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

APPEARANCES: (Appearances as heretofore noted, the Defendant not being present, but represented by counsel; also being present, William J. Hadden, Esquire, on behalf of Detective Purdy; Anne H. Egerton, Esquire, on behalf of NBC.)

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

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

(Pages 45190 through 45191, volume 221A, 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 not present, having previously waived his presence for the purpose of this hearing. The jury is not present. Mr. Sims, would you resume the witness stand, please.

Gary Sims, (402) the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. Mr. Gary Sims is on the witness stand undergoing cross-examination by Mr. Scheck.

CROSS-EXAMINATION (RESUMED) BY MR. SCHECK

MR. SCHECK: Mr. Sims, when we left off last evening we were talking about the gap in time between your discovery on March 22nd that you had something on the order of 72 nanograms in the combined sample and the commencement of the three to four-day process of the creation--putting the first probes for development on the gels. Do you recall that?

MR. SIMS: Yes.

MR. SCHECK: All right. Now, just to get back so the record is clear, when you discovered that you had 72 nanograms on March 22nd, you knew this was a mixture?

MR. SIMS: There were--there were indications that that was a mixture at that point, yes. This is March 22nd now?

MR. SCHECK: Yes.

MR. SIMS: Yes.

MR. SCHECK: In other words, the three samples that you are combining here, 303, 304 and 305, it was your expectation that that was a mixture, and based on your previous results it would primarily be DNA that you had previously found to have markers consistent with O.J. Simpson and there would be minor contributions from DNA consistent with Mr. Goldman and consistent with Nicole Brown Simpson on PCR markers?

MR. SIMS: Yes. In other words, there was--I knew at that point that we had a mixture. That is correct, on March 22nd.

THE COURT: Excuse me just a second. Mr. Blasier, if you want to conduct interviews, why don't you do it outside.

MR. BLASIER: I'm sorry, your Honor.

THE COURT: Mr. Scheck.

MR. SCHECK: All right.

MR. SCHECK: And it was your expectation, based on your previous results, that if you had DNA results consistent with Mr. Goldman's DNA, in the combined samples, that that contribution would not be the primary one in the mixture?

MR. SIMS: I knew that the potential contribution of Nicole Brown was--was certainly the weaker allele from the D1S80 results. The DQ-Alpha was a little bit closer than that. It wasn't--wasn't so clear that there would be a major and minor difference between Mr. Simpson and Mr. Goldman's potential types.

MR. SCHECK: Well, didn't you previously indicate, with respect to some of the 303, 304 and 305 stains, that it was your finding that as to some of them the DNA from--consistent with Mr. Simpson was the primary contribution and that--in those mixtures?

MR. SIMS: I believe that was true on one of those that we had tested earlier, but that is one of those three.

MR. SCHECK: Now--but the point here is, is that you had your--you were combining samples that you knew or that you expected was a three-way mixture?

MR. SIMS: I had reason to believe that that could be a three-way mixture, yes.

MR. SCHECK: And that the DNA from--that could be consistent from the PCR markers with Mr. Goldman was not the major or primary contribution to that mixture?

MR. SIMS: That's correct.

MR. SCHECK: And so when you have 72 nanograms of DNA on March 22nd and you are contemplating an RFLP test, your expectation that if you are going to find consistent with Mr. Goldman on the RFLP that it is going to be not 72 nanograms of DNA consistent with Mr. Goldman, but a much smaller portion?

MR. SIMS: That's correct.

MR. SCHECK: And it is for that reason that you conceded yesterday that you would expect that once the process began of putting the probes--developing the probes, that it would take a considerable period of time to develop them because you knew that the amount of DNA that could arguably be consistent with Mr. Goldman would be a small contribution?

MR. SIMS: Yes. In other words, that--that these autorad development times would be prolonged because there was an overall total low amount of DNA, and since it was a mixture, then that would--any of those particular components would be even less, obviously, than the total.

MR. SCHECK: Now, between the period of March 22nd and when you began the three to four-day process of putting the probes onto the gels to develop them, okay, you went through some considerable discussion with Mr. Harmon here yesterday as to what your activities were, correct?

MR. SIMS: Yes.

MR. SCHECK: How much of that time in April was taken up in discussions with Mr. Harmon in preparation for your testimony in this case?

MR. SIMS: There were a few meetings with Mr. Harmon, I believe it was on the Fridays in April, yes.

MR. SCHECK: Well, it took you one day, April 5th, to prepare your report?

MR. SIMS: Yes. I logged--I logged 14 and a half hours on that day of report preparation. That was in addition. There was some other work. There was--the Sunday April 2nd before that there was also some time spent on the report.

MR. SCHECK: Okay. So those two days, April 2nd and April 5th, that is what you took to prepare your report which was a summary of your results?

MR. SIMS: Yes, and I believe there was some other time in there also where I was doing some word processing, putting things together. That is all part of that mix.

MR. SCHECK: All right. And your notes, you've told us before, you kept contemporaneously as you performed your work in this case?

MR. SIMS: Yes.

MR. SCHECK: So in order to turn over to the Defense discovery of the notes, all you had to do was take your contemporaneous notes and Xerox them and turn over a copy, as far as the notes are concerned?

MR. SIMS: Well, as far as the notes we--we made copies, we have a special numbering system we follow. There is preparation of correspondence. There is sometimes taking it to the federal express offices, something that I would do. There is a lot as far as making sure the autorads get copied and numbered and there is--the discovery process is not just a matter of sticking some pages in a Xerox machine and walking away and coming back and having them ready to go.

MR. SCHECK: Well, you turned over to us your notes which you kept contemporaneously and the autorads which were being produced on all the other material that you testified about in this case as you went along?

MR. SIMS: Yes.

MR. SCHECK: In other words, before you are reporting the results, you have to look at the autorads?

MR. SIMS: That's correct.

MR. SCHECK: So in terms of the discovery, all you ever turned over to us were the autorads and your notes, right?

MR. SIMS: Well, there are my notes, there are other analyst's notes and there are also review notes and that sort of thing. This is a whole package. And you received several of those so you know what is in them.

MR. SCHECK: Right. But you have indicated here that you spent all of April 10th and all of April 11th engaged just in discovery preparation?

MR. SIMS: No. What this indicates is that as far as those two days are concerned, I did spend almost all of April 11th. I have eight hours I logged on discovery prep. On April 10th it was only three hours, so I was apparently doing something else on April 10th.

MR. SCHECK: Uh-huh. Now then, you have on Wednesday and Thursday preparation for testimony, correct?

MR. SIMS: Yes. I believe that is the 13th and the 14th.

MR. SCHECK: All right. And so those are at least two days that you spent with Mr. Harmon preparing testimony?

MR. SIMS: No, that--a lot of those times are just my own time spent. That is not with Mr. Harmon at that point.

MR. SCHECK: Okay. What about--incidentally, after you prepared the report on April 5th, on April 6th you and Renee Montgomery actually flew to Los Angeles to give the report to Mr. Harmon?

MR. SIMS: Yes. And to consult, yes.

MR. SCHECK: So on April 6th you consulted with him in preparation for your testimony in this case?

MR. SIMS: Yes.

MR. SCHECK: In Los Angeles?

MR. SIMS: Yes.

MR. SCHECK: On April 7th I take it you did the same thing, even though it is not listed here?

MR. SIMS: I believe that was a Friday?

MR. SCHECK: A Friday.

MR. SIMS: I--I think--I think that is incorrect. I think I came back sometime in the evening on April 6th, and I'm not sure what I did on April 7th. Apparently it didn't relate to anything on this case.

MR. SCHECK: All right. So you didn't do anything on the case on April 7th, but you did other work?

MR. SIMS: Yes. I put in, I believe, a full day at work that day.

MR. SCHECK: All right. So on April--what about Wednesday, April 12th? Was that another day that you were preparing for your testimony?

MR. SIMS: No. I didn't log any hours on this case for April 12th.

MR. SCHECK: So April 12th you didn't do anything on this case?

MR. SIMS: Well, I won't say I didn't do anything. I may have been developing an autorad, for example, but I have no mention of it in any of my time sheets that I could find.

MR. SCHECK: All right. So April 13th and 14th are other days that you preparing testimony?

MR. SIMS: Yes. You mentioned those earlier, yes.

MR. SCHECK: Then you put down here April 17th and 18th you are preparing for testimony?

MR. SIMS: Yes.

MR. SCHECK: Is that--are you spending time with Mr. Harmon?

MR. SIMS: No.

MR. SCHECK: That is all day you are just sitting around preparing for testimony?

MR. SIMS: Well, on the 17th I believe there were two and a half hours and then the next day was a full eight-hour day on preparation.

MR. SCHECK: And incidentally, getting back to this before, the three or four-day process that you describe as being necessary to get those probes going, that is not three or four days of hands-on work by you?

MR. SIMS: Well, all the hands-on work is by me, but it is not full eight-our days.

MR. SCHECK: Right. Not full eight-hour days by any means?

MR. SIMS: One of those days is virtually an eight-hour day.

MR. SCHECK: As you described before, the restriction takes an hour and then you just let it go overnight?

MR. SIMS: The hands-on time that I would mention would be the actual adding of samples and tubes, but there is also the planning stage and that takes a considerable amount of time.

MR. SCHECK: Well, you could put--I think you testified yesterday it would take you, what, an hour, an hour and a half to do the restriction and put it overnight, right?

MR. SIMS: In this particular case I believe there was some additional time in terms of the planning, but as far as the hands-on, that's correct.

MR. SCHECK: Give me the total hours it would take you to plan and do the restriction.

MR. SIMS: In this case I would say it was about a half a day, something like that, maybe four hours.

MR. SCHECK: What is half a day?

MR. SIMS: Four hours.

MR. SCHECK: You are going to get this in four hours?

MR. SIMS: Something like that. That is an approximate.

THE COURT: Excuse me. If you guys want to talk at the same time, we are going to stop the hearing right now.

MR. SCHECK: So if that takes you four hours--my apologies, your Honor--if that takes you four hours, you could do that and then spend the remainder of the day preparing your testimony, right, looking over the materials?

MR. SIMS: Well, as I think I mentioned yesterday, the restriction is something that is typically done at the end of the day, so that is something I would save for the latter part of the day.

MR. SCHECK: Okay. So you could prepare your testimony in the early part of the day by reviewing things and then start the restriction at the end of the day?

MR. SIMS: That is possible, yes.

MR. SCHECK: And then to get back to this, on April 19th you talk about analysis of test results. Is that still more preparation for your testimony?

MR. SIMS: I think there may be some of that in there. There is--there may also be some autorad development. Another thing that was going on at this time was there was some monitoring of some of the testimony of the other witnesses, so I'm not sure exactly what all was going on on that day.

MR. SCHECK: Well, let's get to that. In other words, part of what you were doing here is that you were listening to the testimony of other witnesses before you testified?

MR. SIMS: Portions of those testimonies, yes.

MR. SCHECK: And were you listening on a radio in your lab?

MR. SIMS: At times I was, yes.

MR. SCHECK: And sometime you would watch it on television?

MR. SIMS: At times, yes.

MR. SCHECK: All right. And then on April 20th there was a whole day preparing testimony?

MR. SIMS: Preparation for testimony. That was--I logged I think a half day on that particular day.

MR. SCHECK: A half day. And did you--was that alone or with Mr. Harmon?

MR. SIMS: That would be alone.

MR. SCHECK: All right. And April 21st you took off?

MR. SIMS: Yes. I took that Friday off.

MR. SCHECK: And what about that Monday, April 24? No work on this case?

MR. SIMS: I didn't log any time, no.

MR. SCHECK: All right. And then on April 25th you were reviewing other materials and preparing for testimony?

MR. SIMS: Yes. And at that point I went back to the plans for doing the RFLP and I made some notes that are reflected in my laboratory notes for that date.

MR. SCHECK: Now, on April 26th you talk about what Renee Montgomery was doing, correct?

MR. SIMS: Yes, and also that--that is the day that I actually laid out and I had hoped to do the restriction, and I think we alluded to this yesterday, that that was the point at the end of April when I got very close to doing this, but I was not able to complete the restriction that night.

MR. SCHECK: How long did you spend doing the restriction?

MR. SIMS: I logged a total of about four hours on the case that--that day, April 26th, which was a Wednesday.

MR. SCHECK: Not my question. How long did you spend doing the restriction?

MR. SIMS: Well, the--

MR. SCHECK: Planning the restriction?

MR. SIMS: The planning--I--I don't know the exact amount of time that was spent that particular day. It was probably on the order of a few hours, something like that.

MR. SCHECK: A few? Can you--planning the restriction?

MR. SIMS: (No audible response.)

MR. SCHECK: I'm asking you how long you spent planning the restriction?

MR. SIMS: I don't know exactly. I mean, I--I'm looking at my notes for that day. This is my notes on page 242.

MR. SCHECK: Well, Mr. Sims, you mentioned that in terms of preparing the reference sample you wanted to make sure that the reference sample would be in similar quantities to the amount that you had from the combined sample, correct?

MR. SIMS: That's correct.

MR. SCHECK: So the autorads would look balanced in the lanes, right?

MR. SIMS: That's correct.

MR. SCHECK: Well, so basically that doesn't take very long to do, does it?

MR. SIMS: Well, no. The difficulty here, and I think we got into this a little bit yesterday, but the difficulty was that I was running out of some of these reference sample extracts, and in particular I had a note that I was trying to get more of the Defendant's extract and I had a note that I would check with Renee Montgomery to see if she had any sample available left over from some of her extraction. And this was one of these nights where it got to be--I think I logged out at 11:30 that night.

MR. SCHECK: Are you talking now about--what date are you talking about?

MR. SIMS: April 26th.

MR. SCHECK: All right. So April 26th is the time that you are first looking to see if you have sufficient amount of reference sample from the Defendant to proceed with the RFLP? Is that what you are telling us?

MR. SIMS: That is--that's correct. That is when I actually start handling the tubes again.

MR. SCHECK: All right. So that is already April 26th?

MR. SIMS: That is April 26th.

MR. SCHECK: So that is over a month after you have realized that you have 72 nanograms to do this RFLP, right?

MR. SIMS: That's correct.

MR. SCHECK: And incidentally, so the Judge understands exactly what we are talking about here, basically what you are trying to do is you know if you have something like 72 nanograms of DNA for one sample, instead of using five microliters of the reference sample, you will knock that down to something like one microliter?

MR. SIMS: Yes.

MR. SCHECK: That is a simple calculation you make on your hand-held calculator, right?

MR. SIMS: Well, given the number of calculations I make in any case, I don't consider any of them simple, and I spend a lot of time with my calculations to try to make sure I get them right.

MR. SCHECK: I understand, but it is just a simple question of reducing the amount of DNA from the reference sample so it roughly corresponds to what you think you have in the combined sample?

MR. SIMS: Well, I mean, you make it sound so simple, and when you look at it from your perspective, perhaps it is simple, but to me it is a matter of making sure that I have--how good are my quantitations, how good did they look on the previous set of autorads and that sort of thing, and making the proper estimates, and I take a lot of care in trying to come up with the best amount of DNA to use, for example, so it is not just a simple punch it into a calculator and get the result.

MR. SCHECK: I understand, but you knew you had 72 nanograms on March 22nd. Tell this Judge in all candor how many hours it took you to figure out how much reference sample you would need to run, given the fact that you had 72 nanograms, the total number of hours it took you to make this calculation?

MR. SIMS: Now this would be for April 26th?

MR. SCHECK: No. I'm asking how long would that operation take? Once you knew on March 22nd you had 72 nanograms, how long does it take? If you decided to do it soon--soon after March 22nd, how long would it take you to figure out how much DNA you needed from the reference sample to run on the RFLP?

MR. SIMS: Well, again, I can only speak in the context of the samples in this particular case and it is not just a matter of saying I have this sample, I mean, I have this sample, how much of the sample do I have left, how did this sample look when I put it on the previous autorad.

THE COURT: All right. Mr. Sims, taking everything into consideration, all the complexities and unusual circumstances of this particular case, how long did it take you to make the calculation regarding what size of a sample from the reference sample was necessary to do your testing in this case?

MR. SIMS: I think on this particular date I spent a few hours doing that, maybe two hours, something like that.

MR. SCHECK: All right.

MR. SIMS: Maybe three, I don't know.

MR. SCHECK: So in other words, if you sit down to do it, it is going to take you two to three hours max?

MR. SIMS: Something along that line, yes.

MR. SCHECK: And--so the record is clear, you didn't really even sit down to even do the planning until April 26th?

MR. SIMS: No, that is not clear at all, because I think if you look at my notes, the planning again--I have--on April 25th, this is at page 242, "Plan for additional RFLP on April 25th."

MR. SCHECK: Okay. So you started on April 25th this two or three-hour process, and it ended sometime on April 26th in terms of planning the restriction?

MR. SIMS: Well, again, I think you are simply identifying the situation and I can't give the precise number of hours that all these processes would take, but there is time on April 25th and there is time on April 26th.

MR. SCHECK: Right. Now, you then told us--indicated that on April 27th you are doing more preparation for your testimony in attending a CAC study group meeting?

MR. SIMS: Yes. That was on April 27th.

MR. SCHECK: All right. April 28th you are reviewing other data, but you are meeting with Mr. Harmon in preparation for your testimony?

MR. SIMS: Yes, and I also met with Dr. Blake that day, too.

MR. SCHECK: Uh-huh. On May 1st you talk about what--in your notation what Renee Montgomery did, right?

MR. SIMS: Yes, and I was working a little bit with her on that particular day.

MR. SCHECK: How many hours did you spend working on this case on May 1st?

MR. SIMS: I logged about four hours.

MR. SCHECK: And what were you doing?

MR. SIMS: (No audible response.)

MR. SCHECK: Watching Renee Montgomery?

MR. SIMS: No. I think I was consulting with her on some stuff and there is a lot going on at this point now. This is shortly before I come down to Los Angeles, so there is a lot of last minute sort of things that are happening on that particular date.

MR. SCHECK: All right.

MR. SIMS: I can only say that I logged four hours on that day.

MR. SCHECK: Uh-huh. And May 2nd, these are four hours on a photo log?

MR. SIMS: Yes. I--I put, because there was a request for some of the photographs, I spent some time numbering and organizing the photographs that we took into some kind of numerical system.

MR. SCHECK: These are the photographs that you took after Dr. Blake took photos?

MR. SIMS: Yes. Most of them are after or made about the same time as Dr. Blake's photos. I also spent some time preparing to testify on that date.

MR. SCHECK: Okay. So that is another one of those preparation for testimony days?

MR. SIMS: That is part of it, yes.

MR. SCHECK: And these are the photos that--

THE COURT: Counsel, is there--isn't the issue how long the testing takes?

MR. SCHECK: Yeah. I'm just trying to--

THE COURT: Is there any dispute as to Mr. Sims' calendar here?

MR. SCHECK: I just want to point out a few more things, your Honor, in this regard.

MR. SCHECK: You indicate here on May 3rd, May 4th, you are preparing for testimony, right?

MR. SIMS: Yes.

MR. SCHECK: Saturday, May 6th, you are preparing for your testimony?

MR. SIMS: Yes. I--I also may have come in and developed an autorad that day. I'm not sure.

MR. SCHECK: Now, you flew down on May 7th to watch Dr. Cotton testify, correct?

MR. SIMS: Well, I--I flew down on May 7th, which was Sunday, to--yes, I was standing--and also standing by because I didn't know how long her testimony would. Take and I was requested by the Prosecution to be here for May--what would that be, May 8th, Monday?

MR. SCHECK: Wait a second. You didn't think that Dr. Cotton's testimony would take a few days at the very least?

THE COURT: Counsel, counsel, his presence here for the purposes of being with the Prosecution counsel for the testimony of other expert witnesses, this doesn't tell me anything about the issue that I need to resolve here.

MR. SCHECK: I just want to make one point, your Honor, in this regard.

MR. SCHECK: You sat in this courthouse watching Dr. Cotton's testimony on television, correct, monitoring it?

MR. SIMS: I think I was at the hotel at that time.

MR. SCHECK: Okay. Now, you had monitored other witness' testimony in your lab at the same time you are doing some work?

MR. SIMS: Yes. For example, there would be days when I would be preparing to testify and then I would have my radio on, for example, something like that.

MR. SCHECK: So--

MR. SIMS: I don't--may I finish?

MR. SCHECK: Yes, I'm sorry.

MR. SIMS: I don't listen to the radio while I'm doing any laboratory analysis.

MR. SCHECK: All right. But it is certainly possible for you at, let's say, the end of the day, for example, to have done the restriction and have monitored testimony during the day and been in telephonic contact with the Prosecutors?

MR. SIMS: Is that possible? Yes.

MR. SCHECK: Yeah. Okay. Now, there are other people--there is an individual in your laboratory named Steve Myers?

MR. SIMS: Yes.

MR. SCHECK: Did he participate in creating some RFLP's in this case?

MR. SIMS: He was involved in some of the batch probing, but he didn't do anything as far as preparing the samples for RFLP analysis.

MR. SCHECK: Is he qualified to do the restriction and prepare the southern blot and get those probes moving?

MR. SIMS: Yes.

MR. SCHECK: And he was available to do some work on this case?

MR. SIMS: Well, he was available to do some work on this case, but he also has a number of other cases that he is working on. This was not the only case in our laboratory for the--for this period of time, I can assure you.

MR. SCHECK: But he is somebody that is qualified to do that?

MR. SIMS: Yes.

MR. SCHECK: And did on occasion pitch in and do--assist you in RFLP work in this case?

MR. SIMS: Well, his main assistance was in some of the PCR testing, I think we mentioned that earlier, and he also extracted the hair sample, you will recall.

MR. SCHECK: But he participated in the RFLP--he does most of the RFLP work in your lab?

MR. SIMS: No, no, that is not at all correct.

MR. SCHECK: He does a lot of RFLP work at DOJ?

MR. SIMS: He does a lot more PCR work than he does RFLP work. He did some of the batch probing because he is a very good prober.

MR. SCHECK: Okay. All right. Your Honor, on this issue I think I am through with my cross-examination of Mr. Sims.

THE COURT: All right. Mr. Harmon.

MR. HARMON: Just a couple questions, your Honor.

REDIRECT EXAMINATION BY MR. HARMON

MR. HARMON: When Dennis Fung began his testimony on April 3rd, did you know how long his testimony would take?

MR. SIMS: No.

MR. HARMON: Was that one of the considerations in not knowing exactly when you would be able to do the RFLP process?

MR. SIMS: Yes, because there were certain things that he had to accomplish, I felt, before I would come down and testify.

MR. HARMON: Did you expect the kind of long-winded cross-examination that occurred of Dennis Fung?

MR. SIMS: No.

THE COURT: Well, that is not really necessary.

MR. HARMON: Did you expect the kind of cross-examination that occurred with Andrea Mazzola?

MR. SIMS: Well, I think after I saw Mr. Fung's cross-examination I expected some long cross-examination after that, yes.

MR. HARMON: Anyone discourage you from doing the RFLP results so Mr. Scheck could see them presented in the case in chief?

MR. SIMS: No.

MR. HARMON: Thanks.

THE COURT: Any recross as to that?

MR. SCHECK: No.

THE COURT: All right. Mr. Sims, thank you very much, sir.

MR. SIMS: Thank you.

THE COURT: Mr. Harmon, anything else?

MR. HARMON: Not on that point, your Honor.

THE COURT: Mr. Scheck, do you have anything else you wish to offer?

MR. SCHECK: Yes, your Honor. There is a few issues on the table. I have to respond, I take it--I really think it is our motion.

THE COURT: That is why I'm asking do you have any evidence you wish to offer? Any witnesses you wish to call?

MR. SCHECK: No.

THE COURT: All right. I will hear argument.

MR. SCHECK: Your Honor--well, first--the first issue that I would like to address, your Honor, are the points that were raised by Mr. Kelberg. I will take them in order. And before even reaching--it is my understanding that the law with respect to rebuttal involves three factors as we outlined them in our brief: Was it available? Could it have been available in the People's case in chief? Is the evidence important or crucial evidence that it is unfair to sandbag this Defendant with at the end of the case? And would bringing this evidence forward at the last minute unduly highlight the evidence? Those are all the issues that are involved in the court's exercise of discretion as to whether or not it is proper rebuttal testimony. But Mr. Kelberg tries to make a point which plays fast and loose to the facts as to whether or not these RFLP results are direct rebuttal to Dr. Gerdes, and it is not, for a number of reasons. No. 1, the--dr. Gerdes testified about item 31 and the board involved in item 31 is a PCR result of a sample collected on June 14th. That is item 31.

Where he disputes the--what we call the failure of controls on that particular set of results, and it has to do with the sample collected on June 14th--I would note for the court's edification that item no. 30, which was also collected on June 14th had DQ-Alpha types that only were consistent with Mr. Simpson and no evidence of any other contributor, so that was not a mixture. This is 30 and 31. Those are June 14th. Also presented on the Prosecution's case were PCR results as to 303, 304 and 305, the samples that were collected on August 26th. Dr. Gerdes did not comment on the PCR results on 303, 304 and 305, taking the position that as a scientist he would not even consider those samples because the Bronco, after June 14th, had been--was outside of the chain of custody that he as a scientist normally requires for examining the integrity of evidence, so he did not comment on 304--303, 304 and 305, those PCR results. These RFLP results are on 303, 304 and 305. They are not on 30 and 31. So it doesn't directly rebut that, nor can they come in and say, well, those are really the same samples, because they were at great pains to have Matheson testify that even though 30 and 31 were supposed to be in the general area of--I'm sorry--even though 303 and 304 were supposed to be in the general areas of 30 and 31, they were separate and distinct swatches of separate and distinct bloodstains and they have to take that position--collected on completely different days under completely different circumstances--that those are separate and distinct pieces of evidence. So the fact of the matter is that these RFLP results are not being offered to rebut Dr. Gerdes' questioning of the scientific controls on item 31 because that is a separate and distinct sample. What they are being offered for here is to add additional evidence to the PCR results from the 303, 304 and 305 which were samples that were collected on August 26th. So those are the facts. Secondly, I would point out, in terms of the rebuttal argument, that when this issue was first raised about their failure to pursue these tests in a timely fashion. And in fact in the--the whole issue of the Bronco samples, I pointed out to the court exactly what was going on. I stated to the court that the whole discussion starting, for example, at 27331 of the record on--in the argument on I think it is May 12th, and I had previously indicated to the court on March 29th at page 20966 in the record, and that is where we were having the general discussion of when we reraised our challenge to DNA evidence under prong 3, I was discussing then under prong 3 that there was a failure of control on some of the evidence samples collected from the Bronco and that this was a problem in the People's case, and that what I was fearing here is that they were not going to proceed expeditiously with the RFLP results from the combination because they were going to sandbag us with this and they could have it done on their direct case, but they were choosing not to because they wanted the best of both. Even if they got ambiguous results, they wouldn't offer it, and if they got results that they thought supported their claim about 303, 304 and 305, they would suddenly bring this in at the end of the case in a fashion that unduly highlighted it, and I called it sandbagging and described exactly the problem from the very beginning. I reiterated that again on May 12th. It was absolutely clear what they were doing. Now, I think on this record, as far as the issue of timeliness is concerned, there can be very little debate. On March--when this court permitted them to combine the samples, it was the understanding of this court, and you said it yourself, umm, when we had our discussion on May 12th about this, that it was our understanding--your understanding at page 27331 of the record, that when they got permission to combine these samples they were going to proceed expeditiously with the testing and it was going to begin immediately, if not sooner. Now, during those colloquies Mr. Harmon took the position, and it has been the People's position all along, that there are no legal restrictions, even the restriction that they should put on their case--evidence they have available to them in their case in chief, and they can't just suddenly save testing for their rebuttal case. They take the position that they are completely unfettered, that we cannot in any way, the court cannot direct them, there are no rules restricting them on when they do the testing, that they are completely free to do it whenever they want. That was their position. That is the position they have taken from the beginning. Now, the fact of the matter is that this court told them and made it clear that once they got permission to combine these samples, and in light of the arguments we were making about fears of sandbagging and everything else, that this testing should begin immediately, if in the sooner. When the issue was then raised again, this court indicated to the Prosecution on May 12th at page 27340 of the record, that we may have here a preclusion by the passage of time. Now, I don't know how much clearer the court could have been that they had to make a real effort to get this process started, and Mr. Sims' testimony is absolutely clear and these Prosecutors knew, everybody knew that they were dealing with a very small amount of DNA. That was determined as early as March 22nd, that the big period of time that it would take for this RFLP testing to get completed, because it was a small amount of DNA, were the times that it takes once those probes are beginning to--the autorads are developing when the probes start, that is going to take like maybe two weeks per probe. That is where the time is going to take in completing the tests. So the issue is could they have--could Mr. Harmon have said to Mr. Sims, look, the Judge has made it crystal clear to us, immediately, if not sooner, this RFLP testing ought to be done. We could get precluded by time. This is something that should be done. Get Steve Myers to do it, get Renee Montgomery to do it. The process of beginning that probing is one that he concedes takes three or four days overall, and in terms of actual hands-on time is much less, he could have been doing other things while the restriction was done, while the southern blot was prepared and these things were going overnight, while the analytical gel was prepared. That is a three or four-day process. He prefer that it be done on consecutive days, but he didn't even do it on consecutive days, as the record is clear. They waited from March 22nd, by his own admission now, to June--to April 25th, that is what he said this morning, even to plan the restriction, which is a process that he just conceded takes two or three hours. Now, the point here, Judge, is that these Prosecutors, even being confronted with the fact that they were obviously trying to flout the rules and sandbag us with these results, and even in the face of the fact that the court told them immediately, if not sooner, you could be precluded by time, did not say to Gary Sims, look, they spent--this record is clear he spent close to 25 days and a hundred hours between March 22nd and coming into court to testify, in preparation for testimony, reviewing his notes. He spends a week sitting up--sitting in his hotel room watching Robin Cotton testify when on other occasions he had been listening to the witness or it could have been done on videotape. It doesn't take that long to get these probes started where the major bulk of the time is going to take.

And as Mr. Sims conceded, once those probes are, you know, beginning to cook for those two-week periods, he doesn't even deal with it, technicians deal with it and there is another person in the lab who pitched in on the RFLP and other work in this case, Steve Myers, who could have taken out some short period of time to get this done, if they wanted to get this done, but they didn't want to get this done. In spite of the court's clear admonition to them that they could get precluded, they were flouting, flouting clear direction of the court and trying to gain a tactical advantage. The record is crystal clear on this, crystal clear that this would have been available to them if they proceeded in anything close to an expeditious manner. There is a huge gap here between March 22nd and when these probes went on June 15th. It is inexcusable. It is purposeful. There can be no question about it, it is in bad faith. And we don't even need bad faith. It is just a question of whether or not it was available to them and it is--it is arrogant, it is arrogant. How clear could you have been to them when you said immediately, if not sooner? It was all our clear understanding they were going to proceed with this important evidence expeditiously. They were trying to gain a tactical advantage. That is all there is to it. And Mr. Sims, I concede, is a fine man, he has a lot of work to do, demands are made for him in preparation of his testimony, but it is on them. They could have said the court has been clear as to what the timing is. Get this done, get somebody else to do it, because it was a very simple process to get those RFLP's going, those three or four-day period that it takes to do the restriction, the analytical gel and get the probes going. They knew precisely what was going on. Mr. Harmon is experienced in this--in how DNA testing works. Mr. Sims made that data available to him. They would rather sit around and talk about how the testimony should go or watch television with other--with other witnesses when they could have done it. The record is crystal clear on this, and they basically were figuring, well, Judge Ito didn't rule against us in terms of when we should start the tests at the beginning of the trial. It was a close call we had on that ruling, but he didn't rule against us, and we take the legal position that there are no obligations on us to begin testing at any particular time or to make anything available in our case in chief.

And even after Judge Ito told us immediately, if not sooner, it was clear to us that there was a time problem here. We can ignore it because he is not going to do anything about it. Despite the clear rules and the clear admonitions and the clear point that they were taking an unfair tactical advantage, that is what they think they can get away with, and that is exactly what the record shows and it is exactly the game that they are playing and it is unlawful. It is not directly rebutting testimony. As I have indicated, Mr. Kelberg's arguments are playing fast and loose with the facts. This is not rebutting 31, a sample collected on June 14th in a particular PCR result. This is supplementing the previous PCR results from 303, 304, 305, samples that were taken on a different date, samples that the Prosecution witnesses were at pains to say were taken from a different bloodstain on that console.

THE COURT: We are repeating ourselves at this point.

MR. SCHECK: Okay. With respect to the law of rebuttal, the prejudice here is clear. This is important evidence in the case and by proceeding in this fashion they are trying to unduly highlight this evidence and it makes it extremely difficult for our witnesses, who would have been on direct examination, to confront this evidence when they first testified. That is the advantage that they are seeking and that is the advantage which the law says is improper in terms of proper rebuttal. And this is not even rebuttal; this is really reopening their case. It is absolutely and utterly unjustified. Now, with respect to what this is going to entail, Mr. Kelberg made another argument that is fast and loose with the scientific facts with respect to the numbers and the testimony that would be required from Dr. Weir on mixtures and the peculiar problems presented by mixtures here. And on this point, with the court's permission, I would like to defer to Mr. Neufeld since this is his area to address Mr. Kelberg's point with respect to the statistics.

THE COURT: A very discreet issue. You have chosen to argue both issues, counsel, conclude.

MR. SCHECK: I'm saying I don't want to argue both issues.

THE COURT: Let's finish this. We have spent also two hours now on this.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: The arguments with respect--Mr. Kelberg argued that the RFLP results on 303, 304 and 305 merely serve to corroborate the PCR results on 31, which is a completely different sample at a different time. And it can't be corroborative for a number of reasons: No. 1, what we are talking about here is a mixture, and this court has already ruled that you have to have a number for the mixture, and obviously the--creating a number for a mixture is a complicated process, as we have seen. The problem--and the key problem here is that the jury has numbers about a single source RFLP pattern from Mr. Goldman and Mr. Simpson which are very, very small numbers, very low frequencies. And they may assume--they would be entitled to assume that if they just heard, well, there is an RFLP that shows a mixture of a pattern consistent with Mr. Simpson and Mr. Goldman on the 303, 304, 305 combined stain, the argument is the jury would naturally think that those very, very low numbers in the millions or billions, whatever the patterns are, are the numbers that they should apply to the mixture on 31, which is entirely different stain anyhow. And we know, even from the calculations of Dr. Weir, which we contest are unduly making that probability a low one, that a mixture is different, and it is far less of a persuasive number. And you have already ruled that it is the law of the case that they have to present those numbers and that is what Barney rules, they have to present those numbers separately. And it would be plainly prejudicial here, on an entirely different sample, to let them not present a number on a mixture. Not only that, Dr. Weir's report that you have gotten here, because of some peculiarities in these RFLP results, engages in a completely different method for calculating a mixture, different than even the one that he presented here the last time. And so it seems that it would be contrary to what this court has already ruled with respect to the need to present numbers for mixtures to let them put on an RFLP result for a mixture and let the jury speculate about what that could possibly mean. It just violates all the court's previous orders in this case. Finally, I think it is clear from the testimony of Mr. Sims, he is not qualified to present these numbers with respect to mixtures anyhow. He is not--doesn't have sufficient expertise in statistics, particularly on a method for calculating a mixture which has never been published which Dr. Weir was--essentially was presenting for the first time in this court himself, when dr.--when Mr. Sims' only background in this essentially is taking a few-day courses a while ago from Dr. Weir, which couldn't have even addressed the method that Dr. Weir testified to and presented in this case. So for all these reasons what we are facing here is that if you permit this--what we think is in the rebuttal testimony, reopen the case, despite all the warnings this court gave them, that they were at peril if they didn't get this done, to be precluded, if you permit it, Gary Sims would have to testify about the RFLP, Dr. Weir would have to testify about the mixture numbers, and we are going to have to call Dr. Shields as a rebuttal witness on all of this, so that is what we are facing. It is unduly extending this case and it wasn't necessary in the first place and it was only done to gain an unfair tactical advantage.

THE COURT: All right.

MR. KELBERG: May I respond briefly, your Honor?

THE COURT: I'm interested in just two things.

MR. KELBERG: All right.

THE COURT: I'm interested in the physical proximity of 31 and 303, 304 and 305 and I'm interested in an explanation for the delay between March 22nd and April 25th. I'm only interested in those two things.

MR. KELBERG: All right. Mr. Clarke has been kind enough to do a--I'm sorry, Mr. Goldberg has been kind enough to do a drawing. Unfortunately I will used to it write a note or two to myself, but let me hold up for the court's observation. The note is, "Matheson took swatches from the area immediately contiguous to the 30 and 31 stains" and it looks like concentric circles one might see on the stump of a tree after it has been cut. And the court can see the proximity--I think the court can see from the distance--if you would like, I can bring it up for you.

THE COURT: No, I can see. Thank you.

MR. KELBERG: --the proximity, and obviously that goes to the relevancy of using 303, 304 and 305 to corroborate the accuracy of the 31. It is not an issue of when the stains are taken. Obviously the People's position those stains were deposited at the same time, June 12, 1994, in the late evening hours. And so the real question--and by the way, Mr. Goldberg hands me a property report that bears the contiguous numbering scheme with 000685 dr 94-08-17431 under the last item listed, "Six cloth swatches, five used to collect additional stain from the same location of item 30, right side of" looks to me to be "Center console, one swatch used to collect a control area adjacent to the stain" I think is what Mr. Goldberg would like me to apprise the court of, if the court was not aware of that. The point is, is that the contiguous--the contiguous relationship between the stains, 30 and 31 and 303, 304 and 305 is really the issue, on the theory that they were deposited clearly at the same time. I don't think anybody can really argue with good faith that an RFLP result cannot corroborate a PCR result, and so if the court finds that in fact the area is the same general area for these stains--and Mr. Goldberg then points to the next item from the same report next page saying, looks to be "Six cloth swatches, five used to collect additional stain from the same location as item 31, right rear top of the center console and one swatch used to collect control area adjacent to the stain." So that should take care of identifying where 303, 304, 305 come in relationship to 30 and 31. So that makes it clearly relevant. And I hope that answers the court's question, because clearly circumstantial evidence, which corroborates the evidence received in the People's case in chief from the PCR results on 31 is rebuttal evidence. And I must point out to the court, Dr. Gerdes took the stand in August. According to the notes from Mr. Sims, Dr. Blake saw the last--the D4 autorad on July--July 20. That is before I believe--that is the third probe--second probe, so he at least knows we've got a two-probe result at that point. And certainly his interest must be piqued. I'm assuming Dr. Blake is in contact with Dr. Gerdes in preparation for the Defense case, so Dr. Gerdes has to at least be aware of this. Dr. Gerdes attacks all PCR. Unlike what Mr. Scheck says, in fact Dr. Gerdes does inferentially attack the results on 303, 304 and 305 because he says PCR, forensic out, for inclusion/exclusion, and that is going to take care of all of our PCR results if you believe Dr. Gerdes' opinion. So with respect to the first question the court has, that is the direct response. With respect to the delay, your Honor, I know the world thinks this is the only case in California, the only murder case, the only rape case, the only case where DNA evidence is involved. I think the world has seen one thing. Gary Sims is a meticulous craftsman of his trade and I must say it is a bit disingenuous to have the Defense attack Dennis Fung as a bumbling fool and then criticize Gary Sims for being a craftsman in his trade. And I must say, your Honor, if every Judge said to the Prosecution, I want this case put to the priority no. 1 and everything done ASAP on this case, how can any laboratory figure out which priority really comes first? The law requires we use judgment and reason and common sense and I think from the record that has been laid out here today, and yesterday evening, and an interesting record it is to learn how Mr. Sims spent his spring and early summer, it is clear that the Prosecution had a scientist of the first order who wanted to be certain that he was doing things carefully so that the same kind of attacks made on others would not be an attack made on him. And I must say, Mr. Scheck's suggestion that other people could come in and do this, I doubt there are too many folks in the scientific community or in our office who would want to rush in and volunteer to get involved in this case. And as one who was asked to come in kind of at the last moment, hindsight being 20-20 when the call came, I maybe should have reconsidered. I have a feeling that that gentleman up at the DOJ lab that has been mentioned as a possible person to have taken over for Mr. Sims probably is saying man, thank God, thank God I wasn't the one asked to do this. Scientifically it makes sense of course to have one person try and control the sequence of tests, so that you can have the chain of custody and you can have the continuity of presentation, and that is what Mr. Sims provides. I must speak in response to Mr. Scheck's comment about the Prosecution, we want the best of both worlds. Boy, if we got an ambiguous RFLP result, hey, we would bury it. We don't bury it, we Brady it, we bring it to the court's attention, we bring it to the Defense's attention. And they are going to say that that result corroborates Dr. Gerdes' opinion that the 1.3 allele on 31 is an artifact. We want scientifically reliable valid results to offer. Mr. Sims is that kind of scientist. He took his time, he had other responsibilities. I don't believe this court in hindsight can say that he was negligent in how he went about this, negligent in how he went about his business. He was examined at length as a witness here. For the court to say he should not have properly prepared or should not have listened to other witnesses who testify, all the experts in this case are listening to the experts on the other side or on their own side who testify in related areas, because it could be a matter for which they will have to give testimony or be subject to cross-examination, that is unreasonable.

THE COURT: Let's go to my to my original question then.

MR. KELBERG: Okay.

THE COURT: Your explanation for the delay between March 22nd and April 25th.

MR. KELBERG: I'm sorry, March 22nd and April--

THE COURT: April 25th.

MR. KELBERG: I think Mr. Sims has laid it out. He wanted to make sure in the way he does business that, no. 1, he had the human DNA, and he did some additional work to make sure he had that, and to be sure that he could conduct the tests in the manner that he feels is scientifically necessary. And without knowing for certain when he is going to have that continuous period of time necessary to do these tests in sequence, if he gets tied in to begin with and something come up to take him away, he is not going to be able to do one thing or the other. He exercised his judgment, your Honor. If the court feels he made a mistake in exercising his judgment, do we keep this jury from learning the truth? Do we keep this jury from learning something that corroborates Mr. Sims' original testimony and shows that Dr. Gerdes is simply wrong? For an expert--this is not bad faith. This is just going through the process of doing his work in a careful, meticulous manner and having time go by. You know, we--maybe what we should have done when the court said is it time for you to rest, we should have said, no, we can't rest. We got to wait for these probes to be done. Now, the Defense says they can't rest. This is unusual circumstances, at least in my experience, your Honor, when one side doesn't rest waiting for something to come him in. I mean maybe that is what we should have done, hindsight being 20-20. That is not what we did. The point, though, is, there is no reason for us not to want to put on this evidence if it is available, but we want to put it on when we are certain that it is reliable and valid. And I ask this court to recognize that in this case time estimates by all sides have proved to be very, very short-sighted estimates. And to hold Mr. Sims and the Prosecution at this time, because of what the court may perceive as an unnecessary one-month delay between the period in March and the period in April, I think is to penalize us at a time when we cannot penalize really anyone else for estimates that have proved to be less than accurate. I don't think the court can see Mr. Sims as someone who intentionally avoided doing what should be done to get results and that is I believe what the court would have to find, bad faith by the Prosecution, trying to gain an advantage, and I think this court understands from Mr. Sims that he is not the kind of man who is going to let any Prosecutor tell him how he should do his business in order to gain a tactical advantage. He is the scientist. He is the one who believes this is the mechanism he must follow to get a reliable and valid result. This is true rebuttal evidence, your Honor. If the court has any other questions, I will be glad to answer them, otherwise I will submit the matter.

THE COURT: Thank you.

MR. SCHECK: Could I have a brief response?

THE COURT: Five minutes.

MR. SCHECK: Mr. Kelberg's argument is completely circular. He says since it is obvious that 30 and 31 were deposited on the same day, June 12th, as 303, 304 and 305, then if we put on evidence about 303, 304 and 305, it rebuts Dr. Gerdes' criticism of 31. Well, that is not the record in this case and it is plain from the testimony of other witnesses that we are contending or the jury is free to believe that all those bloodstains were not necessarily there on June 12th. That is the point. Secondly, they can read from police reports all they want, but I commend the court's attention to 25187 of the court transcript where Greg Matheson begins to discuss his collection of 303, 304 and 305. And as I indicated, he is at great pains to point out that he was swatching in the vicinity of 30 and 31, but he was distinctly taking a different bloodstain, that he has actually seen, he claims, a lighter area which might have represented previous swatchings and he was taking a new sample. So again, it is a circular argument and it is not directly rebutting. This is evidence about 303, 304 and 305 which Dr. Gerdes' did not address. He was addressing 31. And as I point out again on 30, there is no evidence of even a mixture. His argument about no one else should be asked to do anything in this case, the record is clear Steve Myers assisted in other RFLP's in this case and this was really nothing more than a ministerial matter to begin the restrictions and the analytical gel and could it have been done.

I would point out to the court that the record is that on March 22nd they knew how much DNA and they knew how long it would take. He only began planning on April 25th the restriction, which is a process he takes--would take two or three hours, and he didn't actually begin it until June 7th. So I would submit that the real delay here is between March 22nd and June 7th. Finally, the Prosecution is very conveniently putting it on Gary Sims. I think the record is clear, it is not Gary Sims. The activities of Mr. Sims between March 22nd and the time he--and April 25th or June 7th were primarily taken up with preparation sessions for testimony in this case. When Mr. Kelberg says who sets priorities with reason and judgment and common sense; it is them. They could have said to Gary Sims, Mr. Sims, it only takes a few hours and a three-day--at most a four-day process to begin getting those probes cooking, which is going to take the longest period of time developing them. The Judge said immediately, if not sooner. The Judge said we could get precluded because of time. The record is clear during this period between March 22nd and April 25th or June 7th, as we would contend, they could have told him to do that. They could have suggested there was--he gave no scientific reasons why that couldn't be done. It is not a question of Gary Sims' scientific judgment in trying to be careful.

That is all a lot of nonsense. Steve Myers could have done it, but that is not even the point. They had the obligation, they had the obligation to say the Judge has made it clear that we are in danger if we don't make a good faith effort to get this evidence there or even--or an effort. The standard is not even good faith as far as the rebuttal issue is concerned. We have a problem. The Defense has made it clear what the problem is. The Judge has told us in no uncertain terms immediately, if not sooner we could get precluded because of time. Just do--start that three our four-day process to get the results going. That is what the Prosecution could have requested of the scientists and he didn't get up on the witness stand and say there was a scientific reason he couldn't have done it. It is on them; not Gary Sims.

THE COURT: All right. Thank you, counsel. All right. I want to review two items from Dr. Gerdes' testimony and I want to review, before I rule, the exhibits that discussed items 31 and 303, 304 and 305. So I will have to have Mrs. Robertson pull those. Mr. Kelberg, would you give Mrs. Robertson a list of the exhibits.

MR. KELBERG: I would be glad to, your Honor.

THE COURT: Photo exhibits. All right. As to the 1054.7 hearing that the court conducted with regard--and Brady hearing that the court conducted with regard to Dr. DeForest, where is Mr. Neufeld? Chosen to absent himself. Mr. Scheck, would you tell him that the result of the hearing this morning was that the pages that the court had concerns that were potentially Brady material were in fact turned over in a previous discovery matter, so the issue is moot.

MR. SCHECK: Well, Mr. Hodgman spoke to me before he left and said that the issue had to do with the wet transfer stain of Nicole Brown Simpson's blood on the other sock that went through the other side.

THE COURT: Right.

MR. SCHECK: I want to point out that that is a finding not just of Peter DeForest, but Mr. Sims, so I understand--if--I take it this is the July 17th materials are there pictures associated with that?

THE COURT: No.

MR. SCHECK: Okay.

THE COURT: But there were notations. That is what caused me concern--

MR. SCHECK: Yes.

THE COURT: --whether or not it is Brady material, but it turns out, unbeknownst to me, that had been previously turned over to you.

MR. SCHECK: Right.

THE COURT: So I wasted all of my time reading those materials.

MR. SCHECK: Well, if it had been put together in a fashion of form--

THE COURT: So there was another two hours of my time.

MR. KELBERG: Your Honor, may I be excused so we can go upstairs, get the exhibit numbers and give them to your clerk?

THE COURT: Yes. Thank you.

MR. SCHECK: I can assist them on that.

THE COURT: All right. Let me see. Miss Clark, do you have your next witness available?

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

MS. CLARK: Yes.

THE COURT: All right. Where do you intend on going after Mr. Rubin?

MS. CLARK: After Mr. Rubin, Gary Sims.

THE COURT: How long do you anticipate we will be with Mr. Rubin?

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

MR. DARDEN: On direct, 25 minutes, 25.5 minutes.

THE COURT: All right. Mr. Blasier, any guess?

MR. BLASIER: No, but I do have an in limine motion to make with respect to Mr. Rubin briefly.

THE COURT: All right. We will hear it.

MR. BLASIER: I would ask that he be limited in terms of looking at pictures or testifying about pictures, that he be limited to what has been presented and identified in court and not testify about pictures that aren't in court.

THE COURT: Miss Clark. I'm sorry, Mr. Darden, any comment on that?

MR. DARDEN: Well, we intend to show him anything we can lay the appropriate foundation for, Judge.

THE COURT: Are there any other materials that have not been presented in court that Defense counsel has not had access to that you intend on using?

MR. DARDEN: I don't believe so.

THE COURT: All right. I see we have counsel from NBC with regards to the SDT's present in court.

MR. BLASIER: I would ask that Mr. Rubin be instructed to not testify about things that he is not shown.

THE COURT: What is the--it would be an incompetent opinion if he were to testify and give an opinion on items he has not seen or examined.

MR. BLASIER: Items that the jury has been presented with. He has seen other items. II don't want him blurting out about things that haven't been introduced.

MR. DARDEN: We know what we are doing.

MR. BLASIER: I'm not sure Mr. Rubin does.

THE COURT: Mr. Yochelson, what is the status of your conversations with NBC?

MR. YOCHELSON: Your Honor, Miss Egerton is here from NBC. I would ask her to step forward. She could step forward to represent NBC's position. However, with respect to the declarations that we referred to yesterday, apparently Miss Egerton has been unable to secure any modification, however--

MR. COCHRAN: Your Honor, may I have Mr. Simpson out for this?

THE COURT: All right.

MR. YOCHELSON: She is of the opinion and I join--

THE COURT: Hold on.

(Brief pause.)

(The Defendant enters the courtroom.)

THE COURT: All right. The record should reflect now the presence of the Defendant, Mr. Simpson. We also have present counsel Anne Egerton representing NBC. Good morning, counsel.

MS. EGERTON: Good morning, your Honor. I wanted to summarize very briefly for the court the history of these ten subpoenas, now eleven. We received another one late yesterday which I will come to in a minute.

THE COURT: All right. It is noted from your letter to the court.

MS. EGERTON: Yes, I know, your Honor, but what we have on the record as of late yesterday afternoon is a statement by Ms. Clark that NBC has been, I think her phrase was, totally uncooperative in responding to the subpoenas, and therefore I would like an opportunity very briefly to summarize for the court what the history of this has been. We have received ten separate subpoenas over fourteen months. We have responded to each and every one of those subpoenas. We have produced 19 separate videotapes which constitutes about three Bekins boxes full of material. In addition to the videotapes, we have produced eight--at least eight custodian of records declarations. In order to produce those videotapes which were first requested on VHS and later on three-quarter inch tape, we were asked by the District Attorney's office to produce them on a very expedited basis. As a consequence we had videotape engineers working nights and we had videotape engineers working weekends. I personally have spent more than 50 hours responding to these subpoenas. There are countless others at NBC, videotape engineers, clerical staff, other lawyers, many in the sports division who have spent tens and tens, if not hundreds of hours, complying with the many, many requests for footage that we have received from the Prosecution in this case. So when Ms. Clark represents to this court and to the public that we have not been cooperative, I can only conclude, your Honor, that she has not yet had an opportunity to talk with her colleagues in the District Attorney's office with whom I have been in almost constant contact over the last year, including Mr. Yochelson, Patty Jo Fairbanks, ken lynch and Mr. Hodgman himself who told me as recently as last Tuesday, in essence, that he appreciated our many efforts to date. The--all of these subpoenas may well be invalid. They are issued by a California court for the appearance of a witness who works and lives in New York and for footage located in New York. As I'm sure the court is well aware there are specific provisions in the California penal code in 1334.3 for securing the attendance of witnesses in foreign jurisdictions. The District Attorney's office, for reasons that I am not privy to, your Honor, has made no effort to comply with any of those provisions here. We I believe, respectfully, would have been well within our rights to decline to respond to the subpoenas, but we have not done that. We have responded. We have responded promptly. We have knocked ourselves out to get them three boxes full of material. And the only thing that we have respectfully declined to do is to fly a witness voluntarily--in response to an essentially invalid subpoena, to fly a witness 6000 miles to testify that a piece of footage of a NFL game is what it appears to be, a piece of footage of a NFL game. Until yesterday at about 4:30 when Miss Clark mentioned the January, 1992, game, we did not even know which specific footage in those nineteen lengthy tapes in three Bekins boxes full we were being requested to produce a witness to authenticate. And the reason that there is not a person who is the person that we could bring out here to do that is because of the way these copies were made. Because the Prosecution wanted them on a very expedited basis and because we had people working literally around the clock in New York in videotape edit rooms making these dubs, there were a variety of people who worked on the dubs, many, many different videotape engineers working night shifts and so on, they were supervised by different managers of the videotape library. So my concern, which I have expressed many times to Mr. Yochelson, with whom I've had a very good relationship all these many months, and to Mr. Hodgman last week, is that my concern is that if we were to fly a witness out here, that that witness might not be able to say--that witness would not be able to say I made these copies myself. Under NBC's contracts with unions and guilds that work is done by represented employees. They may be supervised by others. So what we have repeatedly said is we don't understand, quite frankly, why the Prosecution couldn't simply say to the Defense, these are the clips we want to get in, these are NFL games at which Mr. Simpson himself was present. No one can really say that these little clips are what they appear to be, clips of games at which Mr. Simpson was present. So I have a motion to quash that I have prepared. We are not going to file it, your Honor. If--if the court wants us to bring a witness 6000 miles to testify to this simple foundational fact, we will do that. As I say, there has been no compliance with 1334.3. Why that is, I don't know. We get subpoenas everyday, sometimes three or four a day, from lots and lots of people who all think their, case federal or state or civil or criminal, is as important as this one. We try to respond to all of those. Most of those people follow the rules. Now, why some of the rules aren't being followed here, I don't know, but the bottom line is we certainly don't want to be blamed for the Prosecution's not going through the uniform act. And if the court says to me you want us to fly someone out here, that may mean we have to redub the footage because I'm not sure we can identify the person who in the middle of the night on a Tuesday last June made that little piece of tape that we understand the Prosecution now seeks to introduce, we will put that person on a plane and we will bring him out here.

THE COURT: Mr. Yochelson.

MR. YOCHELSON: Your Honor, we are spending much too much time on something that could have been handled in a perfunctory manner. Yes, NBC has provided videotapes whenever they have asked for them. What they have not provided us with is the guarantee of a live witness, if necessary, or a custodian's declaration of record which was not received until yesterday. We now have a custodian's declaration of record and we are prepared to go forward. And with respect to the specific tapes that are going to be introduced in court, at Miss Egerton's request a week and a half ago I sent her a chart detailing specifically what segments we were using, and I asked her to try to make efforts to try to ascertain who dubbed these and who would be the live witness. Those results are still not forthcoming. Regardless of any of this, the fact of the matter is we are seeking to introduce footage at this time from one football game played on January 5th, 1992. Now, I agree with counsel that this is a matter that parties could easily stipulate to, but, frankly, counsel from NBC is not trying this case, the lawyers here are trying this case, and we have asked the Defense to consider a stipulation. That has not been forthcoming. And frankly we can't force them to accept a stipulation. We are going to ask the court today to take notice of the declaration of records that has been filed. We can explain this. It covers the segment of tape that was played in court yesterday and we believe that this will suffice and this will settle the matter.

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

THE COURT: All right. What is this--is this a new declaration from the one that was submitted yesterday?

MS. EGERTON: No, your Honor, it is the same one.

MR. YOCHELSON: It is the same declaration, but I believe we can point out to the court that the videotape that was offered in court is videotape that came as a result of this stipulation--this declaration. That declaration refers to a pre and post game show which they were unable to locate; however, the declaration also states that the remainder of the tape was provided by NBC for the game and the half time shows. The segment of tape that we are offering is a brief segment that came at the end of the half time show and the beginning of the third quarter and it came from the three quarter-inch videotapes that NBC provided. In fact, I have them here. There does remain a matter of a second subpoena which we can take up in a moment, but let's--let's cover this. We believe that evidence code section 1560 has been fulfilled and that the foundation has been laid with respect to this one piece of video.

THE COURT: All right. I thought the declaration from Mr. La place yesterday indicated that he could not vouch for that particular videotape. Did I misread that?

MS. EGERTON: Your Honor, Mr. La place, he did six different declarations because we received the subpoenas which were sort of oddly framed. One would call for the half time show and another would call for the pregame game and postgame. In another, subpoenas for another date, one would call for the pregame and would call for the game anyway, so we tried to frame the language of the declarations to respond to each subpoena. The one that is at issue here, as Mr. Yochelson said, called for the game, the pregame and the postgame, not including halftime. What we were unable to locate was the pregame and postgame. Even though, we, you know, had a retired person even check at his home for tapes, that is not, as I understand it, what the Prosecution seeks to introduce. So the bottom line is that we have authenticated all footage we have produced.

Needless to say, something we could not locate and did not produce, we wouldn't presume to authenticate, so the language the court may have been looking at yesterday, which is at lines 17 and 18 of that declaration, refers only to the pregame and postgame footage, which again I understand is not now at issue.

MR. YOCHELSON: And that is not what we are offering.

MS. EGERTON: So paragraph 2, your Honor.

THE COURT: I'm sorry, which affidavit are you referring to?

MS. EGERTON: They are all dated July 5th, so it is a little hard to tell, but it is the one, if you look at line 11, it is the one that refers to the Chiefs and Bills played on January 5, 1992, and it says: "The videotapes that were produced contain a true copy of the broadcast footage of the game."

THE COURT: All right.

MS. EGERTON: "It was prepared by NBC personnel in the ordinary course of business at or near the date," et cetera.

THE COURT: All right. Any other--any other comment, Mr. Blasier?

MR. BLASIER: Yes, your Honor. As I understand it, and I think it is important that the papers that we got from NBC indicate that the first subpoena for these two football games was July 11 of 1994. I think that is relevant to the issue of whether they had adequate opportunity to prepare this issue. Nonetheless, I think what the court is being asked to do is to take some sort of notice of what NBC says is a legally invalid subpoena with a declaration that says we can't provide you everything that you subpoenaed, we don't know where the rest of it is. We object to that. The very reason why a custodian should be here to clarify that. We are not prepared to stipulate to anything and we think this is an invalid subpoena, an affidavit that tells them I can't give you what you ask for and we object to it.

THE COURT: Mr. Yochelson, any response?

MR. YOCHELSON: Your Honor, if--we believe that the provisions of evidence code section 1560 have been complied with. If counsel is willing at this time to provide a custodian of records to fly out here, we will pay for it and we will deal with it.

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

THE COURT: All right.

MR. YOCHELSON: But we want to use the evidence now and we are indicating that this is our good faith representation that we can establish a foundation for this tape.

THE COURT: All right. Is the matter submitted?

MR. YOCHELSON: Yes, exempt for there remains a second outstanding subpoena with respect to testimony from the witness yesterday, Debra Guidera.

MS. EGERTON: We received yesterday, shortly before five o'clock, your Honor, an eleventh subpoena from the District Attorney. This one says that we or provide a live witness tomorrow morning at nine o'clock in this court and to bring with that witness another five or six of the big 3/4 inch tapes of now a 1993 game. Because of what we have been through on this, your Honor, frankly, I would just like to seek the court's guidance. I don't want to file the motion to quash. There are the same problems with this subpoena as with all the others, the noncompliance with 1330 and 134.3, but frankly, your Honor, we--I have spent hours and hours and hours. I want to be done with this. If the court wants us to bring a live witness tomorrow for that, we will try to do that.

MR. YOCHELSON: Your Honor, for that we don't need a live witness; we can do that later. If we could simply have that tape, even in a VHS format, we will accept it along with an appropriate custodian's record--

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

MR. YOCHELSON: --that will meet the requirement of evidence code section 1560 and the foundation that has been laid in the form of the testimony of Debra Guidera.

THE COURT: All right.

MS. EGERTON: We can do that, your Honor. I'm just not sure we can do it by nine o'clock tomorrow morning. Typically under evidence code 1560 we get five days. We will do our best, as always.

THE COURT: I understand. I'm going to direct you to make your best efforts then to provide the tape and declaration of a custodian of record by the close of business tomorrow.

MS. EGERTON: Yes.

THE COURT: Thank you.

MR. SHAPIRO: I'm sure you can get it fed-ex'd today, Judge.

MS. EGERTON: Now, on this January, `92, game, we are to bring a witness tomorrow morning?

THE COURT: As to the January, `92, game, I'm going to find on the basis of the declaration to me that the declaration that is page 13 of 16 to your letter to the court dated September 11th is sufficient for the purposes of California evidence code, so the objection will be overruled.

MS. EGERTON: Thank you, your Honor.

THE COURT: All right. Mr. Blasier.

MR. BLASIER: Your Honor, as to this next videotape, we have not been provided with that. We have not been provided with three Bekins boxes either, but the one that we are talking about now is central to Mr. Rubin's testimony and I cannot cross-examine him on the Guidera picture until I see the videotape. If you will notice, the Guidera picture does not show a lot of detail. I can't cross-examine him on that without seeing this videotape.

MR. YOCHELSON: And your Honor, we haven't seen it either and we are attempting to get it, and when we get it, we will--we'll evaluate the evidence, but the fact of the matter is we don't have it either.

THE COURT: Well, given the offer that it is going to take twenty minutes to direct examine Mr. Rubin, Mr. Rubin may be on and off before any of this stuff shows up.

MR. YOCHELSON: Well, if that is the case, we will still move to present the videotape and let the jury evaluate it for themselves.

THE COURT: That will be something we take up later.

MR. BLASIER: Technically I can't cross him on something when there is other evidence out there that I don't know what is in it. I have certain questions I want to ask him about that picture. I can't do it this way.

THE COURT: All right. Miss Egerton, I think your duties are done.

MS. EGERTON: Thank you.

THE COURT: Mrs. Robertson, may I see the board again from yesterday?

(Brief pause.)

THE COURT: And Mr. Hadden, we will take up the pitchess matter as soon as we conclude this.

(Brief pause.)

THE COURT: Excuse me, counsel.

(Brief pause.)

THE COURT: All right. The Guidera photographs are of what appear to be brown gloves and Mr. Simpson appears to be adjusting microphone control.

MR. BLASIER: Your Honor, I would be happy to--

THE COURT: Thank you.

MR. BLASIER: I would be happy to make an in camera showing at side bar as to why I can't cross without that video.

THE COURT: All right. I don't think that is necessary at this point. We may have to adjourn the cross-examination at that point as to Mr. Rubin. All right.

(Brief pause.)

THE COURT: As to the pitchess matter, we will conclude this and then we will bring the jury down.

MR. COCHRAN: Your Honor, I have a motion after we finish this next matter.

THE COURT: I'm sorry?

MR. COCHRAN: I have a motion I would like to bring to the court's attention after we finish.

MR. DOUGLAS: Your Honor, I have a--

THE COURT: All right. Mr. Scheck, you filed a supplemental memorandum of points and authorities?

MR. SCHECK: Yes, your Honor. It really is, frankly, nothing more than the case that--I said there was a Pennsylvania case from the Supreme Court, it was Pennsylvania versus Richie, and I would command to the court's attention that these are cases directly on point with respect to statutory privileges. And I'm sure the court is familiar with other related case law concerning informant's privileges, but the point is simply that our Brady rights trump any absolute prohibition here, and we think there are a number of different ways that we should--the court can pursue these records. Obviously it is futile to pursue a pitchess motion that limits us to something that goes back to--limits us to five years, when the material that arose in the course of the investigation in this case by internal affairs indicates that what we are all interested in is something that is over five years old. And I think the constitution and due process requires that these records be ordered turned over to the court for its inspection and possibly turning over to the Defense. And therefore the statutory restrictions of pitchess have to be overruled.

THE COURT: All right. Any other comment?

MR. HADDEN: Thank you, your Honor. The think the statute speaks for itself. The requested materials by the--by the Defense in this case have no bearing whatsoever to the issues in this case. My client hasn't worked with Mark Fuhrman since 1989. There is no showing he had anything to do with anything that happened at Bundy or Rockingham. As counsel has still not addressed 1047, and even if one were to expansively view 1047 of the evidence code, you still get to the situation where my client wasn't there. He has absolutely no connection whatsoever--counsel submitted a hypothetical in a footnote in the brief that he submitted. That hypothetical has no bearing whatsoever to the facts of this case. There is not even a suggestion that my client had anything to do with anything that happened on June 12th of 1994. I would also note that in the--the Defense's purported search for the truth, they haven't exactly engaged in a rush for discovery. The information related to this matter was known to them as early as possibly February, certainly as early as April. They have sat on it. They have not attempted to get arrest reports and transcripts which they are seeking from my client's personnel file. If there are any such materials like that in my client's personnel file, your Honor, they have to show first under pitchess that they have made a good faith effort to find those materials. They haven't. They certainly haven't given us anything in their declaration to show that they have made a good faith effort to find any of these materials. The whole essence of the pitchess at that time, your Honor, is a balancing, it is a balancing of certain constitutional rights; the Defendant's constitutional right of confrontation and my client's California constitutionally based right to privacy. And in this particular case, before they can invade my client's personnel file, they have to show there is a necessity for it, and they haven't done it, they have not met the requirements of the statute and they should be denied access to the file.

THE COURT: All right.

MR. HADDEN: Thank you.

THE COURT: Thank you.

MR. SCHECK: As to the relevancy of this case, I think it is clear that this officer, in the course of an investigation for Brady material in this case, indicated that he burned a diary that contained information about misconduct of Detective Fuhrman because he knew it was being sought, that this officer, with respect to the swastika incident and with respect to this incident where he could, if we got the records, help us prove that Detective Fuhrman had falsified evidence, and asked a police report--and asked this officer or got this officer to conform his testimony, to prove the code of silence, I think it is all potentially highly relevant. And there might have been more in that diary. We think that this officer, and the answers he gave us, in light of what we found on the McKinny tapes, was not telling us the truth and we had no--we did not know and we still don't know whether the internal affairs reports that the court has reviewed in camera contain anything about this diary and this information.

So we think it is relevant and we still think that it is extraordinary that the legislature has this statute. Here is Mark Fuhrman in the Fuhrman tapes bragging about all the different internal affairs investigations that he has been able to beat in terms of his own misconduct, and when we make a pitchess motion for Fuhrman and we make other related pitchess motions, not one thing came out. The only reason we even became clear that Detective Purdy had relevant information as to Fuhrman's racial attitude, perhaps dealing with the swastika incident and other misconduct in terms of fabricating evidence, is because of the statements that Detective Purdy himself made to a District Attorney in this case who Miss Clark told to get out of her office. And only because we continued to pursue that, and in light of the new evidence in the McKinny tapes and in additional interview with Detective Purdy and others, are we now on the trail of something that we think will be additional exculpatory evidence. And if internal affairs interviewed him in relation to those materials in this case, how can they rely upon a statute saying that we are not entitled to see what files internal affairs might have reviewed or ought to have reviewed when they interviewed Purdy in this case within the five-year period just because it relates to something five years back? I think that is nuts, but besides that, we have the constitution to rely upon and that is where we place our faith.

THE COURT: All right. Thank you, counsel. All right. The request under pitchess for discovery of the personnel file of Detective Purdy will be denied for the following reasons: One, the issue goes to a collateral matter, which is the credibility of Mr. Fuhrman. The conduct and contact between Detective Purdy and Detective Fuhrman dates back to 1989. It is unlikely that the--their contact would lead to exculpatory evidence in this particular case. Also, the file that has been suggested here, that information is a matter of public record in the records of the court. It is accessible to counsel. Also, the court is restricted by evidence code section 1047 from going further on this. I agree with you, Mr. Scheck, that that appears to be in conflict with certain rulings of the United States Supreme Court and I would encourage to take a writ on the matter. All right.

MR. SCHECK: Your Honor, just one final matter. I realize your 8:30 calendar is overly burdened, so to save you a time I have written a letter, that I will have copies made of, concerning our request for relief concerning further test impressions of Ronald Goldman's jeans. We have had an opportunity--

THE COURT: Mr. Goldberg is here. I thought we were going to try to discuss this today at 8:30.

MR. SCHECK: I understand. To save you time I have written a letter and you can read it and you can ask him to address it. I just don't want anything to happen before we have an opportunity to deal with it.

MS. CLARK: Can we have the letter, your Honor?

MR. SCHECK: I am making a copy of it right now.

THE COURT: We will take a recess for fifteen at this point and I will see counsel in chambers with a court reporter.

(Recess.)

(Pages 45270 through 45281, volume 221A, 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 counsel. The People are represented. The jury is not present. The court has had an in camera hearing with Defense counsel concerning the ability to go forward with cross-examination of the People's next product witness, Mr. Rubin. And Mr. Darden--is Mr. Yochelson gone already?

MR. DARDEN: Yes.

THE COURT: All right. On the basis of that offer, my inclination at this point is to require Mr. Blasier to go forward with the cross-examination of Mr. Rubin, however, he may reserve cross-examination as to one or two of the items, pending further revelations in discovery, which will require Mr. Rubin, unfortunately, probably having to return one more time in the next week to ten days.

MR. DARDEN: Mr. Blasier has Mr. Rubin's home number. Mr. Rubin says he is amenable.

THE COURT: All right. Let's proceed.

MR. COCHRAN: Your Honor--may I be heard, your Honor?

THE COURT: As to what?

MR. COCHRAN: A couple of motions, a couple things that took place.

THE COURT: Motions will be at six o'clock.

MR. COCHRAN: One thing, your Honor. We are concerned about what we talked about back in chambers and we need an immediate conference with your Honor and we have talked with Mr. Dershowitz and we have a prospective that we want to bring to your Honor's attention and I want to give your Honor a head's up on that matter. We need to talk to you right now.

(Brief pause.)

MR. COCHRAN: Proceed now with regard to the juror problem? I can address it.

THE COURT: Yes.

MR. COCHRAN: Your Honor, in chambers during the last break one of the jurors, who shall remain nameless, has a potential problem and brought that to your Honor's attention with regard to--shall I proceed--with regard to some rental property that she is having and I understand she wants--

THE COURT: I think you can be a little more oblique in how you discuss it. I understand what we are talking about.

MR. COCHRAN: You understand. All right. And the court's offer to this juror we find totally unacceptable to the point that it would be--I think would have a tremendously adverse effect if that is done, and we think it is unprecedented. We took the step of calling Mr. Dershowitz and our other appellate lawyers. They feel so strongly they want to take a writ on it right away.

THE COURT: Take a writ.

MR. COCHRAN: We will do that. We will do that. We wanted to let you know we will do that, but I think I should try to talk you out of this process because what it does, it will taint that particular juror. The rest of those jurors aren't getting that benefit and those are public funds. I don't think we can do that. It is over and above someone's salary and we don't think it is appropriate. And I think I should bring it to you in the strongest possible terms, and furthermore, this juror will even be more beholden to your from the standpoint of not that you give her any cues or clues--

THE COURT: You realize there is precedence for this?

MR. COCHRAN: No, I don't. I don't think there is precedent for that particular thing for what is happening in this case. I don't think--

THE COURT: Take your writ, counsel.

MR. COCHRAN: We will take the writ, your Honor, but we would like to be heard further because we think this is unfair to the other jurors, unfair to this particular lady, and it is just--I think that it is--it sends a message that is just--it is hard to express. And so I wanted to at least indicate to the court how strongly we felt about this and I would like for you to reconsider this because I think it is going to a real dangerous precedent to do this when we are not doing it for other jurors. More importantly, what it says about the system, to pay a juror above and beyond, is inappropriate.

THE COURT: Okay.

MR. COCHRAN: Will you entertain further discussion on it?

THE COURT: Well, I have noted your objection.

MR. COCHRAN: All right. Okay. Very good. What can I say?

(Discussion held off the record between Defense counsel.)

THE COURT: All right.

MR. COCHRAN: The other thing and another motion I can bring, we have a motion regarding sequestration of the jurors, and do you want to hear that at the end of the day?

THE COURT: Six o'clock.

MR. COCHRAN: All right. And we have a motion regarding scope of the rebuttal, which the balance of the scope--

THE COURT: We will take care of that after we finish with Mr. Rubin.

MR. COCHRAN: All right. All right. Then we may have some further remarks regarding this juror problem at that time, if the court would allow us.

THE COURT: All right. Let's have the jury, please.

MR. DARDEN: Oh, your Honor, I need to get a--I need to get a video monitor into the courtroom.

THE COURT: A video monitor?

MR. DARDEN: Yeah.

THE COURT: For what purpose?

MR. DARDEN: Clarity, the videotape as Mr. Rubin described.

THE COURT: Is there a reason we didn't do that during all this down time?

MR. DARDEN: Yes. I forgot to bring it to your attention and ask your permission.

THE COURT: Is it on its way?

MR. DARDEN: It is right outside the door.

THE COURT: Bring it in.

(Brief pause.)

MR. BLASIER: Is this for something we haven't seen?

MR. DARDEN: No.

THE COURT: The indication by Mr. Darden was he felt this monitor had greater clarity.

MR. BLASIER: Can we preview it first?

THE COURT: I think this is the same thing that we looked at yesterday.

MR. BLASIER: If it has different quality, it is not the same thing.

THE COURT: And this is just another feed off of--Mr. Darden?

MR. DARDEN: Yes.

THE COURT: This is just another feed--in other words, you are just directing the same feed to this particular monitor?

MR. DARDEN: Yes, yes. Same video that we saw yesterday.

THE COURT: Which video? The Boomer Esiason video?

MR. DARDEN: Pardon?

THE COURT: Which video?

MR. DARDEN: The one we saw yesterday, the Boomer Esiason video, January 6, `92, video now.

THE COURT: All right.

MR. BLASIER: Bringing in special equipment because what we have been using for eight months is not adequate? Is that what you are saying?

MR. DARDEN: Well, Mr. Rubin is going to be pointing to stitching and other small items and detail on the glove and that is why we brought a monitor in for clarity.

THE COURT: All right. Let's have the--I will have this played for Mr. Blasier and counsel so they see can see if there is any difference on how it is displayed on the direct view monitor.

(Brief pause.)

THE COURT: If we are going to use this, Mr. Darden, you are going to have to use the central podium.

MR. DARDEN: I'm sorry?

THE COURT: If you are going to use this, you are going to need to use the central podium.

THE COURT: All right. Mr. Fairtlough, just leave it there. All right. Would you play for Mr. Blasier, please, the video on the new monitor.

MR. FAIRTLOUGH: Yes, your Honor.

MR. SHAPIRO: Your Honor, Mr. Simpson would like to see this also.

THE COURT: All right. Let's turn the monitor around so we can all see.

(Brief pause.)

THE COURT: All right. Ninety more degrees.

(Brief pause.)

THE COURT: Mr. Harris, this is so Mr. Simpson can see.

(Brief pause.)

THE COURT: Swing it around some more. (Brief pause.)

THE COURT: Thank you.

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

MR. FAIRTLOUGH: Your Honor, at this time the additional feed is causing us to lose a little too much signal, so I don't think we are going to end up using this. It is just not--it is not giving the sort of image quality that we hoped it would.

MR. BLASIER: I was about to agree to it.

THE COURT: All right. Break it down.

(Brief pause.)

THE COURT: All right. Deputy Magnera, let's have the jury, please.

(Brief pause.)

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

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

THE JURY: Good morning.

THE COURT: All right. The People may call their next witness.

MR. DARDEN: Richard Rubin, your Honor.

THE COURT: All right. Richard Rubin, recalled. Mrs. Robertson.

Richard Rubin, recalled as a witness by the People in rebuttal, was sworn and testified as follows:

THE CLERK: Please raise your right hand to be sworn. 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. RUBIN: I do.

THE CLERK: Please state and spell your first and last names for the record.

MR. RUBIN: Richard Rubin, R-I-C-H-A-R-D R-U-B-I-N.

THE COURT: Mr. Darden.

MR. DARDEN: Thank you, your Honor. Good morning.

THE JURY: Good morning.

DIRECT EXAMINATION BY MR. DARDEN

MR. DARDEN: Mr. Rubin, you testified before this jury on June 21st, that was the last time; is that correct?

MR. RUBIN: That's correct.

MR. DARDEN: Okay. And you visited me in my office last week or rather the 30th or 31st of August?

MR. RUBIN: August 31st.

MR. DARDEN: And prior to that date had you been sent to videotape and/or photographs by a member of my office?

MR. RUBIN: Yes, I did receive some.

MR. DARDEN: Okay. Was that both videotapes and photographs?

MR. RUBIN: Yes.

MR. DARDEN: What was shown in those photographs?

MR. RUBIN: There were various still photos and videos of a group of NFL football games where Mr. Simpson was announcing.

MR. DARDEN: Okay. And you weren't present in the courtroom yesterday afternoon; is that correct?

MR. RUBIN: I was not.

MR. DARDEN: Okay. But did you watch on television the photographs and videotape that was displayed to the jury?

MR. RUBIN: I saw some of it.

MR. DARDEN: Okay. Did those videotapes and photographs appear to be videotapes and photographs that you have seen before?

MR. RUBIN: Yes, they are.

MR. DARDEN: And having had copies of those same videotapes and photographs, did you have an opportunity to study them carefully?

MR. RUBIN: Yes, I did.

MR. DARDEN: Okay. You and I talked about your observations?

MR. RUBIN: Yes, we did.

MR. DARDEN: Okay. And have you also spoken to the Defense about your observations of that videotape and those photographs?

MR. RUBIN: Yes. Initially I was contacted at my home by Mr. Blasier on September 1st when I was told I would be coming back, which was news to me at the time, and then yesterday morning during a break I spent some time with Mr. Blasier and then yesterday at the conclusion of court I spent some time with Mr. Blasier.

MR. DARDEN: Now, when you were here on other occasions, you took a look at the Rockingham glove which has been marked 164-A; is that correct?

MR. RUBIN: Yes.

MR. DARDEN: Okay. And you also had the opportunity to take a look at the new Aris Leather Light gloves marked 372-C; is that correct?

MR. RUBIN: I'm not a hundred percent sure what that particular style glove is.

(Brief pause.)

MR. RUBIN: Yes, I have seen this before.

MR. DARDEN: You were here for both glove demonstrations?

MR. RUBIN: Yes, I was.

MR. DARDEN: Okay. You told us that the style number of the glove at Rockingham and Bundy was an Aris 70263; is that correct?

MR. RUBIN: That's correct.

MR. DARDEN: And you also told us that the new pair of gloves tried on by the Defendant were also 70263's?

MR. RUBIN: That's correct.

MR. DARDEN: And the videotape that you looked at and the photographs that you also looked at, why were you looking?

MR. RUBIN: I was asked to look at these various photos and videos and try to establish whether or not they were the same.

MR. BLASIER: Objection, hearsay.

THE COURT: What was the purpose of looking at them, sir?

MR. RUBIN: To determine whether or not they were the same style as what was shown to me as part of the crime scene gloves.

MR. DARDEN: And were you able to make a determination?

MR. RUBIN: On some of them, yes.

MR. DARDEN: And you also told us when you testified here in June that you in the past had actually manufactured, sold, marketed and designed gloves for Aris; is that correct?

MR. RUBIN: Yes, I did.

MR. DARDEN: Okay. You actually helped build factories, glove factories?

MR. RUBIN: Yes, I have.

MR. DARDEN: And you also told us that the Aris style no. 70263 was a unique glove; is that correct?

MR. RUBIN: It was quite rare by comparison to all the gloves that I was involved in, as far as production, design and marketing. It was very limited in quantity and extremely difficult to make, very slow production. It was very distinctive by nature due to some of the characteristics of the glove, yes.

MR. DARDEN: Okay. And are there certain characteristics of the glove that help you as an expert to identify the glove when you see the glove?

MR. RUBIN: There are certain characteristics of the Brossier sewn style 70263 which in the design of the glove were built to make sure that it really didn't look like gloves that were less expensive. It was stated on the record, I believe, that the gloves were retailing at $55.00 and while to the average layman a glove is really four fingers and a thumb, we had to be able to justify the fact that this glove was going to be retailing at $55.00.

MR. BLASIER: I'm going to object to the narrative. Nonresponsive.

THE COURT: Next question.

MR. DARDEN: The Brossier stitching is unique to the glove?

MR. RUBIN: Very.

MR. DARDEN: Okay. How about the vent, the palm vent?

MR. RUBIN: The palm vent is the least unique characteristic of the specific style in question.

MR. DARDEN: Does the palm vent help you to identify the glove when you see it?

MR. RUBIN: In conjunction with other characteristics, yes.

MR. DARDEN: Okay. Is there something called a blind hem?

MR. RUBIN: Yes, there is.

MR. DARDEN: What is a blind hem?

MR. RUBIN: A blind hem is where at the end of the glove at the wrist the leather is turned over, a seamstress, usually very skilled, actually sews through the lining, through the hem on the inside and then catches a little bit of the leather that would be toward the outside of the glove without going through the leather and then comes back through and closes the seam.

MR. DARDEN: Okay.

MR. RUBIN: Creating a very smooth clean look at the back of the glove.

MR. DARDEN: So it doesn't leave a hem on the outside of the glove?

MR. RUBIN: It is not supposed to leave any identifiable marks on the outside.

MR. DARDEN: Okay. What about the letter, the leather used to make this particular glove?

MR. RUBIN: The leather that was used in the Aris lights program exclusively for Bloomingdales was approximately 33 to 40 percent lighter weight than the conventional leather used in all the other production of men's gloves. It was approximately .55 to .6 millimeters in thickness.

MR. DARDEN: Was there anything unique about the lining of this particular glove?

MR. RUBIN: This was the only leather glove style that was ever produced with a ten-gauge very thin lining which was one end of cashmere yarn so that the entire glove package itself was extremely thin. All of the other glove linings that we used were twice as thick.

MR. DARDEN: Now, let me direct your attention to the stitching on the back of 164-A. Is there needlepoint stitching on the backhand--on the back of the hand?

MR. RUBIN: There are three decorative points called draws on the back of the glove, yes.

MR. DARDEN: Okay. And is this unique to the style 70263?

MR. RUBIN: It is part of style 70263. Most men's gloves do this three points on the back or three draws. This particular draw is a one, two, three needle configuration without cord underneath to raise them. It is a flat point, but they are used on other men's gloves.

MR. DARDEN: And you told us a little while ago, a few moments ago, that you were able to determine whether or not some of the gloves worn by the Defendant in those videos and photographs--

MR. BLASIER: Objection, leading.

THE COURT: State the question, counsel.

MR. DARDEN: You were able to determine whether or not some of those gloves in the photos and videos were in fact Aris 70263's?

MR. RUBIN: Yes, I was.

MR. DARDEN: And if in fact they are, they would be the same model and style at the crime scene and Rockingham glove; is that right?

MR. RUBIN: That's correct.

MR. DARDEN: I'm going to show you some videotape to start off. I'm going to start off, so that the record is clear, with the Bengals versus Bills game on January 6, `91. I'm not going to show you the entire tape. This is exhibit 608, I believe, but I am going to ask you to take a look at certain frame. Okay. For the record, the frame number is indicated on the video.

THE COURT: All right. Mr. Darden, if you would call those out when you start to examine Mr. Rubin as to any particular frame, please.

MR. DARDEN: Let's start at frame 248.

THE COURT: All right. Mrs. Robertson tells me that it must be 607.

MR. DARDEN: 607, your Honor.

THE COURT: 607. Yes.

(At 11:35 A.M., People's exhibit 607, a videotape, was played.)

THE COURT: Yes, 1/6/91 Bengals.

MR. DARDEN: Let's go to frame 2090.

MR. DARDEN: You have seen this frame before; is that correct?

MR. RUBIN: Yes, I have.

MR. DARDEN: Looking at that--that particular frame and the gloves shown in that frame, can you tell us whether or not that glove, the glove the Defendant is wearing, is a 70263?

MR. RUBIN: Of the key features that would be part of identifying style 70263, on the right hand the fine ridge stitching along the fingers primarily, the second finger, as well as the three-needlepoint configuration to the left of it are the two identifying factors that I would use to say that this is style 70263. This particular Brossier sewing machine creates a stitch with approximately 22 to 24 stitches to the inch and creates a continuous ridge which when I eliminate the other kinds of sewing that I know about within the glove industry, that to my way of thinking this can only be a Brossier seam.

MR. DARDEN: Looking at that glove do you see any water stains at all?

MR. RUBIN: Mr. Darden, on this particular monitor I can see a little bit, but as you know, I've had the advantage of looking at these photos and videos on small monitors.

MR. BLASIER: Your Honor, objection.

THE COURT: Nonresponsive. Next question.

MR. DARDEN: Have you seen other--strike that. Have you seen this same videotape on a smaller monitor?

MR. RUBIN: Yes, I have.

MR. BLASIER: Objection, your Honor.

THE COURT: Overruled.

MR. RUBIN: Yes, I have.

MR. DARDEN: And did that smaller monitor provide some more clarity?

MR. RUBIN: Yes, it did.

MR. DARDEN: And when you looked at this same frame on that smaller monitor were you able to see water spots or water stains?

MR. RUBIN: Yes. I saw water that had been stained on the left hand, yes.

MR. DARDEN: Could you tell whether or not the glove was absorbing that water with those water stains, just by looking at it?

MR. RUBIN: Yes, I could. In certain spots it was absorbing water.

MR. DARDEN: How could you tell that?

MR. RUBIN: Well, this particular glove is made out of naked leather and at this point in time it was in a position to absorb water or stains and literally the staining of the water droplet made the leather in that area appear darker.

MR. DARDEN: By the way, there was rainfall throughout this interview, was there not?

MR. RUBIN: I have seen the video roll, yes. There has been rainfall and he is holding an umbrella.

MR. DARDEN: Okay. And how about the fit of the glove? Can you tell us anything about the way the gloves fit in this particular frame?

MR. RUBIN: They are snug. They appear to have fit fine.

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

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

MR. DARDEN: Could you direct the arrow to the Brossier stitching that you referred to on the second finger a moment ago?

MR. RUBIN: On the right hand, if you go down to the second finger and you see that fine ridge from left to right, right across the finger, it is about a three-inch curve.

MR. DARDEN: You also mentioned the three needlepoints on the back of the glove?

MR. RUBIN: Right to the left of it it has the image of a three-needlepoint.

MR. DARDEN: Okay. Which hand are you referring to?

MR. RUBIN: The right hand.

MR. DARDEN: Okay. Can you direct the arrow, please?

MR. RUBIN: That is where it--that is where it is.

MR. DARDEN: Can we print this as 607-A, your Honor?

THE COURT: 607-A. I'm sorry, we already have an A, don't we? All right. 607-A.

MR. DARDEN: Okay.

(Peo's 607-A for id = photograph)

MR. DARDEN: We will next go to frame 1541.

MR. DARDEN: Here we are at frame 1541. Can you see the Brossier stitching in this frame?

MR. RUBIN: This is another version of the first picture. I can see some ridges on the top left finger that concur with what Brossier stitching would look like in a photograph.

MR. DARDEN: What characteristics are there, that is that relate to Brossier stitching, that are different from other kind of stitching that are done?

MR. RUBIN: It is really the most continuous seam that has ever been utilized within the glove industry, to my knowledge. The other sewing techniques create high/lows or raw edge effects or continuous curved effects, whereas this is clearly a seam that is created by the sewing machine grabbing the two pieces of leather and putting them together.

MR. DARDEN: Okay. And is that reflected in the crime scene glove or rather the Rockingham glove marked 164-A?

MR. RUBIN: Yes, it is.

MR. DARDEN: Is that also reflected in the new pair of gloves marked 372-C?

MR. RUBIN: No, it is not. This particular pair was the pair that they produced with the same style number after they went out of production.

MR. DARDEN: Oh, so that pair of gloves right there is not the same kind, the same type as the crime scene glove?

MR. RUBIN: No, it is not.

MR. DARDEN: How did you know that?

MR. RUBIN: That is what I did for fifteen years and it is quite easy for me to recognize it.

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

MR. DARDEN: What is the difference between the Rockingham and Bundy glove and this later model, the later model glove that you have in front of you?

MR. RUBIN: Even though it was manufactured with the same style number, 70263, the sewing technique is actually what is called one-half pk sewing and it has a totally different effect both on the palm and on the back of the glove, and in this particular case this isn't even the same leather that was utilized in the original gloves.

MR. DARDEN: What is--well, strike that. How many stitches per inch are there to a Brossier stitch?

MR. RUBIN: Approximately 22.

MR. DARDEN: And is that unique?

MR. RUBIN: It is almost a hundred percent more than all the other--

MR. BLASIER: Objection, no foundation.

THE COURT: Overruled.

MR. RUBIN: It is only a hundred percent more than the other conventional sewing techniques that exist and in the case of a hand-sewn it is approximately four times the amount.

MR. DARDEN: Let's go to frame 2425.

MR. DARDEN: Let me ask you to take a look at the fingertips, the ends of the finger in that particular photograph.

MR. RUBIN: Yes.

MR. DARDEN: Does it appear that the Defendant's hand or rather that his fingers are fully and completely into the glove?

MR. BLASIER: Objection, calls for speculation.

THE COURT: Overruled.

MR. RUBIN: In this particular picture one of two things have occurred. Either the gloves are not completely pulled down all the way onto his hand or there is a little excess in the fingertip.

MR. DARDEN: Now, when you were here last you spoke to us about the--the length of the fingers in the crime scene and Rockingham glove?

MR. RUBIN: Yes, I did.

MR. DARDEN: And you also spoke to us about the length of the Defendant's fingers?

MR. RUBIN: Yes, I did.

MR. DARDEN: And the size of his palm?

MR. RUBIN: Yes, I did.

MR. DARDEN: What size palm did you say the Defendant had?

MR. RUBIN: Mr. Simpson has a size extra large palm and the fingers on both of his hands are size large. Technically he is real size is a cadet extra large and this is where the actual fingers are approximately 3/8 to a half-inch shorter than a conventional perfect extra large.

MR. DARDEN: And so would you expect that if the Defendant fully placed his hand into a glove that his fingers would not reach the end of a traditional extra large glove?

MR. BLASIER: Objection, calls for speculation.

THE COURT: Overruled.

MR. RUBIN: In this particular case, as I stated for the record in my previous visit, there are definitely three different size extra large gloves; one being slightly under size, one being exactly standard, and one being a little bit larger than standard. And for this exercise I would say we have to use standard. In a standard extra large glove that was perfectly made for a perfect extra large hand, the fingers in that glove would be approximately 3/8 of an inch longer than Mr. Simpson would require.

MR. DARDEN: And you do see excess finger space in these gloves?

MR. RUBIN: In this particular photo, yes.

MR. DARDEN: Let's go to 2585.

MR. DARDEN: This frame depicts the Defendant's left hand; is that correct?

MR. RUBIN: Yes, it does.

MR. DARDEN: Can you see any excess finger space on the left hand?

MR. RUBIN: My monitor is very, very cloudy on this one.

MR. DARDEN: So you can't tell?

MR. RUBIN: Not in this particular one, not on the monitor.

MR. DARDEN: Okay. Let's go to 3357.

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

MR. DARDEN: On frame 3357 you can see the Defendant's right wrist area; is that correct?

MR. RUBIN: Yes, I can.

MR. DARDEN: Is there also a bunching up of the leather at the right wrist?

MR. RUBIN: It appears to have somewhat of a gathered look.

MR. DARDEN: And is that significant to you at all?

MR. RUBIN: This would be consistent with a lighter piece of lightweight leather, the leather is not that rigid or firm, and you could get easily get a gathered up look in a lighter weight leather.

MR. DARDEN: And so this bunching up or gathering up at the wrist area, is that consistent with this glove style being 70263?

MR. RUBIN: Yes.

MR. DARDEN: Let's go to 4060.

MR. DARDEN: Again you can see the right--the right glove, the right hand?

MR. RUBIN: Yes. This is a closer shot.

MR. DARDEN: Does the glove appear to have a snug fit?

MR. RUBIN: Yes, it does.

MR. BLASIER: Objection, leading.

THE COURT: Overruled.

MR. DARDEN: Okay. Can you see the needlepoint on the back of the glove?

MR. RUBIN: This particular shot shows me the three three-needlepoints on the back as well as the blind hem.

MR. DARDEN: Okay. Is that consistent with this glove being a model 70263?

MR. RUBIN: Yes, it is.

MR. DARDEN: Let's go to 4443.

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

MR. DARDEN: Take a look at this frame, if you will. Can you see the Defendant's left hand in this picture?

MR. RUBIN: Yes, I can.

MR. DARDEN: What, if anything, did you notice about the hem area, palm area?

MR. RUBIN: This pair of gloves appears to have a palm vent.

MR. DARDEN: Is that consistent with the model style no. 70263?

MR. RUBIN: Yes, it is.

MR. DARDEN: Can you also see the needlepoint on the--on the back of the right hand glove?

MR. RUBIN: Yes, I can.

MR. DARDEN: Let's go to 4582.

MR. DARDEN: And what do you see on the left hand wrist area?

MR. RUBIN: This is a slightly larger shot of the opening of the palm vent on the left hand--on the left hand.

MR. DARDEN: And 6777.

MR. DARDEN: Do you see any identifying characteristics in this photograph?

MR. RUBIN: Three points on the left hand as well as the blind hem and the palm vent on the right hand.

MR. DARDEN: You described for us a little while ago some of the characteristics unique to style no. 70263; is that correct?

MR. RUBIN: Yes, I did.

MR. DARDEN: Did you see each of those characteristics exhibited in these frames of this particular video?

MR. RUBIN: I have seen four of the possible six.

MR. DARDEN: Okay. You saw the Brossier stitching?

MR. RUBIN: Yes, I did.

MR. DARDEN: The palm vent?

MR. RUBIN: Yes, I did.

MR. BLASIER: Objection, leading.

THE COURT: Sustained.

MR. DARDEN: What are the other two characteristics that you saw?

MR. RUBIN: The palm vent, the blind hem, the three three-needlepoints, as well as the Brossier stitching.

MR. DARDEN: Did you see the cashmere lining?

MR. RUBIN: I did not.

MR. DARDEN: Okay. Now, this videotape is from January 6, 1991.

MR. BLASIER: Objection. Is that a question?

THE COURT: Next question.

MR. BLASIER: If so, no foundation.

MR. DARDEN: Let's assume that we've heard testimony that this videotape is from January 6, 1991. At that time and on that date did this glove come in a double extra large?

MR. RUBIN: No, it did not.

MR. DARDEN: And do you have an opinion as to whether or not the gloves worn by the Defendant in this video are Aris leather lights style no. 70263?

MR. RUBIN: Based on what I've seen I would say that this is style 70263 size extra large brown, knowing that I measured the Defendant's hand.

MR. DARDEN: Now certain are you of that?

MR. RUBIN: I'm a hundred percent certain.

MR. DARDEN: Let me show you some photographs. I believe it is 605, the Renken photographs.

MR. DARDEN: Judge, can I check your list? Are the Renken photographs 605 or 606?

THE COURT: I have 605 as being Mark Krueger. Renken I have as 606.

MR. DARDEN: We are going to go to 606, your Honor. May I ask Mr. Rubin to step down, your Honor?

THE COURT: Yes.

MR. RUBIN: (Witness complies.)

THE COURT: Mr. Darden.

MR. DARDEN: First, let me ask you to step to the side of the photograph, if you will, the photo board--no, to this one, between Miss Clark and the board. Now, are these--do these appear to be photographs also taken from that January 6, 1991, game?

MR. RUBIN: They appear to be.

MR. DARDEN: Okay. And looking at the first photograph of the Defendant with the umbrella--

MR. RUBIN: Yes.

MR. DARDEN: --do you see water--water stains on the gloves?

MR. RUBIN: Yes, I do.

MR. DARDEN: Can you see the Brossier stitching?

MR. RUBIN: Yes, I can.

MR. DARDEN: Can you see the needlepoint you described?

MR. RUBIN: I see the image of the needlepoints.

MR. DARDEN: Okay. Is there a blind hem?

MR. RUBIN: Yes, there is.

MR. DARDEN: Is that style no. 70263?

MR. RUBIN: Yes, it is.

MR. DARDEN: And would you also take a look at the photographs just to the right of the first one you just looked at.

MR. RUBIN: (Witness complies.) Yes.

MR. DARDEN: And if you will, will you turn around, please, and take a look at the photograph Miss Clark is holding. That would be 606.

MS. CLARK: 606 period.

MR. DARDEN: 606.

MR. RUBIN: Yes.

MR. DARDEN: Are the gloves worn by the Defendant in these four photographs the same style as the gloves found at Bundy and Rockingham?

MR. RUBIN: Yes. Yes, they are.

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

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

MR. DARDEN: Thank you. You can retake the witness stand.

MR. RUBIN: (Witness complies.)

MR. DARDEN: Can I leave the board and the--

THE COURT: Yes.

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

MR. DARDEN: I would like to go to the Kansas City/Buffalo game of January, 1994, which is on laser, your Honor.

MR. BLASIER: I'm sorry?

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

MR. DARDEN: Judge, we are going to go to the Stewart West photos at 12/29/93.

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

MR. DARDEN: Let me show you the photographs shown on the screen here. Those are black gloves; is that correct?

MR. RUBIN: Yes, they are.

MR. DARDEN: Looking at that glove, can you tell us whether or not there are any characteristics that are consistent with an Aris style no. 70263?

MR. RUBIN: This is a very clear picture of the Brossier stitching on the right hand forefinger, as well as the three three-needlepoints. There is a blind hem. And in addition to that, it confirms that this leather is very lightweight the way it is actually folded over in that one spot where it is bunched up, you can see that they are very close to each other, so it is a very, very thin glove with thin lining.

MR. DARDEN: This is frame no. 31175 for the record, your Honor.

THE COURT: Yes.

MR. DARDEN: If you will just step down for a moment.

MR. RUBIN: (Witness complies.)

MR. DARDEN: I'm going to take a look at the photographs taken by Stewart West on December 29, 1993.

MR. RUBIN: Yes.

MR. DARDEN: Looking at those photographs can you tell us whether or not the glove worn by the Defendant in those photographs is style no. 70263?

MR. RUBIN: Yes, it is.

MR. DARDEN: And your opinion is based on what, sir?

MR. RUBIN: The fact that the three most important elements of the design of the Brossier stitching, the three points and the blind hem, and those are the three elements I can see in this picture.

MR. DARDEN: While you are here, let me direct your attention to the photographs taken by Michael Romano. There are two photographs to the right of the board depicting the Defendant wearing black gloves; is that correct?

MR. RUBIN: That's correct.

MR. DARDEN: Also on frame 30706, your Honor.

THE COURT: Yes.

MR. DARDEN: Do you see the three needlepoints that you described earlier?

MR. RUBIN: Yes.

MR. DARDEN: In both photographs?

MR. RUBIN: Yes, I do.

MR. DARDEN: And in both photographs do you see the Brossier stitching?

MR. RUBIN: Yes, I do.

MR. DARDEN: Is there a blind hem?

MR. RUBIN: Yes, there is.

MR. DARDEN: Can you see the cashmere lining?

MR. RUBIN: In the blow-up on this photograph on the right, the beige lining is cashmere.

MR. DARDEN: Let me show you the gloves the Defendant tried on, the new gloves, People's 401.

THE COURT: Yes.

MR. DARDEN: Is there an Aris tag on those gloves?

MR. RUBIN: Yes, there is.

MR. DARDEN: And how does that tag compare in appearance to the tag that we see on the Michael Romano photographs?

MR. BLASIER: I'm going to object to that characterization of what that is in the picture. No foundation.

THE COURT: Rephrase the question.

MR. DARDEN: Well, on the Michael Romano photographs do you see a tag?

MR. RUBIN: Yes, I do.

MR. DARDEN: Can you tell us whether or not that tag is an Aris tag?

MR. RUBIN: I believe it is.

MR. DARDEN: And what is it about the tag that leads you to believe it is an Aris tag?

MR. RUBIN: All of the Aris leather gloves that were made in production for many years contained a printed rose patch, printed label with beige material with burgundy printing which determined the--it had the size, the country of origin, it did not include the style number, and it had the Aris logo with double chevrons and it was framed in a box in burgundy just a this is, and this one says, "100 percent cashmere made in the Philippines size extra large."

MR. DARDEN: He is referring to 401, your Honor, for the record.

MR. DARDEN: Does the tag shown in the photographs taken by Mr. Romano--strike that. How does the tag in the photograph taken by Mr. Romano compare to the tag on People's 401, the Aris glove that you are holding in your hand?

MR. RUBIN: It has the same characteristics of the beige background. I see some printing. I can see some burgundy printing, but I can't read it in this photo, but there is definitely something with a burgundy cast in it, which is--this is what--this is what it is.

MR. DARDEN: I'm sorry?

MR. RUBIN: It is--basically what you are seeing is this, (Indicating).

MS. CLARK: For the record, the witnesses is holding up 401, your Honor, the Romano photograph, and comparing the tags in each.

THE COURT: Yes. Thank you.

MR. DARDEN: You can take your seat.

MR. RUBIN: Yes, yes. (Witness complies.)

MR. DARDEN: When you first came out here to testify you were aware that Nicole Brown purchased two pairs of 70263's?

THE COURT: Sustained.

MR. DARDEN: Let me show you the receipt, 372-B.

MR. RUBIN: Yes, I am familiar with this.

MR. DARDEN: Okay. By the way, did you have any discussion with