually I believe I'm going to have some participation, with the court's leave, because we feel it is a hearing that is most appropriately bifurcated. Our position is that this evidence is clear rebuttal evidence. I was intending, with the court's permission, to tell the court, argue to the court why in our judgment this is clear rebuttal evidence such that the timeliness of the RFLP testing becomes irrelevant. I did hear this morning--I know the court in a similar motion regarding scope of rebuttal was concerned about the timeliness of the photographs being collected and so forth, and I'm mindful that the court has expressed concern regarding the RFLP testing. But I would like to be heard as to why I believe, given Dr. Gerdes' testimony, the evidence concerning the 303, 304 and 305 RFLP stains is true rebuttal evidence, such that the timeliness issue with respect to case in chief falls by the wayside. We are certainly prepared with Mr. Harmon and Mr. Sims, if the court wishes to hear the circumstances of the scheduling of the tests, the chronology of events. Mr. Harmon is obviously intimately familiar with those and is in a better position to conduct the inquiry if the court feels that that is necessary. But I truly do believe that if the court hears what I believe to be the reasons why this is rebuttal, the court may be convinced that that hearing is unnecessary. Your Honor, as the court will recall from Dr. Gerdes' testimony, he contested the reliability and validity of Mr. Sims' interpretation of the 1.3 allele in stain 31 from the Bronco console. As the court will recall, the testing on the PCR of that stain 31 was, in the opinion of Mr. Sims, consistent with a mixed stain of Mr. Simpson and Mr. Goldman. I believe 1.1, 1.2, 1.3 and a 4.. The 1.3 and the 4 would be Mr. Goldman. Dr. Gerdes' position was that the 1.3 allele was too faint to be legitimately called as an allele which was present and in fact it could be the result of cross-contamination due to sample mishandling.

THE COURT: Do you want to direct my attention to the particular passage in the transcript where Dr. Gerdes--

MR. KELBERG: We can get this for the court. This is a summary. I had the issue framed in my mind in discussing rebuttal evidence with Miss Clark, Mr. Hodgman and so forth, and then I confirmed with Mr. Clarke as to the substance of--and with Mr. Harmon as well the substance of Dr. Gerdes' testimony, but what I am saying is a representation made to me in my consultations with Mr. Clarke, Mr. Harmon as to Dr. Gerdes' assertions as part of his testimony as a Defense witness, and in essence what he said with respect to that stain in comparison, for example, with item 52, which was one of the blood drops on the Bundy walkway, which Mr. Sims did also see a 1.3 showing in the PCR testing but which in that circumstance Mr. Sims felt could not be called as a true finding of an allele from a contributor, and in fact attributed it to an artifact. So Dr. Gerdes, one of his positions was Mr. Sims had to be consistent, he couldn't call the 1.3 in stain 52 an artifact and not call the 1.3 in item 31, the console stain, an artifact as well. The point is that stains 303, 304 and 305, combined under order of this court for the purposes of RFLP testing, come from an area nearby to where item 31 was found in the console.

The RFLP tests, we have done now all four probes, but there is a report only of the three-probe findings. The three-probe findings are again consistent with a mixed stain of O.J. Simpson and Ronald Goldman, and further, they are consistent by intensity levels with the intensity levels found in item 31; the intensity level of Mr. Simpson's contribution being significantly more than the intensity level of the 1.3, 4 allele called by Mr. Sims as consistent with Ronald Goldman as a contributor. So the essence of this RFLP test results from the 303, 304 and 305 stains is to undermine Dr. Gerdes' contention that Mr. Sims was wrong to call the 1.3 and 4 a contribution by Mr. Goldman, but rather, he should have called it an artifact, or to be consistent, it was an artifact through sample mishandling. We are corroborating with 303, 304 and 305's RFLP results, corroborating the accuracy of Mr. Sims' call on 31's accuracy which was called into question by Dr. Gerdes, a Defense witness, and that is why this is true rebuttal, because we are now going to reinforce the accuracy of Mr. Sims after that accuracy has been attacked by Dr. Gerdes. Furthermore, your Honor, I would submit to the court, as I know the court has had a concern as a requirement, that anytime that test results have been given there be population statistics given to the jury in order to understand the rarity or the commonality of a particular finding. I submit to the court that on this RFLP series of tests on 303, 304 and 305, the statistics are already heard by the jury. The statistics are the PCR statistics of stain 31 because we are not independently offering 303, 304 and 305 for themselves, but to prove the accuracy of 31's finding and the call by Gary Sims as a result of which no further independent statistic should be required. And in fact the statistics which have been received by the jury on the PCR, Mr. Clarke was kind enough to give me the testimony, are much more favorable to the Defense than any statistics offered by someone such as Dr. Weir would be for RFLP tests on 303, 304 and 305. For example, on stain 31, assuming two contributors, the statistics run from 1 in 4700 to 1 in 19,000. And for the 303, 304 and 305 PCR stains, there has also been testimony as to these statistics, they run from 1 in 570 to 1 in 10,000. But if one gets into the RFLP statistics, and there was a recent report produced by Dr. Weir, which has been given, as I understand it, to the Defense, for--assuming two contributors, you are looking at a range in 1 in 58 million 133,000 to 1 in 114 million 237,000. Now, I don't hold myself out as the brightest guy in the practice of law, but it would seem to me pretty logical that if I were the Defense, I kind of like the PCR numbers as to the commonality, a lot more than I would like the RFLP numbers. And that is the point of this evidence of 303, 304 and 305. It is not offered for independent value, which may have resulted in it being in our case in chief, but it is being offered to corroborate findings that we did offer in our case in chief which are basically similar findings; it is a mixed stain, it is a mixed stain consistent with O.J. Simpson and with Ronald Goldman, but it is now being offered to directly attack a Defense expert testifying in the Defendant's case in chief. That, as I understand the law, your Honor, is true rebuttal, and for that reason this evidence should be received, irrespective of when the tests should have been or could have been performed. And I offer no opinion on the timeliness, I leave that to Mr. Harmon and Mr. Sims, if the court still feels the need to hear it, but I suggest to the court if this is true rebuttal then we cannot offer this evidence until we reach rebuttal. We have reached rebuttal today. The tests are available today. And that make them timely on rebuttal. As I also indicated, we submit to the court that no new evidence independent of statistics is required for the interpretation of these RFLP findings on 303, 304 and 305 where they are offered to corroborate the findings of PCR results on stain 31. Thank you, your Honor.

THE COURT: All right. Mr. Harmon.

MR. SCHECK: Could I get--

THE COURT: They get to go first.

MR. SCHECK: So in other words, do you want to hear from them?

THE COURT: Yes, I do.

MR. SCHECK: All right.

MR. HARMON: Thank you, your Honor. I would like to just give you a little outline of the chronology and then we can go through it with Mr. Sims, if that is what the court would like to do. As the court recalls, on or about March 9, you approved, over the strong resistance of the Defense, our desire to combine these tests for--to take whatever results came out of them, let the chips fall where they may. Other I think significant events--and Mr. Sims will go through the chronology in detail to demonstrate to the court that these things were processed in an orderly fashion. Mr. Sims made trips to Los Angeles. Mr. Sims attended study groups during this time period. Mr. Sims consulted with me in anticipation of his testimony. He also prepared reports, personally prepared the extensive discovery that is required. All of these things occurred at the same time he was trying to satisfy the desire to have these results produced as expeditiously as possible. As the court knows, during his testimony, there was a death in his family which disrupted his life. He took proficiency tests. His testimony was disrupted by that personal event. It is my opinion that the court, if the court is interested in any chronology, the most important part is the beginning, so I invite the court to stop me when you think we've covered the area that you are interested in. At some point, once the RFLP process has begun--and by "Beginning" I mean the hybridization. That is a misconception that the process begins when you begin the hybridization. Dr. Gerdes lauded the Department of Justice for their meticulousness. In fact, everybody played off LAPD against DOJ, and now you will see as this hearing unfolds, they will be criticized as being as meticulous and fastidious as they were that making sure that even in spite of your approval of the combination, there were subsequent evaluations which had they not produced favorable results, Mr. Sims would not have proceeded with the combination, because it would have been against his scientific judgment to do so. But once the hybridization begins, and we will give you some numbers on how long each probe was allowed to hybridize, essentially you are stuck with however long it takes to develop the results. Some of the key dates that I think to keep in mind in trying to identify--and I have asked every time we have addressed this issue, precisely what is the legal issue that we are addressing here? Mr. Scheck has consistently complained that we have denied them access to that evidence and every time he has done that I've said, no, the balance is still there, it has been there since March if you really wanted to test it, so that never was an issue. I think if they wanted to fashion a legal issue that somehow they were forced to proceed with their case without knowing what the results were, you will see that the chronology does not support that. The outline actually lists the date that the People rested, which is July 6th. The Defense case began on July 10th. And if they complain that they were sandbagged, they didn't have to call Dr. Gerdes when they called him, they chose the date that they called him--and I think the court will see, when you begin--when they called Dr. Gerdes with what was known by the Defense in order to fashion and very carefully craft or carve a way around the overwhelming biological evidence in this case, you will see that Dr. Blake was once again a regular visitor there, was a regular reporter on the development of these probes. And as of the date of Dr. Gerdes' testimony the Defense was aware that there were in fact three RFLP probes which produced the results that were produced in this case.

THE COURT: Well, Mr. Harmon, maybe I can help you cut to the chase.

MR. HARMON: Sure. I would like to do that, your Honor.

THE COURT: What interests me most is the time period between March the 9th, when this court granted you permission to combine those samples for the purposes of attempting a single RFLP test, and the time that the test was actually undertaken.

MR. HARMON: Well, I think you will see it was undertaken right away, but we are going to differ on what undertaking the test means, but I would be happy to, because that will bring us all the way up to August, depending on how you define undertaken. So we will just start with March 9th and you tell us when you've had enough, your Honor. We've got the whole period of time covered. It will take a while, but maybe we will have our fifth probe before the hearing is over. So would you like me to have Mr. Sims testify?

THE COURT: Counsel, it is your record. Madam reporter, what is your time pressure?

REPORTER OLSON: I have none.

THE COURT: All right. Proceed.

Gary Sims, (402) recalled as a witness by the People, pursuant to evidence code section 402, was sworn and testified as follows:

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

MR. SIMS: I do.

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

MR. SIMS: My name is Gary Sims, G-A-R-Y S-I-M-S.

THE CLERK: Thank you.

MR. HARMON: Your Honor, I would be--I have put my own chronology together and I know Mr. Sims has reviewed it, these are my notes, but I don't have any problem sharing them with everybody. Would you like me to have a copy marked as well?

THE COURT: Yes, for the purpose of this hearing.

MR. HARMON: Would you like a copy, your Honor?

THE COURT: I would. Thank you very much.

THE CLERK: 613.

MR. HARMON: 613.

THE COURT: 613.

(Peo's 613 for id = document)

DIRECT EXAMINATION BY MR. HARMON

MR. HARMON: Mr. Sims, have you had a chance to review People's 613 for identification?

MR. SIMS: Yes, I have. That is the chronology of 303, 304 and 305.

MR. HARMON: Okay. And why don't we use the actual exhibit that has been marked. Is it your recollection that on or about March 19th, after some discussions and you filing an affidavit with the court, you received approval from the court, over the Defense's objection, to combine what remained of 303, 304 and 305 for the purposes of doing RFLP testing?

MR. SIMS: Yes. That was about March 9th.

MR. HARMON: Okay. Did you actually conserve some of the samples? Are there still samples remaining, to the best of your knowledge?

MR. SIMS: Yes. As I put in my declaration to the court that I would preserve samples on all of those, and in fact I did preserve samples on all three of those samples.

MR. HARMON: What did you actually do on March 9th?

MR. SIMS: On March 9th, one of the samples, 305, was brought back to the laboratory, and we spent a lot of time just documenting what was present in that sample and then sampling it and then repackaging for return.

MR. HARMON: Okay. How much time do you think you spent on that enterprise that day, March 9th?

MR. SIMS: It was probably the better part of the day. I don't know the exact number of hours.

MR. HARMON: Okay. March 10th, what did you do that day?

MR. SIMS: I had a meeting with you.

MR. HARMON: All day?

MR. SIMS: I believe that covered a lot of the day, yes.

MR. HARMON: Did you take Saturday and Sunday off?

MR. SIMS: I believe I did at that time, yes.

MR. HARMON: Okay. What--did you next do with respect to this case, any aspect of this case, or specifically samples 303, 304, 305?

MR. SIMS: Okay. At that point we did--on March 14th there was DQ-Alpha typing on that original sample of 303 and 304, and in other words, prior to the time that they were combined, so at this point we wanted to know that independently they shared a consistent DQ-Alpha type so that we could then proceed with the further analysis, and that DQ-Alpha typing was completed on March 14th.

MR. HARMON: Okay. Did you miss--I think you misspoke. Were 303 and 304 previously typed with any marker?

MR. SIMS: Yes. They had previously been typed in D1S80, as I recall.

MR. HARMON: Okay. And why did you pursue the DQ-Alpha testing with 303 and 304?

MR. SIMS: Well, the DQ-Alpha testing was to again look for consistency of the results to see whether or not it was consistent with the mixture of Mr. Goldman and Mr. Simpson.

MR. HARMON: Did you obtain consistent results on 303 and 304 consistent with what you had seen in 305?

MR. SIMS: Yes.

MR. HARMON: Okay. Had you not obtained consistent results on 303 and 304 with the DQ-Alpha marker, would you have gone ahead with combining those three samples for the purposes of RFLP testing?

MR. SIMS: I would think not.

MR. HARMON: Why is that?

MR. SIMS: Well, because then there wouldn't probably be enough DNA of the people that may be involved in that mixture to get an RFLP result. In other words, there may be other people. We have got an exclusion perhaps.

MR. HARMON: Okay. So as of March 14th then you had decided that even though you had the court's permission, that scientifically was appropriate in your mind to go ahead with combining those three samples?

MR. SIMS: That in--I wanted to do that testing. Even though I had the permission, I still wanted to look at those DQ-Alpha types before I did the actual combination.

MR. HARMON: How much time do you think you spent on these tests on March 14th?

MR. SIMS: That is probably about a half a day's work, something like that.

MR. HARMON: Okay. Do you recall if you did anything else with respect to this case on March 14th?

MR. SIMS: That's all my notes indicate.

MR. HARMON: Okay. March 15th, what activity did you--did you perform with respect to this case?

MR. SIMS: On March 15th I laid out in my notes, what samples I still planned to extract in this case. I included these--the combination samples as well as some other samples in this case.

MR. HARMON: So were there actually other samples being evaluated and tested in this case during this same time period?

MR. SIMS: Yes.

MR. HARMON: And are they listed in your notes?

MR. SIMS: Yes, they are.

MR. HARMON: Okay. March 16th, do you recall if did you any work on this case or the--or specifically the console stains?

MR. SIMS: I have nothing in my notes on that particular time. I should point out, too, sometimes what I'm looking at here are my laboratory notes and there are instances where I may be working on the case but not making entries in my laboratory notes. For example, I may be reviewing some other results or photographs or something like that, or consulting, that is not al showing up in these particular results--in these notes.

MR. HARMON: Now, just to jump ahead a little bit, did you have a report that you knew you were going to have to start putting together toward the end of the month?

MR. SIMS: Yes, there was. The second big report we put out was in early April and so we started getting ready for that also at this time.

MR. HARMON: Now, do you actually write in your notes "Getting ready to file report"?

MR. SIMS: No. That is a sample of the kind of time that would not show up on my lab notes.

MR. HARMON: And the notes you are referring to that actually reflect scientific or technical activities that you engage in?

MR. SIMS: Yes.

MR. HARMON: Okay. March 17th, what did you do on that date?

MR. SIMS: That was a time when we started some extractions on some--on some of these various samples that we listed. This is when we actually--I want to make sure I've got the right set here. This is--this is when we are actually doing the extraction of the combined set.

MR. HARMON: So when you say you are doing extraction, you can't use the DNA or you are not using the DNA that you used for PCR typing; is that true?

MR. SIMS: That's correct. At this point now we've--we are starting with the additional swatches to do the combination. In other words, we took those additional swatches that were from 303, 304 and 305 and we are extracting them now as a group.

MR. HARMON: As if you are starting the process from the very beginning?

MR. SIMS: That's right.

MR. HARMON: Okay. So you began the extraction on Friday, March 17th?

MR. SIMS: Yes. That--that was a Friday, I believe.

MR. HARMON: Okay. How much time do you think the activities that are reflected in your notes took?

MR. SIMS: I'm working on that at night it looks like. The time I've got is--there is two different sets going; one that goes in at 2120 hours and another one goes in at 2218 hours.

MR. HARMON: How many samples in each of those two sets?

MR. SIMS: There is about I think seven or eight in each one, something like that. Four--I'm sorry. Eight in one, I think six in the other.

MR. HARMON: And I assume you are taking your time?

MR. SIMS: Yes.

MR. HARMON: You didn't want to rush and be criticized the way Collin Yamauchi was?

MR. SIMS: Yes.

MR. HARMON: You wanted to be careful?

MR. SIMS: Yes.

MR. SCHECK: Objection.

MR. HARMON: Not have more than one tube opened at a time?

MR. SCHECK: I don't think we need this.

THE COURT: I agree. Let's pick it up.

MR. HARMON: Did you meet with me that day as well?

MR. SIMS: Yes, on March 17th that Friday, we did.

MR. HARMON: How much time did we spend together?

MR. SIMS: I think we spent the better part of the day.

MR. HARMON: And so you spent the day with me and then did the extractions at night?

MR. SIMS: Yes.

MR. HARMON: Okay. Did you work Saturday on this case?

MR. SIMS: Yes, I did.

MR. HARMON: What did you do Saturday, March 18th?

MR. SIMS: On March 18th I completed the--I completed the extraction on some of these sets. No, I'm sorry, I did not complete it. I continued the extraction on some of these sets and then it was on March 19th, Sunday, when the--the extraction was actually completed.

MR. HARMON: So you worked Saturday?

MR. SIMS: Yes.

MR. HARMON: How long?

MR. SIMS: Well, I have some additional notes that I may be able to--

MR. HARMON: Give us a ballpark.

MR. SIMS: I think it was a few hours on Saturday.

MR. HARMON: How about Sunday?

MR. SIMS: That--that is probably some more time there. That is maybe at least half a day, something like that. It could be longer. I'm not sure.

MR. HARMON: Okay. On Monday, March 20th, were you advised that the Defense had filed a new motion challenging the DNA evidence?

MR. SIMS: Yes. I think I--I think I was aware the very day that it was filed and I think that was on March 20th.

MR. HARMON: And soon thereafter did we send you a copy?

MR. SIMS: Yes.

MR. HARMON: Ask you to read it?

MR. SIMS: Yes. We decided that obviously that should be reviewed and discussed.

MR. HARMON: Okay. Did that ultimately take some time, toward the latter part of March, for you to review that motion and counsel us?

MR. SIMS: Yes. That was all part of the time.

MR. HARMON: March 21st, what sort of work did do you in this case?

MR. SIMS: Dr. Blake came over, reviewed some of the--the RFLP and PCR results in this case.

MR. HARMON: How much time did you spend with Dr. Blake that day?

MR. SIMS: I logged about three hours that day.

MR. HARMON: Do you recall if you did any--do your notes reflect specifically any other work you did on this case on that date?

MR. SIMS: No, my notes do not.

MR. HARMON: Okay. March 22nd, did you again perform some specific hands-on work on the console mix in this case?

MR. SIMS: Yes. On March 22nd I ran the yield gel on these particular samples, the Bronco console samples, as well as some of the other--the other extracted sample in this case.

MR. HARMON: Okay. Was there more than one set of samples upon--upon which you ran on the yield gel?

MR. SIMS: Yes, there were the two sets that I mentioned earlier.

MR. HARMON: So these are actually two separate yield gels?

MR. SIMS: It is what we call a double origin where you take one gel but you have two places where you enter samples, two parallel lines of slots.

MR. HARMON: And the purpose of the yield gel is to see how much DNA you extracted?

MR. SIMS: Yes, it tells you how much total DNA. It doesn't tell you whether or not it is all human.

MR. HARMON: How long do you think this work on both of these sets of samples in this case took on March 22nd?

MR. SIMS: Given the number of samples involved and all that, it was probably the better part of the day we spent on that.

MR. HARMON: March 23rd, what sort of activity did you participate in with respect to the sample you had processed on the 22nd?

MR. SIMS: The main thing that I did on the 23rd was to go through and actually evaluate the results of the--of the yield gel. And at that point I decided that I would--would want to do a--what we call a blotting of the yield gel to see whether or not the DNA that was present was human.

MR. HARMON: Now, why was that important to you?

MR. SIMS: Well, it was important because as we've talked about at length in this case, there were other samples where there was--appeared to be a lot of high-molecular weight DNA, but it was not of human origin. Some of it turned out to be not of human origin, so I figured it was worthwhile to evaluate whether or not the DNA that we saw at the high-molecular weight end, which is the RFLP-able type DNA, was in fact human.

MR. HARMON: Just to go back to the beginning, why was it your judgment, real briefly, to have to combine these three samples, 303, 304 and 305 for RFLP purposes?

MR. SIMS: Because individually I didn't feel there was enough there to get a good RFLP result and I wanted to operate optimize the chances of getting a clear RFLP banding pattern, and to do that I had to have more DNA to work with than any single one of those stains offered.

MR. HARMON: How much time do you think you spent on this case on March 23rd?

MR. SIMS: That--that looks like the better part of the day also, because there was the evaluation and then there was also the starting of the--the blotting process. My notes indicate I am working on that latter part around four o'clock in the afternoon and then I went overnight at 5:30.

MR. HARMON: Okay. Friday March 24th, you met with me again?

MR. SIMS: Yes.

MR. HARMON: Better part of the day?

MR. SIMS: Yes. The better part of the day, as I recall, was spent meeting with you. There was a relatively minor part of the time spent in the actual laboratory analysis.

MR. HARMON: What did do you in that relatively minor part of the time?

MR. SIMS: That is after the southern blot of the yield gel went overnight, then I processed it and it was not ready to be hybed and tested with the human probe.

MR. HARMON: What did you actually do that day and how long did it take, with respect to the console mix?

MR. SIMS: Well, what I'm doing is evaluating the yield gel for--I'm evaluating the yield gel to see whether or not the DNA on there was human on those samples. And so this is the part now where the southern blot has gone overnight and it is taken apart and then processed in a way that it is now ready to be probed to see whether or not there is human DNA there.

MR. HARMON: Okay. Now, this is not the RFLP probing, this is just to determine if it is human DNA?

MR. SIMS: That's correct. That's correct.

MR. HARMON: How long did dismantling the southern blot take that day?

MR. SIMS: Well, I'm starting on that, according to my notes, at 6:30 in the evening, so I believe I had spent most of the daytime talking to you, consulting, and then it is the latter part of the day then that we--that I actually did part in the laboratory and that is probably about a hour's worth of work, something like that, maybe less.

MR. HARMON: And when we talked, we talked about this case all day?

MR. SIMS: Absolutely.

MR. HARMON: Okay. You took Saturday and Sunday off, the 25th and 26th?

MR. SIMS: Yes, I believe I did.

MR. HARMON: And did you perform any work on this case on Monday, the 27th?

MR. SIMS: No, I don't believe I did.

MR. HARMON: Okay. And March 28th, did you give a training session somewhere?

MR. SIMS: Yes. I was asked to participate in a PCR round table discussion in a training class at--at what's called ABI.

MR. HARMON: What is that?

MR. SIMS: Applied bio systems. They are--they are part of the company that actually produces these kits, the PCR kits, and they put on training classes for how to do this kind of PCR testing. And as part of their training course they usually have an afternoon devoted to a round table type discussion of some of the issues that come up in courtroom interpretation, that sort of thing.

MR. HARMON: March 29th you got back to the blot of the yield gel?

MR. SIMS: Yes.

MR. HARMON: What did you do?

MR. SIMS: At that point I actually probed it with a human probe and product, what's called a lumirad which is like one of these autorads, but we are using a probe now that produces luminescence so you can actually read the intensity of these bands now to get an idea of how much human DNA is present in a sample on this particular gel.

MR. HARMON: And how long did you--did that work actually take that day?

MR. SIMS: That would have been the better part of the day. I have my final film coming off around looks like around 5:30 in the afternoon, something like that.

MR. HARMON: And so--strike that. Did you perform any other work, other than just getting that final film off, and was that it for that day?

MR. SIMS: Well, there is the whole hybridization process. That is done by the analyst, in this case me, during that whole course of the day, and you finally produce a film at the end of the day.

MR. HARMON: Okay. What I'm saying is when you ended up with the film, did you call it quits for the day?

MR. SIMS: Yes, I believe that is correct, for March 29th.

MR. HARMON: Okay. March 30th what did you do?

MR. SIMS: I attended a--the main thing I did that day was to attend a California association of criminalists DNA study group meet.

MR. HARMON: Further education?

MR. SIMS: Yes.

MR. HARMON: And March 31st you traveled to Los Angeles?

MR. SIMS: Yes. I came down here on that Friday. I spent all day down here.

MR. HARMON: That was an all day? And in my summary is it true you worked about 115 hours on this case in March?

MR. SIMS: Yes.

MR. HARMON: And you were working on five other cases as well that are not reflected in this chronology?

MR. SIMS: That's correct.

MR. HARMON: You were back in Berkeley on April 1st, on Saturday?

THE COURT: All right. Before you move on any further, Mr. Scheck, do you want to consult with your client for a moment.

(Discussion held off the record between Defense counsel and the Defendant.)

MR. SCHECK: Your Honor, I would ask--Mr. Simpson won't be able to eat if he doesn't leave now, so he has agreed to waive his presence for the remainder of the hearing.

THE COURT: All right. Mr. Simpson, is it agreeable to you that the court, witness and the lawyers continue the hearing and you agree to waive your presence for the remainder of the hearing?

THE DEFENDANT: Yes, I do, your Honor.

THE COURT: All right. You are excused.

THE DEFENDANT: Thank you, your Honor.

THE COURT: All right. Proceed.

MR. HARMON: Saturday, April 1st, you are back in Berkeley. What did you do?

MR. SIMS: This is just prior to the time when we produced the second major report in this case, so I was doing some actual--making some notes about sizing of autorads in this case and making assessments of the sizings.

MR. HARMON: And how much time do you think you spent that Saturday on this case?

MR. SIMS: I think it was on the order of about a half a day.

MR. HARMON: Sunday April 2nd did you also work on this case?

MR. SIMS: Yes. I was involved in preparing the written report.

MR. HARMON: How long do you think you spent on Sunday, April 2nd?

MR. SIMS: I don't recall the exact amount of time spent.

MR. HARMON: Okay. Monday, April 3rd, did you actually do any hands-on lab work in this case?

MR. SIMS: The hands-on work was to actually now look at those lumirads that I produced from this human probing and to make an assessment of the results.

MR. HARMON: You did that?

MR. SIMS: (No audible response.)

MR. HARMON: You did that on that day?

MR. SIMS: Yes, on April 3rd.

MR. HARMON: How much time do you think you spent on that aspect of this case on April 3rd?

MR. SIMS: That would probably be a couple hours at the most, something like that. That is not a lot of time.

MR. HARMON: Okay. April 4th what sorts of decisions or evaluations did you make in light of everything you have described to the court to date?

MR. SIMS: Well, that--that was the point at which in my notes I commented that, you know, now I felt I had established that there was high-molecular weight human DNA in the combined sample. I had evaluated some other samples also and in my notes on April 4th I say regarding 303, 304 and 305, proceed to RFLP.

MR. HARMON: Okay. Did you also perform other work on this case?

MR. SIMS: Yes. Dr. Blake came over again on that day and I also did some additional work toward getting the report out and there was also some work on the discovery package at that time, too, so that was a pretty busy day.

MR. HARMON: Okay. April 5th what kind of work did you perform on this case?

MR. SIMS: Report preparation also.

MR. HARMON: And then April 6th did you and Renee Montgomery come down to Los Angeles?

MR. SIMS: Yes. I came down on April 6th with Renee Montgomery. I consulted with you and I believe that was when the report and the discovery package was delivered.

MR. HARMON: You actually hand-carried the material down here?

MR. SIMS: Yes, that is my recollection for April 6th.

MR. HARMON: Okay. April 9th, a Sunday, what did you do on that date with respect to this case?

MR. SIMS: On April 9th there was some consultation with you on that Sunday and there was--that was the main thing that day.

MR. HARMON: April 10th?

MR. SIMS: Yes. On April 10th I think--I think I may have misstated April 6th. I'm not sure I delivered the discovery package on April 6th, I think it was just the report that actually came down on April 6th, because I noted that there is more discovery going on as we get into like April 10th and April 11th.

MR. HARMON: So you continued to work on the discovery after you filed the report?

MR. SIMS: Yes. I think--I think that's correct. I think I misstated that the discovery was delivered on April 6th. We could check that.

MR. HARMON: Okay. And the outline that we've prepared lists discovery prep on April 10th and April 11th?

MR. SIMS: Yes.

MR. HARMON: No actual laboratory work on the console mix in this case; is that true?

MR. SIMS: That's correct.

MR. HARMON: Then April 13th and 14th you have listed preparation for testimony?

MR. SIMS: Yes. At this point I--I began in earnest to prepare for the upcoming testimony which I anticipated could be some time in either the end of April or in early May, something in there.

MR. HARMON: And why did you decide to do that instead of continuing with the RFLP testing at that point?

MR. SIMS: Yes. Well, I--I--two reasons: One is that there was a large volume of material that I felt I needed to be responsible for. In other words, that I had to be prepared to be cross-examined; and also to present direct testimony on a large number of items and a large number of typing results. And also I wasn't sure what sorts of issues might be raised by the Defense based on that motion of March 20th, so I--I prepared in earnest to get all the literature articles in order, that sort of thing, review as many of them as I could and then also to have plenty of time to study my own notes, just the actual notes in this case and not just the other--the other issues involved.

MR. HARMON: Did you take Easter Sunday off?

MR. SIMS: Yes, I did.

MR. HARMON: Okay. The next week, April 17th and 18th, did you continue your preparation for trial testimony?

MR. SIMS: Yes.

MR. HARMON: The 19th and 20th as well?

MR. SIMS: Yes. I believe on the 19th there was some additional analysis as far as just reviewing results.

MR. HARMON: But no actual--

MR. SIMS: Nothing in the lab.

MR. HARMON: No lab work?

MR. SIMS: That's correct.

MR. HARMON: Okay. You took April 21st, Friday, off?

MR. SIMS: Yes. That was when my kid's had a school holiday that week and so I took that Friday off.

MR. HARMON: Okay. Then the following week on April 25th did you actually get back to discussing specifics on the console combinations in this case?

MR. SIMS: Yes. I decided at this point that I would try to get that RFLP work going and that was April 25th.

MR. HARMON: What did you actually do on the 25th?

MR. SIMS: On the 25th there was a--I outlined in my notes what sort of results we had on the--this goes now just not the 304, 305, that combination sample, but also the other samples that were being extracted and evaluated at that time. But there were decisions made as to whether or not some of those other samples should go through what we call the slot-blot process because, in other words, there was not enough human DNA in some of those to detect it on the blot of the yield gel, so we had to do an additional test for human DNA on some of those samples. So I made some notes there. I provided some tubes, some extracts to Renee Montgomery for her to proceed with that. And then also on that 25th I actually began to outline how I would do the RFLP, to plan the RFLP on the Bronco console.

MR. HARMON: What sort of planning do you think was entailed in that?

MR. SIMS: It was--it was a fairly involved process because of the limited amount of sample that was available. It involved looking at those reference samples, well the combined console sample now, because that I basically knew what I had to work with. At that point I knew I had about 72 nanograms total available from that console, something like that. I knew that given that low level--and I also knew that it was a mixture of sample, so that told me that I had a very low level of DNA to work with, and in trying to balance an RFLP gel, one wants the samples to be in fairly good balance so that the bands are not blown out on some samples and then very weak on others. And so as part of that balancing act I had to go through what I had of the reference samples from the Defendant, from Nicole Brown and from Ronald Goldman, and to evaluate how much of those extracts I would use to do this restriction analysis.

MR. HARMON: Did you also continue to prepare for your testimony on that day?

MR. SIMS: Yes. I believe there was also some time spent on that day doing that, too.

MR. HARMON: How about the 26th, what sort of activities did you do with respect to this case on that date?

MR. SIMS: On the 26th I actually got the tubes out. After having planned it the day before on the 25th, I got the tubes out on the 26th and checked them to see if there was enough sample on these, because on some of these now I was running out of sample. For example, on the Defendant's extract I was getting low on the sample that we had had from one of his swatches that had been extracted, and so I had a note here that I needed to check this previous reference extraction sample and see if there was enough of his extracted DNA to get a sufficient quantity to put on this RFLP gel.

MR. HARMON: How much actual hands-on time was involved on April 26th with respect to these samples?

MR. SCHECK: Which samples?

MR. HARMON: The ones he is talking about on the 26th.

MR. SCHECK: We are not talking about console samples. He hasn't been for a while.

MR. SIMS: You are talking about as far as the reference sample and that?

MR. HARMON: The 26th, all the samples?

MR. SIMS: Yes. That is the thrust of what I'm doing at that point. Again, it is difficult to say just looking at these notes, but it is probably about a half a day, something like that.

MR. HARMON: Now, you are going to run these reference samples with the console mix, right?

MR. SIMS: That's right. In other words, they are going to be restricted at the same time and they go through the whole process at that point together.

MR. HARMON: Okay. How about the 27th, what did you do that day?

MR. SIMS: Umm, there was preparation for testimony on the 27th and also I attended a study group meeting for the California association of criminalists.

MR. HARMON: Further education?

MR. SIMS: Yes.

MR. HARMON: Okay. Friday, the 28th of April?

MR. SIMS: Yes. On the 28th of April, as I'm looking at my notes--in the interim Renee Montgomery had run a slot-blot analysis of some of these other samples, and this doesn't relate now to the center console; this relates to some of the other samples that were extracted at that time. And I went through with her the analysis and the quantitations on those samples. Dr. Blake came over that afternoon. We spent about two hours reviewing some autorads as well as the quantitations.

MR. HARMON: Okay. Then you met with me as well?

MR. SIMS: Yes. I met with you on April 28th, Friday, also.

MR. HARMON: Now, these other samples, these are not the console samples, right?

MR. SIMS: That's correct.

MR. HARMON: But there are other samples in this case?

MR. SIMS: Yes.

MR. HARMON: Other samples that could have tended to incriminate or exonerate Mr. Simpson?

MR. SIMS: Yes.

MR. HARMON: The summary notes for April reflect that you were working on one other case during that month. Does that sound right?

MR. SIMS: Yes.

MR. HARMON: And you worked about 108 hours on this case?

MR. SIMS: Yes.

MR. HARMON: Okay. In May, Monday, May 1st, what sort of work was done by you or Renee Montgomery with respect to this case?

MR. SIMS: On Monday, May 1st, Renee Montgomery reran some D1S80 samples.

MR. HARMON: Okay. Did you actually do any lab work on this case on May 1st?

MR. SIMS: No, I don't believe so.

MR. HARMON: Okay. May 2nd. What sort of work did you do on this case on May 2nd?

MR. SIMS: The one--the one interjection I wanted to make when you asked me if I did any other lab results, keep in mind also that during this whole process we are developing autorads, for example, and that is--sometimes that is involved as far as developing and looking at them and deciding what kind of exposures we are going to use and that is not reflected in any of these lab notes.

MR. HARMON: And there is no way to reconstruct that, is there?

MR. SIMS: Not simply, no, but it could be done, but it is not--it is not simple, but that is part of the process, and I haven't addressed any of that, that is going on as we are doing all of this.

MR. HARMON: Okay. May 2nd, what kind of work did you do?

MR. SIMS: Again, at this point we are--I'm very much in the preparation mode. I put together--I worked on what we call the photo look of keeping track of all the photographs that were taken.

MR. HARMON: May 3rd?

MR. SIMS: I have six and a half hours of preparation for testimony.

MR. HARMON: May 4th?

MR. SIMS: I have eight hours of preparation for testimony.

MR. HARMON: May 5th?

MR. SIMS: May 5th in my notes I indicate that I am working with Renee Montgomery again on some of these additional samples.

MR. HARMON: In this case?

MR. SIMS: In this case, right.

MR. HARMON: May 6th, Saturday?

MR. SIMS: Yes. May 6th, Saturday--May 6th, which was Saturday, I again spent some time in preparing.

MR. HARMON: And May 7th you came down to L.A.?

MR. SIMS: Yes. This was on Sunday. I came down to Los Angeles.

MR. HARMON: With Renee Montgomery?

MR. SIMS: Yes.

MR. HARMON: And how long did you stay in Los Angeles during that segment?

MR. SIMS: I was there from Sunday to Friday.

MR. HARMON: And what was going on that week?

MR. SIMS: That was the point--the time at which Dr. Cotton was testifying and I was monitoring her testimony.

MR. HARMON: Now, in your laboratory you don't have underlings that actually do bench work for you; is that correct?

MR. SIMS: Well, that's correct. The only thing that we have, as far as having other people working with us, I wouldn't use the term "Underlings," but they are people that are, for example, involved in the batch processing, batch probing process.

MR. HARMON: Okay. So when did you return to Los Angeles?

MR. SIMS: It was on Sunday, May 14th.

MR. HARMON: And then what were you doing those weekdays that you were down here?

MR. SIMS: Well, the following weekday, the 15th was a Monday, I was standing by for testimony and my testimony actually began on Tuesday, May 16th and went through Friday, May 19th.

MR. HARMON: Okay. There was a death in the family?

MR. SIMS: That was on May 19th in the evening.

MR. HARMON: And did that interrupt your testimony?

MR. SIMS: Yes, it did.

MR. HARMON: And when did you return to the Bay area?

MR. SIMS: Well, I returned to the Bay area on--

THE COURT: Well, counsel, this part is all part of the court's recollection as to these events.

MR. HARMON: All right.

THE COURT: These personal events of Mr. Sims. Let's move on.

MR. HARMON: Sure.

MR. HARMON: We are up to the end of May in the summary?

MR. SIMS: Yes.

MR. HARMON: You have listed 172.5 hours on this case and you worked on no other cases during the month of May; is that correct?

MR. SIMS: That's correct.

MR. HARMON: You completed your testimony on June 1st?

MR. SIMS: Well, that is not strictly true, because I did testify later in June also as I recall.

MR. HARMON: That--

MR. SIMS: June 20th, but that segment, yes.

MR. HARMON: That segment of your testimony. On June 6th you do again return to working actual bench work on this case; is that right?

MR. SIMS: Yes.

MR. HARMON: Okay. Now, would you describe what the next steps of the process entailed and why you had to wait so long to begin them, if you did.

MR. SIMS: (No audible response.)

MR. HARMON: You have described everything up to this point and everything else that you did. What would the next steps in the process be and why didn't you do them before?

MR. SIMS: Okay. The--the main steps in the process would be the restriction analysis where you actually restrict the DNA, and that goes overnight, then the next step is to purify and reconcentrate that DNA and then set it up on the actual electrophoresis, the analytical gel, and that goes over another night. Then the next day one would do the southern blot and then that would go overnight, and so this is a series of events that take place. Specifically once the analytical gel is put into motion, that would be like toward the end of one day, then there is a time period where you basically have to follow up at certain precise times. So for example, you could do the restriction and then put those samples aside and then do the electrophoresis at a later date, but once you start that electrophoresis, then you are tied into a three-day period.

MR. HARMON: Well, did--is that just the way you do it or is that the accepted protocol?

MR. SIMS: That--I believe that is pretty much standard protocol in most RFLP laboratories.

MR. HARMON: And having that need, once you get started in the process, to do it continuously, was it--did that affect your ability to do it during the month of May?

MR. SIMS: Well, certainly May--May was very much disrupted by the testimony and being in Los Angeles.

MR. HARMON: Okay. So on June 6th then what did you do?

MR. SIMS: June 6th was back in the laboratory. I don't believe--I think there is some review going on at that point and discussion perhaps and then it is actually June 7th when I set up the actual restriction.

MR. HARMON: And did that couldn't over to the 8th?

MR. SIMS: Yes. The restriction went overnight from June 7th to June 8th.

MR. HARMON: And then June 9th you took the day off?

MR. SIMS: Yes. This was at a time when my--my children were out of school and I took that day off.

MR. HARMON: And the weekend? You didn't work Saturday and Sunday?

MR. SIMS: Yes. I was ordered not to work that weekend, as I recall.

MR. HARMON: June 12th you came back to work and I have listed two hours of analysis. What did that entail?

MR. SIMS: That--that may have been some actual evaluation of autorads at that time. I don't have anything in my working notes about June 12th, so I believe that is--that is probably some evaluation of autorads that were coming.

THE COURT: All right. Mr. Harmon, ten minutes.

MR. HARMON: Okay. We are just getting to the good part, your Honor. Good.

MR. HARMON: June 13th you set up the analytical gel which actually produced the autorads in this case; is that right?

MR. SIMS: That's correct. In other words, that electrophoresis went overnight, June 13th.

MR. HARMON: Set up the southern blot on the 14th?

MR. SIMS: Yes, and that went overnight.

MR. HARMON: On the 15th, a membrane was ready for hybridization?

MR. SIMS: That's correct.

MR. HARMON: And when did you actually begin the hybridization process for that first probe?

MR. SIMS: That would have been June 15th.

MR. HARMON: And how long did that probe hybridize or how long did you allow it to hybridize to produce a gel?

MR. SIMS: That first probe was for locus D2S44 and that took nineteen days before it was complete.

MR. HARMON: Why did you take so long?

MR. SIMS: The results were weak.

MR. HARMON: Did you soon thereafter begin probing with a different probe?

MR. SIMS: The next probe was for locus D4S139.

MR. HARMON: How long was that allowed to hybridize for?

MR. SIMS: That went twelve days.

MR. HARMON: To the 19th?

MR. SIMS: Yes, I believe that's correct.

MR. HARMON: Then what probe did you begin with after that?

MR. SIMS: Then the next locus was D5S110 and that went nine days to the 5th of August.

MR. HARMON: July 27th to August 5th?

MR. SIMS: Yes.

MR. HARMON: And then the fourth probe, which is--what is the designation of the fourth locus?

MR. SIMS: The locus is D10S28 and that was a ten-day exposure from August 26th to 9/5, September 5th.

MR. HARMON: And you actually have a fifth probe hybridizing as we speak, or hopefully?

MR. SIMS: We have a film sitting on a hybridized membrane as we speak.

MR. HARMON: Okay. All right. I think that covers it. Thank you, your Honor.

THE COURT: What is your guess as to when that one might be ready, this last one?

MR. SIMS: I was planning on looking at that tomorrow is when I have it designated for the first film to be looked at. And then at that point I make an evaluation as to how much longer the other film--I don't know if this is new material, but the way we do it is we have a sandwich with a membrane in between two films. We look at the top film, which is called the non-DNA film first, and that gives an idea of how it is developing, and then we make a decision at that point as to how long the final film will stay on there.

THE COURT: All right.

MR. HARMON: I just have one other question.

MR. HARMON: Was Dr. Blake alerted every time you had a new autorad to see to give him an opportunity to come over and take pictures of it?

MR. SIMS: Yes. I kept Dr. Blake informed of that. The only one I don't think he is aware of is this very last--I'm sorry, this fourth one, but I provided that in discovery last week when I was down here on Thursday.

MR. HARMON: Thank you, your Honor.

THE COURT: Mr. Scheck.

MR. SCHECK: How long?

THE COURT: I'm sorry?

MR. SCHECK: I will try to be brief, but I'm mindful--

THE COURT: Yes. We are going to quit at 6:30. Sorry. We will start at 8:30.

MR. SCHECK: Well, I will see if I can get right to the point.

THE COURT: Okay.

CROSS-EXAMINATION BY MR. SCHECK

MR. SCHECK: Mr. Sims, you knew going into this process that the longest part of it would be the period of time that the probes were hybridizing?

MR. SIMS: Yes.

MR. SCHECK: You knew that that part of the process would take something on the order of fifteen days, sixteen days per probe, given the small amount of high-molecular weight human DNA you had?

MR. SIMS: Well, I think--I think it was in mid-May that I informed the court that I would need about two months.

MR. SCHECK: Please answer my question.

MR. SIMS: Well, I'm trying to use that--

MR. SCHECK: No.

MR. SIMS: --because you are giving me a specific--

MR. SCHECK: All right. I'm giving you a very--I will make it easier for you. All right. By March 22nd you had done the quantitations on the combination and knew that you had 72 nanograms of high-molecular weight human DNA from 303, 304 and 305, right?

MR. SIMS: No, that is incorrect. I didn't know as of March 22nd that that was human DNA.

MR. SCHECK: All right. All right.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: You are saying you knew you had 72 nanograms as of March 22nd, right?

MR. SIMS: Yes.

MR. SCHECK: And then on April--by April 4th certainly you knew that that was 72 nanograms of high-molecular weight human DNA?

MR. SIMS: Yes.

MR. SCHECK: But it would be a fair statement that certainly by March 22nd you knew, if you only had 72 nanograms of at best human DNA, that the RFLP tests here would be longest in terms of elapsed time from the moment that that probe began to hybridize, right?

MR. SIMS: Yes.

MR. SCHECK: So you knew that would be the long part of the process that would drag it out?

MR. SIMS: Yes.

MR. SCHECK: And if you wanted to get this done in a timely fashion before the end of the Prosecution's case, you had to get the probe started right away, correct?

MR. HARMON: Objection. That is argumentative.

THE COURT: Overruled.

MR. SIMS: Well, I don't think I had any idea of how long the Prosecution's case would be at that point in time.

MR. SCHECK: Were you aware that when the court ordered that this combination could be--could take place, that it was the understanding stated in open court that this process of RFLP testing should be done immediately, if not sooner, quote-unquote?

MR. SIMS: I--I don't recall that exact language, no.

MR. SCHECK: Nobody communicated to you that this court said that it was its understanding that the RFLP process for the combined stains should begin immediately, if not sooner?

MR. SIMS: Well, I know that the--the Prosecution, which would be through Mr. Harmon, encouraged me to get this done as soon as I could, yes, but I don't recall the court ordering that--

MR. SCHECK: All right.

MR. SIMS: --to me.

MR. SCHECK: In your discussions to get this done as soon as it could be, did you inform Mr. Harmon, as of June--March 22nd, when you knew you only had 72 nanograms of DNA, that the long part of this process would be the time that the probes began to hybridize?

MR. HARMON: Objection. It is irrelevant what he told me.

THE COURT: We have asked that question already, haven't we?

MR. SCHECK: I just want to establish that Mr. Harmon knew.

THE COURT: I think we can assume Mr. Harmon knows how the process works.

MR. SCHECK: I think he does, but I guess it is just for the purposes of the record. We all know he knows.

THE COURT: All right.

MR. SCHECK: Now, in terms of this process--and I call your attention now to the questions that Mr. Harmon was asking you about the process that you prefer to do over three consecutive days involving the restriction, analytical gel and southern blot, now the restriction we all are talking about is putting that DNA into a test-tube with the restriction enzyme and cutting it up, right?

MR. SIMS: Yes.

MR. SCHECK: And that--in terms of hands-on work, that takes, what, an hour?

MR. SIMS: Something like that. Something along that line.

MR. SCHECK: And then you just let it sit overnight?

MR. SIMS: Yeah.

MR. SCHECK: He was asking you questions about how you prefer to do it over three consecutive days, but you didn't even do this over three consecutive days?

MR. SIMS: I think that misstates my testimony. What I said is you can do the restriction separately and then set it aside. The three consecutive days are you do one day where you do the analytical gel overnight, the next day which is the electrophoresis, and then the next day is the southern blot overnight and then there is a third day where you have to dismantle the southern blot, so that is the three days that you need in a row that I spoke of.

MR. SCHECK: All right. So in terms of the restriction, it is one hour's of hands-on work and then you leave it overnight?

MR. SIMS: Well, I would object to that characterization of one hour of hands-on work, because it is not just hands-on work; it is evaluating how much sample you have to put into this situation. In this particular case it is making sure we have enough sample. That sort of thing.

MR. SCHECK: Wait a minute. I'm just--you just told us a second ago to do the restriction it took an hour of hands-on work. Just a second ago you said that--

MR. SIMS: Well, no. I agree with that being an hour of hands-on work, but I'm saying it is a lot more than hands-on work, that is my point.

MR. SCHECK: That is my question, thank you. You let that sit over night and the analytical gel is two hours of hands-on work and then you let that go overnight?

MR. SIMS: No, I disagree.

MR. SCHECK: All right. How many hours of hands-on work does it take you to put the DNA into the analytical gel, because that is what is at issue here?

MR. SIMS: Well, no. I don't mean to be argumentative, but I think you have to remember that after you've restricted the DNA, you have to do an evaluation, you run a digest gel, you have to then--

MR. SCHECK: Just give me an estimate of hours to prepare?

MR. SIMS: That is about a day's work, about a day's work after you do the restriction to get it now going overnight to do an analytical gel.

MR. SCHECK: You are saying it takes you a day to prepare the analytical gel. Come on?

MR. SIMS: Yes.

MR. HARMON: Your Honor--

MR. SCHECK: One day for the--

THE COURT: Argumentative, counsel.

MR. HARMON: Your Honor, that is not very courteous for him to say "Come on."

MR. SCHECK: No. I'm very fond of Mr. Sims. I mean no disrespect to him.

MR. HARMON: The jury is out on that, too.

MR. SCHECK: I'm only trying to get at the truth.

MR. SCHECK: Mr. Sims, the southern blot, how long does it take you to prepare the southern blot? An hour and a half, two hours?

MR. SIMS: After the overnight electrophoresis, then it is about two hours of work to set up the southern blot.

MR. SCHECK: All right. So you can do the restriction, the analytical gel and the southern blot, in what, three days?

MR. SIMS: We are now through that process, yes. There would be about three days, something like that.

MR. SCHECK: All right. So it would take you--and part of that--it is not just three days of consecutive work. Part of that is you just have to let things go overnight?

MR. SIMS: That's correct.

MR. SCHECK: All right. So before you get to the phase where there is this long elapsed time of letting the probe sit, you needed to do, essentially, work that would take three days to complete, right?

MR. SIMS: Something like that, yes. Three--

MR. SCHECK: Three--

MR. SIMS: I'm sorry, three or four. I would like to say three or four.

MR. SCHECK: Let's try three or four days to complete?

MR. SIMS: Yes.

MR. SCHECK: But in those three or four days, for example, if you had done the restriction, which you told us takes about a hour, and you let it sit overnight, you could have done the restriction in an hour and had a conversation with Mr. Harmon about discovery or preparation or other things, right?

MR. SIMS: Well, that is not really true, because a lot of these things are done at the end of the day. For example, the restriction is usually set up as the last thing that goes overnight, so it is not the sort of thing where I would do that the first thing in the morning and then later in the day talk to Mr. Harmon. That is not clear.

MR. SCHECK: Let's get--

THE COURT: Counsel, we--

MR. SCHECK: I have one last question, your Honor, that you might want to think about overnight, and this will be it.

THE COURT: All right.

MR. SCHECK: From March 22nd when you knew that you had 72 nanograms of DNA and there would be a very extensive time period on the development of each probe, to the time that you went through what you described as the three or four-day process that would be necessary to get those probes in motion--right, that is the time period, okay?

MR. SIMS: Okay.

MR. SCHECK: So it is March 22nd and you began that process of getting those probes, that three or four-day preparation time to get the probes in motion, you began that on June 7th?

MR. SIMS: Yes, I believe that is the right day is June--June 7th.

MR. SCHECK: And it is your testimony that between March 22nd and June 7th you couldn't find three days to get that in motion so that the RFLP tests on the combined samples could be ready before the end of the Prosecution's case; is that right?

MR. SIMS: Well, it is the point that I did not find that. I came very close to doing this at the end of April, but I was not--I did not complete it at that time.

MR. SCHECK: And you are not the only person that was doing--just so the Judge understands, in terms of these batch technicians, they are the ones that actually deal with the RFLP probes, technicians in your lab?

MR. SIMS: Yes.

MR. SCHECK: And Renee Montgomery, she was working on this case, too?

MR. SIMS: Yes.

MR. SCHECK: And she was doing PCR tests?

MR. SIMS: Yes.

MR. SCHECK: And she was doing--helping with the RFLP tests?

MR. SIMS: That's not true.

MR. SCHECK: She didn't do any of these--didn't she do slot-blots and yield gels on some of these samples?

MR. SIMS: She did on some of the samples, but I don't believe she did any with regards to these particular samples, no.

MR. SCHECK: See is capable of it?

MR. SIMS: Yes.

THE COURT: All right. We will stand in recess until 8:30.

MR. KELBERG: Your Honor, it might be helpful to the court, you wanted references Dr. Gerdes' testimony on the stains.

THE COURT: Yes.

MR. KELBERG: Mr. Clarke has been kind enough to bring them down. He is not sure of the volume numbers, but he has the dates of the testimony.

THE COURT: All right.

MS. CLARK: Your Honor, there are two witnesses that the Defense, without telling me about or asking anyone, they went directly to the witnesses, Kevin Schott and Robert Lee and told them that they had to stay until tomorrow at noon. Their flight is scheduled for eight o'clock in the morning. They had a full opportunity to review the witnesses and their testimony is complete in the People's rebuttal case. If the Defense seeks to have them subpoenaed, they may do so, and I don't see any cause for them to be required to stay longer than their flight would indicate. And I'm asking leave of the court--

THE COURT: Well, Mr. Sims, tomorrow morning at 8:30. Thank you.

MS. CLARK: I'm asking leave of the court to let the witnesses go.

THE COURT: Mr. Scheck.

MR. SCHECK: Your Honor, I feel like the court now. I've been here with you. I don't know what they are talking about.

THE COURT: Those witnesses were released from further testimony. There was no request to keep them.

MS. CLARK: Thank you.

THE COURT: All right. We will be in recess, 8:30.

(At 5:35 P.M. an adjournment was taken until, Tuesday, September 12, 1995, 9:00 A.M.)

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

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

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Monday, September 11, 1995 volume 220

Pages 44836 through 44946, inclusive

(Pages 44834 through 44835, inclusive, sealed)

(Pages 44890 through 44900, inclusive, sealed)

APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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: William J. Hadden, Esquire S. David Hotchkiss, assistant city attorney

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

I N D E X

Index for volume 220 pages 44836 - 44946

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

Day date session page vol.

Monday September 11, 1995 A.M. 44836 220

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

PROCEEDINGS

Motion re disclosure of Detective Purdy's personnel files 44836 220

Motion re scope of rebuttal 44851 220

Motion re striking of Detective Fuhrman's testimony 44906 220

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-CD Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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

CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

(None this volume)

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

EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

1370 - Chart 44856 220 prepared by attorney Robert Blasier

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

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

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Monday, September 11, 1995 volume 220A

Pages 44947 through 45189, inclusive

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

APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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

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

I N D E X

Index for volume 220A pages 44947 - 45189

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

Day date session page vol.

Monday September 11, 1995 P.M. 44947

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

PROCEEDINGS

Rebuttal 44973 220

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

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

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

CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Krueger, Mark 44976MC 44984BB 44989MC 44992BB 220A

Renken, Bill 44996MC 220A (Resumed) 45020MC 450Q24

Renken, Bill 45013MC 45014BB 220A (402)

Schott, Kevin J. 45037MC 45044BB 45050MC 220A

West, Stewart 45066MC 45071BB 220A

Romano, Michael 45076MC 45080BB 45082MC 45083BB 220A

Guidera, Debra 45085MC 45095BB 220A

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DEFENSE (402) witnesses direct cross redirect recross vol.

Sims, Gary 45143RH 45178BS 220A (402)

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ALPHABETICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Guidera, Debra 45085MC 45095BB 220A

Krueger, Mark 44976MC 44984BB 44989MC 44992BB 220A

Renken, Bill 44996MC 220A (Resumed) 45020MC 450Q24

Renken, Bill 45013MC 45014BB 220A (402)

Romano, 45076MC 45080BB 45082MC 45083BB 220A Michael

Schott, Kevin J. 45037MC 45044BB 45050MC 220A

Sims, Gary 45143RH 45178BS 220A (402)

West, Stewart 45066MC 45071BB 220A

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

605 - Photograph 44977 220A of the Defendant with a glove on his right hand

605-A - Photograph 44979 220A (Enlarged) of the Defendant with a glove on his right hand

605-B - Photograph 44979 220A close-up of the Defendant with a glove on his right hand

605-C - Photograph 44989 220A of the Defendant with a glove on his right hand and a red circle (Computer printout)

606 - Photograph 44997 220A (Enlarged) of the Defendant gloves on his hands and two other individuals

606-A - Photograph 44999 220A (8-by-11) of the Defendant gloves on his hands and two other individuals

606-B - Photograph 45000 220A of the Defendant holding an umbrella with his gloved hands

606-C - Photograph 45000 220A (Close-up) of the Defendant holding an umbrella with his gloved hands

606-D - Photograph 45002 220A of the Defendant holding a microphone with his gloved hands conducting an interview with two individuals

606-E - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with two individuals

606-F - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with two individuals

606-G - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with one individual

606-H - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with one individual

606-I - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with one individual

606-J - Photograph 45004 220A of the Defendant holding a microphone with his gloved hands conducting an interview with one individual

607 - Videotape 45010 220A of the Defendant conducting an interview

608 - Photograph 45038 220A of a side view of the Defendant with a glove on his right hand

608-A - Photograph 45040 220A of a front view of the Defendant with a glove on his right hand

608-B - Photograph 45040 220A of a close-up view of the Defendant with a glove on his right hand

608-C - Photograph 45040 220A (Enlarged) of a side view of the Defendant with a glove on his right hand

609 - Brown glove 45053 220A (Right hand)

610 - Photograph 45067 220A of the Defendant holding items with gloved hands

610-A - Photograph 45068 220A (Enlarged) of the Defendant holding items with gloved hands

610-B - Photograph 45069 220A close-up of the Defendant holding items with gloved hands

611 - Photograph 45077 220A (Horizontal) of the Defendant's left gloved hand

611-A - Photograph 45077 220A (Horizontal) close-up of the Defendant's left gloved hand and the Defendant's mouth

612 - Photograph 45086 220A (Vertical) of the Defendant with gloved hands holding a microphone

612-A - Photograph 45086 220A (Enlarged) (Vertical) of the Defendant with gloved hands holding a microphone

612-B - Photograph 45086 220A close-up of the Defendant with gloved hands holding a microphone

612-C - Photograph 45097 220A close-up of the Defendant's gloved hands with a circle (Computer printout)

613 - 11-page document 45142 220A entitled "Chronology of 303, 304, 305"

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DEFENSE for in exhibit identification evidence page vol. Page vol.

1371 - Photograph 45072 220A of the right hand of the Defendant with glove (Computer printout)