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 Mrs.--with Mrs. Brenda Vemich regarding this particular receipt?

MR. RUBIN: Briefly.

MR. DARDEN: You don't work for Bloomingdales; is that right?

MR. RUBIN: No, I do not.

MR. DARDEN: We accounted for two pairs of style no. 70263?

MR. BLASIER: Objection, vague, argumentative.

THE COURT: Sustained.

MR. DARDEN: Well, have we accounted for one pair of brown style no. 70263 gloves?

MR. BLASIER: Objection, argumentative.

THE COURT: Sustained.

MR. DARDEN: Are the black gloves that you just saw in the Romano and West photographs style no. 70263?

MR. RUBIN: Yes, they are.

MR. DARDEN: I would like to show you a frame from a football game played on January 5, 1992, frame no. 25862.

THE COURT: All right. Which exhibit is this from?

MR. DARDEN: It is a--

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

MR. DARDEN: It is a new exhibit, your Honor.

THE COURT: Next in order.

THE CLERK: 614.

THE COURT: 614.

MR. DARDEN: It is part of the same disk. Disk doesn't help me.

MR. DARDEN: All right. 614, your Honor.

(Peo's 614 for id = portion of videotape)

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

MR. DARDEN: Is this a--a frame that you have seen before, sir?

MR. RUBIN: Yes, I have.

MR. DARDEN: And have you examined it?

MR. RUBIN: Yes, I have.

MR. DARDEN: Have you examined it carefully?

MR. RUBIN: Very.

MR. DARDEN: What characteristics, if any, do you see in that glove, that is, characteristics that are consistent with style no. 70263?

MR. RUBIN: This is the clearest and best shot that I have seen of the Brossier sewing on the fingers, but I can also see the image of the three points, but just the two characteristics, but this clearly is that continuous ridge of sewing that is indicative of style 70263.

MR. DARDEN: And to go back to the tags for a moment, you pointed out the tag in the Romano photograph and you also pointed out the tag on People's 401, the gloves, the new gloves the Defendant tried on here in open court; is that right?

MR. RUBIN: That's correct.

MR. DARDEN: There is only one tag on a pair of Aris leather lights?

MR. RUBIN: In the left hand.

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

MR. DARDEN: Let me show you the left-handed glove--I don't see the evidence tag--the glove recovered at Bundy. Does it also have an Aris tag?

MR. RUBIN: Yes, it does.

MR. DARDEN: In the left glove?

MR. RUBIN: Yes, it does.

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

MR. RUBIN: Same location; same size.

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

MR. DARDEN: Can you tell us whether or not the glove worn by the Defendant in still 25862, People's 614--

MR. BLASIER: Objection, vague.

THE COURT: Finish the question.

MR. DARDEN: I haven't finished the question.

MR. DARDEN: Can you tell us whether or not the glove depicted in People's 614 is an Aris light 70263?

MR. RUBIN: The key feature of the sewing on the fingers indicates it is style 70263.

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

MR. DARDEN: Showing you the glove tried on by the Defendant, People's 401, both the crime scene glove at Bundy, the glove found at Rockingham, and directing your attention to the glove shown in People's 614 here on the screen--

THE COURT: Frame 25862.

MR. DARDEN: --are each of these gloves the same style number?

MR. RUBIN: They all appear to be the same.

MR. DARDEN: Are they each Aris gloves?

MR. RUBIN: Yes, they are.

MR. DARDEN: Style no. 70263?

MR. RUBIN: Yes.

MR. DARDEN: Size extra large?

MR. BLASIER: Objection, asked and answered.

THE COURT: Overruled.

MR. RUBIN: The two gloves in front of me are marked extra large. They are extra large, and I believe that the gloves in the picture are extra large, knowing the Defendant--that I did measure the Defendant's hands.

MR. DARDEN: Let me ask you to step down and take a look at the photographs marked 612-A and B, the photographs taken by Debra Guidera on December 23rd, 1993. That would be a little over six months before the murders; is that correct?

MR. BLASIER: Objection, argumentative.

THE COURT: Sustained.

MR. RUBIN: Yes.

MR. DARDEN: Are these photographs that you have seen before?

MR. RUBIN: Yes, they are.

MR. DARDEN: You have examined these photographs before?

MR. RUBIN: Yes, I have.

MR. DARDEN: Do you see any characteristics on these particular gloves that help to determine--help you to determine whether or not the Defendant is wearing style no. 70263?

MR. RUBIN: On this particular photo there doesn't seem to be any decorative stitching on the hem or any stitching on the hem and there are three three-needlepoints and on the left hand you can see a little bit of the ridge on the tip of the finger, very fine ridge, continuous sewing. There is a slouchiness in the leather which is characteristic of that particular style. It is not as good a photo as some of the other photos or videos, but there is nothing here that leads me to believe that it would be another style than 70263.

MR. DARDEN: Directing your attention to 612, the first photograph to your left as you face the board, this slouchiness, to what to you tribute that to?

MR. RUBIN: Well, I think a lot of it has to do with the way you are holding your hand. When you move your fingers back a little bit the glove gets a little slouchy, and when you curve your hand you seem to tighten up on the glove, but it basically indicates that the gloves had been moved back and forth and you are going to get some of that slouchiness because every time you wear a pair of gloves they are going to stretch a little and compress a little, so when you move your hand back and forth you are going to get a little bit of that bagginess.

MR. DARDEN: So the more you wear them, the more they stretch?

MR. BLASIER: Objection, leading.

THE COURT: Sustained. Rephrase the question.

MR. DARDEN: Can you tell us whether or not gloves stretch, that is, the more you wear them?

MR. RUBIN: They will stretch somewhat, but these particular gloves do have memory. A lot of it comes back. It depends upon how the person holds their hand, but they do have a lot of stretch in them.

MR. DARDEN: Does it also depend on what the person does while wearing the gloves?

MR. RUBIN: Yes, somewhat.

MR. BLASIER: Objection, leading.

THE COURT: Overruled. The answer will stand.

MR. DARDEN: Now, let me ask you to retake the stand.

MR. RUBIN: (Witness complies.)

MR. DARDEN: Just so it is clear, when was it that you were sent copies of some of the videotape and some of the photographs you have seen here in court?

MR. RUBIN: I received the first set of photographs I believe it was July 3rd.

MR. DARDEN: And when was the first time that you saw the Guidera photographs, 612?

MR. RUBIN: I believe that the Guidera photograph arrived September 5th. They called me to notify me that they were sending another photo to me after I left here on the 31st.

MR. BLASIER: Objection, objection.

THE COURT: Sustained. Next question.

MR. DARDEN: Okay. So you received the Guidera photograph around September 5th, correct?

MR. RUBIN: Yes.

MR. DARDEN: Is there anything about the brown gloves that you have seen the Defendant wearing that would suggest to you that they are anything other than 70263?

MR. BLASIER: Object to the form of that question.

THE COURT: Vague. Rephrase the question.

MR. DARDEN: Are all the characteristics that you have observed in the brown gloves worn by the Defendant consistent with style 70263?

MR. BLASIER: Asked and answered.

THE COURT: Overruled.

MR. RUBIN: Yes.

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

THE COURT: Certainly.

MR. DARDEN: I am about done.

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

THE COURT: Counsel, let's take our recess at this point.

MR. DARDEN: Okay. Thank you.

THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the noon hour. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock. Let me see counsel without the court reporter, please. Mr. Rubin, you can step down. One o'clock.

(A conference was held at the bench, not reported.)

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

LOS ANGELES, CALIFORNIA; TUESDAY, SEPTEMBER 12, 1995 1:00 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. The Defendant is again present before the court with counsel, People are represented. The jury is not present. All right. Mr. Darden, are you ready to conclude your direct examination of Mr. Rubin?

MR. DARDEN: Yes, your Honor, I am.

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

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

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

THE JURY: Good afternoon.

THE COURT: Mr. Rubin, would you resume the witness stand, please.

Richard Rubin, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: All right. Let the record reflect that Mr. Richard Rubin is again on the witness stand undergoing direct examination by Mr. Darden. And, Mr. Darden, you may conclude with your direct examination.

MR. DARDEN: Thank you, your Honor, and I will. Good afternoon.

THE JURY: Good afternoon.

DIRECT EXAMINATION (RESUMED) BY MR. DARDEN

MR. DARDEN: Now, Mr. Rubin, I wanted to ask you some questions about the wear and tear, if any, on these particular gloves. If we assume--well, strike that. Now, there's been testimony in this case that Nicole Brown purchased two pairs of gloves on December 18, 1990.

MR. RUBIN: Yes.

MR. DARDEN: Okay. And I believe you offered some testimony with regard to the style numbers, Bloomingdales carried back in December 1990, when you were first here; is that correct?

MR. RUBIN: Thank you. Yes, I did.

MR. DARDEN: And they did carry this model, the 70263?

MR. RUBIN: Yes, they did.

MR. DARDEN: We've also shown you today photographs and video of brown gloves worn by the Defendant on January 6th, 1991, correct?

MR. RUBIN: Correct.

MR. DARDEN: And December 25, 1993.

MR. RUBIN: I don't think it was December 25th.

MR. DARDEN: I'm sorry. December 23rd, 1993.

MR. RUBIN: Correct.

MR. DARDEN: Okay. And that would be the Guidera--

MR. RUBIN: Yes.

MR. DARDEN: --photo shown here?

MR. RUBIN: Yes. That's correct.

MR. DARDEN: Where would you--well, strike that. Where would you first expect to see wear on those gloves, if any?

MR. BLASIER: Objection. Calls for speculation, no foundation.

THE COURT: Foundation.

MR. DARDEN: Well, you told us you manufactured these gloves?

MR. RUBIN: Yes, I did.

MR. DARDEN: You helped design these gloves?

MR. RUBIN: I designed this particular glove, yes.

MR. DARDEN: You also sold it?

MR. RUBIN: Yes, I did.

MR. DARDEN: You handled the marketing?

MR. RUBIN: Yes, I did.

MR. DARDEN: Did you attempt to assess the life and durability of the glove once it was sold into the general public?

MR. RUBIN: Life expectancy and wear and tear was the major concern of our company because it was our reputation, and with regard to this particular pair of gloves, the wear and tear would show up first in the lining.

MR. DARDEN: You wouldn't expect to see the wear and tear first on the outside leather portion of the glove?

MR. RUBIN: You would not.

MR. DARDEN: And you looked at the lining of the crime scene at Rockingham glove when you were here last; is that right?

MR. RUBIN: I've seen the linings many times.

MR. DARDEN: In fact, I think you removed the lining from those gloves, didn't you?

MR. RUBIN: Yes, I did.

MR. DARDEN: Okay. Did you note any wear or tear, any evidence of any wear or tear on the cashmere linings of the Rockingham and Bundy glove?

MR. RUBIN: In both articles, there actually is no excessive wear and tear whatsoever present.

MR. DARDEN: Okay. And what does that indicate to you in terms of how often those gloves were worn?

MR. RUBIN: They were not worn every day in the winter for year after year after year at all.

MR. DARDEN: And were these gloves sold $55 on sale at Bloomingdales during December of 1990?

MR. RUBIN: The original price was 50--

MR. BLASIER: Objection. No foundation.

THE COURT: Sustained.

MR. DARDEN: Well, you sold the gloves to Bloomingdales; is that right?

MR. RUBIN: Yes, I did.

MR. DARDEN: They were exclusive to Bloomingdales?

MR. RUBIN: Yes, they were.

MR. DARDEN: And did you discuss with Bloomingdales the price at which the gloves would be sold?

MR. BLASIER: Objection. Calls for hearsay.

THE COURT: Sustained. I think we've already had testimony from the people at Bloomingdales as to the manufacturer's suggested retail price, the sale price.

MR. DARDEN: Okay. Thank you, your Honor.

MR. DARDEN: And with regard to the black glove that you've seen, okay, the Stewart West photographs, the Romano photographs, you were shown photographs taken December 23, 1990 and in January, 1994; is that correct?

MR. RUBIN: I'm not sure of the exact dates of the photographs on the black gloves. I--

MR. DARDEN: Is it indicated that--is the date indicated, 12-25-93, on the West photos?

MR. RUBIN: It is.

MR. DARDEN: And on the Michael Romano photograph, is the date indicated to be January 15, 1994?

MR. RUBIN: Yes, it is.

MR. DARDEN: And on the Mark Krueger photograph, are the dates indicated there--

MR. BLASIER: Objection. Leading.

THE COURT: Overruled.

MR. DARDEN: --that December 29, 1990?

MR. RUBIN: Yes, it is.

MR. DARDEN: Where would you expect to see the wear and tear in that particular glove?

MR. BLASIER: Objection. No foundation.

THE COURT: Overruled.

MR. BLASIER: It's vague as to what--

MR. RUBIN: I really don't really see any--

THE COURT: Excuse me. Overruled. You can answer.

MR. RUBIN: Could he rephrase the question, your Honor, or can he restate the question, please?

MR. DARDEN: Where would you first expect to see the wear and tear in the black gloves?

MR. RUBIN: Initially the wear and tear would show up in the lining.

MR. DARDEN: Now, is there a certain machine that sews this Brossier stitch?

MR. RUBIN: It is a Brossier sewing machine that was made by the singer sewing machine corporation. To the best of my knowledge, the model is 46K30 and it was produced around World War II for the last time. So to my knowledge, there has been no Brossier sewing machine produced in the last 45 to 50 years.

MR. DARDEN: Okay. And you've told us that this particular type of stitching is rare in gloves, men's gloves?

MR. RUBIN: It's very rare.

MR. DARDEN: Okay. And how rare are these machines nowadays?

MR. BLASIER: Objection. No foundation.

THE COURT: Overruled.

MR. RUBIN: Currently, I was able to find out that Aris Philippines had 37 machines--

MR. BLASIER: Objection. Based on hearsay.

THE COURT: Overruled.

MR. RUBIN: --has 37 machines of which approximately 20 to 25 of them are operational, and of my personal knowledge, going back to 1990 of the 11,000 employees of Aris Philippines, only 10 people were qualified to sew that stitch on a glove.

MR. BLASIER: Objection. Nonresponsive.

THE COURT: Overruled.

MR. DARDEN: Thank you. Nothing further.

THE COURT: Mr. Blasier. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

CROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Good afternoon, Mr. Rubin.

MR. RUBIN: Mr. Blasier.

MR. BLASIER: Mr. Rubin, have you tried to be completely impartial in this case?

MR. RUBIN: Absolutely.

MR. BLASIER: Now, you haven't been currying favor with one side or the other?

MR. RUBIN: Absolutely not.

MR. BLASIER: You don't have any agenda here for one side or the other?

MR. RUBIN: I do not.

MR. BLASIER: You haven't tried to shade your opinion in any way to favor one side or the other?

MR. RUBIN: Absolutely not.

MR. BLASIER: Now, on July 3rd, you were sent pictures from--in fact, most all the pictures here, you were sent back on July 3rd before the Prosecution finished their case, correct?

MR. RUBIN: That is incorrect.

MR. BLASIER: You were sent pictures from Mr. Renken, from Mr. Krueger, Mr. Schott, Mr. West and Mr. Romano, correct?

MR. RUBIN: I believe that's correct.

MR. BLASIER: Okay. And you were told beforehand that you were going to be getting some pictures that the Prosecution wanted you to look at, correct?

MR. RUBIN: Someone left a message in my office that a package was forthcoming, yes.

MR. BLASIER: Had they shown you a videotape prior to that time?

MR. RUBIN: No, they had not.

MR. BLASIER: Had they told you there were videotapes?

MR. RUBIN: I don't recall the conversation regarding videotapes at that point in time.

MR. BLASIER: And you answered that letter before the Defense started calling witnesses, didn't you?

MR. DARDEN: Objection. Irrelevant.

THE COURT: Sustained. Sustained.

MR. BLASIER: You answered that letter on July 6th, didn't you?

MR. RUBIN: Yes, I did.

MR. BLASIER: Before July 12th--10th--I'm sorry. You FedExed that letter to the Prosecution?

MR. RUBIN: Yes, I did.

MR. BLASIER: FedEx generally takes one day?

MR. RUBIN: To the best of my knowledge.

MR. BLASIER: Now, in your letter to the Prosecution of July 6th, you told them at that time that the pictures from Renken, Krueger, Schott, West and Romano, that it was your opinion that those were the Aris leather light style, correct?

MR. RUBIN: I believe I did.

MR. BLASIER: You didn't equivocate on that, did you?

MR. RUBIN: I actually either in telephone conversation--I'm not a hundred percent knowledgeable of the letter because I haven't seen it, but I did ask them at least over the phone that I wanted to see enhanced blow-ups and I'd like to look at some of these things, you know, in the negative or on a small monitor.

MR. BLASIER: Did you indicate in your letter on all eight photos none of the detail that can be seen indicates that the gloves could be a style other than 70263?

MR. RUBIN: I did.

MR. BLASIER: You're indicating unequivocally that in your opinion, from those pictures that you had last July, it was an Aris glove, correct?

MR. RUBIN: That's not the case. What I meant by that statement categorically was that I did not see any features in any one of those photos that would indicate that it would be any other style that I had knowledge of. That's what I meant by that statement.

MR. BLASIER: Remember us asking you yesterday what you meant by that statement?

MR. RUBIN: Yes. That's exactly what I said.

MR. BLASIER: And you didn't indicate to us that what you meant by that was that it was your opinion back then that from those pictures, you could make an identification that those are Aris 70263?

MR. RUBIN: I felt I could, but in context, I wanted to see more detail.

MR. BLASIER: All right. Did you tell us yesterday that you had decided that what you meant by this sentence in here, that you decided back then that your expert opinion was that those were the same style glove?

MR. RUBIN: I was not a hundred percent sure at that point in time.

MR. BLASIER: Did you tell us yesterday that that's what you meant by that sentence?

MR. DARDEN: Objection, your Honor. This is vague.

THE COURT: Sustained. Rephrase the question.

MR. BLASIER: Did you tell us yesterday that what you meant by that sentence is what it says, that you could--that in your opinion, these were the Aris style gloves?

MR. DARDEN: Misstates the testimony.

MR. RUBIN: What I meant--

THE COURT: Excuse me. Overruled.

MR. RUBIN: What I meant by that statement categorically was that the features that I could see in the pictures, not one feature would lead me to a non 70263 Aris light style. That's what I meant by the statement.

MR. BLASIER: By the statement you made yesterday to us?

MR. RUBIN: Yes.

MR. BLASIER: Now, when you wrote that letter to the Prosecution back on July 6th, did you include as part of that letter--

MR. DARDEN: Objection. Hearsay.

THE COURT: Overruled.

MR. BLASIER: --"If you should have any questions, please feel free to contact me at anytime. Please thank everyone for their hospitality during my visit. Maybe I can make it to the victory party," exclamation point, exclamation point?

MR. RUBIN: Correct.

MR. BLASIER: Now, was this party being planned before the Defense started?

MR. RUBIN: This statement was made in jest, no differently than on the first day that I testified here, as I walked out, I wished Mr. Simpson and the crowd the best of luck. It meant nothing.

MR. BLASIER: Had the victory party been planned before the Defense started?

MR. RUBIN: Absolutely not.

MR. BLASIER: Were you expecting an invitation to it?

MR. RUBIN: No. I was never expecting an invitation.

MR. BLASIER: Do you consider yourself a member of the Prosecution team at that point?

MR. RUBIN: No, I do not.

MR. BLASIER: Also, did you indicate in that letter in a P.S., "At your convenience, could you obtain business cards from all the members of your staff as I want to make one, only one piece for my office as memorabilia of my experience. Please include Mr. Hodgman and Miss Clark"?

MR. RUBIN: Yes, I did.

MR. BLASIER: Now, you were planning to construct some sort of memorabilia for your office for your customers to see?

MR. RUBIN: I have probably 300 envelopes that have been sent to me around the country regarding this testimony. Most of them I haven't even opened yet, and I was planning on actually taking one article, putting some business cards in it and framing it and putting it in my office as a remembrance of my experience. That's all it was.

MR. BLASIER: Cards from the Prosecution?

MR. RUBIN: Yes.

MR. BLASIER: Now, Mr. Rubin, you were with Aris from what year to what year?

MR. RUBIN: I started selling Aris gloves in 1976. I left in 1990.

MR. BLASIER: So that was 14 years?

MR. RUBIN: A little bit longer.

MR. BLASIER: And you were primarily in sales and marketing, correct?

MR. RUBIN: No. I was actually part of the management team. I ran the men's glove division, the wholesale division and had some other responsibilities.

MR. BLASIER: Now, you said you actually manufactured the gloves yourself I think on direct. Did you mean that?

MR. RUBIN: Not physically.

MR. BLASIER: Were you part of the manufacturing process where you get in there, work the machinery and see how it worked?

MR. RUBIN: I spend approximately 300 days in the Philippines during my career there.

MR. BLASIER: Now, you have been completely out of the glove business since the middle of 1990, haven't you?

MR. RUBIN: That's correct.

MR. BLASIER: And would you agree that your primary experience with Aris was in sales and marketing?

MR. RUBIN: That was the primary function of everybody at Aris Isotoner.

MR. BLASIER: You weren't there running the plant on a day-to-day business, were you?

MR. RUBIN: I was not responsible for the day-to-day operations of Aris Philippines.

MR. BLASIER: Now, have you ever been asked to testify as an expert in any other case?

MR. RUBIN: Never.

MR. BLASIER: You've never been disqualified as an expert?

MR. RUBIN: Never.

MR. BLASIER: Now, would you agree that there are many, many people in the glove business that have far more experience with gloves than you?

MR. RUBIN: I would not agree with that.

MR. DARDEN: Objection. Objection.

THE COURT: Overruled.

MR. BLASIER: You know Mr. Richard Zuckerware?

MR. RUBIN: Yes, I do. I know him personally.

MR. BLASIER: Do you think you have more experience than him?

MR. RUBIN: With regard to men's gloves?

MR. BLASIER: In regard to gloves.

MR. RUBIN: I would say that in the overall glove industry, Mr. Zuckerware is one of maybe four or five people that has tremendous experience. As far as men's gloves in sales, marketing, design and production, I feel that my experience regarding Aris product is very excessive as far as his knowledge, and in the overall production, sales, marketing of men's gloves, I feel that my knowledge is excessive than his.

MR. BLASIER: Gloves in general?

MR. RUBIN: No. Men's gloves.

MR. BLASIER: How many years experience does Mr. Zuckerware have, do you know?

MR. DARDEN: Objection. Hearsay.

THE COURT: Overruled.

MR. RUBIN: Probably--I don't want to date the gentleman, but I would say that 35 years' experience.

MR. BLASIER: And by the way, do you have any other glove experience other--

THE COURT: Excuse me, counsel. Spell his name for the court reporter, please.

MR. BLASIER: I'm sorry. Z-U-C-K-E-R-W-A-R-E I believe.

THE COURT: Thank you.

MR. BLASIER: Do you know Mr. Joe Valusi?

MR. RUBIN: I do not.

MR. BLASIER: Do you know who he is?

MR. RUBIN: I do not.

MR. BLASIER: Now, do you have any other glove experience other than the 14 years with Aris?

MR. RUBIN: Can you be more specific regarding glove experience? As far as from a manufacturing point confined to Aris or to other outside facilities? What do you mean by this?

MR. BLASIER: Let me rephrase that. Do you have any experience at all with respect to other facilities besides Aris? Have you ever worked for a glove company other than Aris?

MR. RUBIN: No. But I have worked with many outside sources of glove manufacturing outside of the controlled and owned operations of Aris.

MR. BLASIER: Now, you say "Work with." You mean, attend conventions with, talk in terms of sales, that sort of thing?

MR. RUBIN: No. I mean actually going to their factories, developing product, planning production, designing new styles, taking customers to certain facilities. Very wide scope range.

MR. BLASIER: What other companies have you designed styles of gloves for?

MR. RUBIN: Well, specifically in the casual end of the business and some dress styles, a company called palace industries which has operations in--did have operations in Thailand, still does, has operations in china, now in Vietnam and also Taiwan, and then I also had experience in working with the Hungarian government in approximately seven different factories throughout Hungary. I've worked in Czechoslovakia. I've also bought and visited factories in Taiwan and Korea and actually was part of the team that set up a factory in India.

MR. BLASIER: Now, this is part of your employment with Aris, correct?

MR. RUBIN: Yes.

MR. BLASIER: It's not separate employment?

MR. RUBIN: No.

MR. BLASIER: You've never worked for another glove company, have you?

MR. RUBIN: No, I have not.

MR. BLASIER: Now, one of the parts of your testimony here is that the Brossier stitching that you've described that Aris uses is, "Unique" is the word that you use. Did you mean "Unique" to mean only one of a kind?

MR. RUBIN: It is not one of a kind. These machines were produced from approximately the early 1900's up until World War II and I'm sure there's machines that exist all over the country. I've just not sure where.

MR. BLASIER: How many gloves are manufactured in the world a year roughly?

MR. RUBIN: In today's times?

MR. BLASIER: Yes.

MR. RUBIN: I really don't have any idea.

MR. BLASIER: How about when you were in the business?

MR. RUBIN: On a worldwide basis, I really don't know. I did know what we manufactured and we had estimates of what other manufacturers in the United States sold.

MR. BLASIER: Give us your best estimate.

MR. RUBIN: In men's gloves, my best estimate in 1990 were, there were approximately six and a half to seven million pair out there.

MR. BLASIER: And that's not counting any foreign producers?

MR. RUBIN: Excuse me. All of these gloves were produced outside the United States.

MR. BLASIER: Okay.

MR. RUBIN: But they were for sale here in the United States.

MR. BLASIER: Okay. How about gloves for sale throughout the world? Do you have any idea how much more that would be?

MR. DARDEN: Objection. Irrelevant.

THE COURT: Overruled.

MR. RUBIN: I really have no way of judging that number.

MR. BLASIER: Presumably a lot more than the six and a half or seven million?

MR. RUBIN: I would assume so.

MR. BLASIER: Now, would you agree that brown is probably the most common color for gloves?

MR. RUBIN: No.

MR. BLASIER: Men's gloves?

MR. RUBIN: No.

MR. BLASIER: What's the most common color?

MR. RUBIN: Black.

MR. BLASIER: Now, would you agree that the vast majority of men's gloves have three lines on the back? They're called backing, aren't they?

MR. RUBIN: I never heard that phrase.

MR. BLASIER: Silking.

MR. RUBIN: That's better.

MR. BLASIER: Okay. Vast majority of men's gloves have those three lines on the back, don't they?

MR. RUBIN: Three decorative points of some configuration, yes.

MR. BLASIER: Now, you indicated that one of the reasons that Aris used that particular stitch was to separate those Aris gloves from the run of the mill gloves that you might find in target or k-mart or other large retail outlets. Is that fair?

MR. RUBIN: That really wasn't the basis for it at all.

MR. BLASIER: Well, I think you said that it was to distinguish that glove from the less expensive gloves.

MR. RUBIN: In general, the combination of the sewing machine used the point configuration, the blind hem and the weight of the leather and the weight of the lining was what was put together as a package to create an exclusive product. But it wasn't just the one element.

MR. BLASIER: It was for a high-end market, wasn't it?

MR. RUBIN: The $50 and over market is very--very small.

MR. BLASIER: The high-end market, wasn't it?

MR. RUBIN: Yes.

MR. BLASIER: Now, there are a lot of exclusive stores throughout the world, in New York, all over the place that sell high-end leather goods like gloves, correct?

MR. RUBIN: I don't know how many stores would carry high-end leather goods including gloves.

MR. BLASIER: Okay. So you don't have any information on that?

MR. RUBIN: No, I do not.

MR. BLASIER: There are other more expensive high-end gloves out there besides Aris, correct?

MR. RUBIN: Absolutely.

MR. BLASIER: Now, you made some effort to try and find out what other manufacturers in the world might have used Brossier stitching and produced gloves without stitching, correct?

MR. RUBIN: Yes, I did.

MR. BLASIER: And how many different companies did you check with?

MR. RUBIN: I only checked with two.

MR. BLASIER: There are a lot more companies than that in the world, aren't there?

MR. RUBIN: In the world? Yes.

MR. BLASIER: Now, did you ever check with any glove companies in Europe or Italy?

MR. RUBIN: No, I did not.

MR. BLASIER: In Europe?

MR. RUBIN: No, I did not.

MR. BLASIER: Other glove companies other than the two that you've told us about?

MR. RUBIN: No, I did not.

MR. BLASIER: And what are those two companies?

MR. RUBIN: Fownes gloves, F-O-W-N-E-S, and Mr. Zuckerware's company, grand-o gloves.

MR. BLASIER: And Grand-O does produce a glove with Brossier stitching, doesn't it?

MR. RUBIN: They told me that they had produced a glove with Brossier stitching a couple of years ago in small quantity.

MR. BLASIER: And they had it in stock?

MR. RUBIN: They didn't mention that to me.

MR. BLASIER: Okay. So the two companies--the only two companies that you checked with, one of them does this stitch, correct?

MR. RUBIN: One out of two.

MR. BLASIER: Now, if--do you have any idea how many other glove manufacturers there are in the world?

MR. RUBIN: I have no idea.

MR. BLASIER: If--would you agree that there's over a hundred other glove manufacturers in various parts in the world that--go ahead.

MR. RUBIN: If you define glove manufacturers as anybody who is manufacturing quantity and distributing it on their own, a person who has six employees in a small shop technically is a glove manufacturer. So I'd say in places like Italy, Hungary and certain other eastern European countries, there could be hundreds of manufacturers. They would relatively be quite small as far as production.

MR. BLASIER: How many of those have a Brossier machine?

MR. RUBIN: I have no idea.

MR. BLASIER: Now, you know that--you've seen this stitch on an Italian glove some years ago, didn't you?

MR. RUBIN: Yes, I did.

MR. BLASIER: From a small company?

MR. RUBIN: I don't know what company it was from.

MR. BLASIER: Have you made any effort to contact singer to find out other machines there are throughout the world?

MR. RUBIN: No, I have not.

MR. BLASIER: Are there any other machines that can make a stitch that looks like this stitch?

MR. RUBIN: This stitch is a very fine whip stitch, and the machine that I'm familiar with, it does make a stitch that's similar. That's the Ozan sewing machine. The one I'm thinking of is made by a company called treasure.

MR. BLASIER: And can that make a stitch that looks like this?

MR. RUBIN: Similar, but not the same.

MR. BLASIER: Different in what way?

MR. RUBIN: The Ozan sewing machine normally runs at about 10 to 12 stitches per minute. The Brossier sewing machine runs at twice that, and the difference is in the bite. When it's a whip stitch, most of those whip stitch type machines in the bite, you get a high, low effect on the Ozan stitching machine and you get a larger seam than you would on a continuous seam and fine seam on the Brossier. But to a layman, the stitch is--stitches would appear to be somewhat similar.

MR. BLASIER: Can the Ozan machine do a 22-inch--22 stitch per inch stitch?

MR. RUBIN: I'm not a technician. I'm not sure if it's capable of making a stitch that tight or not. I've never seen Aris production or some other production with Ozan do more than 12 stitches an inch on the Ozan machine.

MR. BLASIER: Did you make any effort - incidentally, Ozan machines are fairly common, aren't they?

MR. RUBIN: Within Aris, the largest amount of gloves that were out on the marketplace were Ozan.

MR. BLASIER: Other companies have Ozan stitching machines, don't they?

MR. RUBIN: I believe they do.

MR. BLASIER: It's a common machine, isn't it?

MR. RUBIN: It's a common machine, readily available.

MR. BLASIER: Are you familiar with the Bonis Golden series never-stop machines?

MR. RUBIN: I've heard the term Bonis, but I'm not familiar with the machine.

MR. BLASIER: Let me show you a flyer for that machine.

MR. DARDEN: Objection. He's not familiar with it.

THE COURT: I'm sorry?

MR. DARDEN: Objection. What he's relying on, he's not familiar with.

THE COURT: Overruled.

MR. DARDEN: Can I see the flyer then?

(Brief pause.)

MR. DARDEN: It's dated 1995. Objection.

THE COURT: Overruled.

MR. BLASIER: Would you take a look at that, tell me if you're familiar with that machine?

MR. DARDEN: 352, your Honor. No authentication.

THE COURT: Overruled. The question is, is he familiar with the machine.

MR. RUBIN: Since I never really looked at the numbers on the machines that were at Aris Philippines for style--I've seen similar machines to this with the wheel. I'm very familiar with that. It's very common. But I don't know for a fact that it was a Bonis BG12 machine.

MR. BLASIER: All right. So the machines you've seen, they can do 25 stitches an inch, can't they?

MR. RUBIN: I've never seen them do 25 stitches to the inch.

MR. BLASIER: Can they do 25 stitches an inch?

MR. RUBIN: I could not state that to this court if I had not done it myself. I've never--

MR. BLASIER: Can that machine do 25 stitches an inch?

MR. RUBIN: According to the flyer, this will--

MR. DARDEN: Objection. Irrelevant.

THE COURT: Sustained.

MR. BLASIER: Your Honor, may I have that marked, please?

THE COURT: Yes. Mrs. Robertson.

THE CLERK: 1372.

THE COURT: 1372.

(Deft's 1372 for id = flyer)

MR. BLASIER: So I take it then other than calling two companies and asking them specifically about the Brossier machine, you made no effort to find out what kind of other machines might make a stitch that fine?

MR. RUBIN: I have not.

MR. BLASIER: Now, the two companies that you contacted, did you just ask them about the Brossier stitching?

MR. RUBIN: Well, in regard to Fownes, I asked them if they had any of the equipment. They told me no, and that was pretty much the end of the conversation. And I do have friends that work there. So we may have discussed other things that I'm not aware of. In regard to my conversation with Mr. Zuckerware, a technician within their company was in the room and mentioned the style number or the--

MR. BLASIER: Objection. Nonresponsive.

THE COURT: All right. Ask your next question.

MR. RUBIN: You know, I don't remember what I spoke with them about.

THE COURT: Hold on.

MR. BLASIER: You didn't ask anybody about the three lines, the silking on the back, did you, in terms of how other people may or may not use that?

MR. RUBIN: I did not discuss anything other than the Brossier.

MR. BLASIER: So you've made no effort to find out how common or rare the silking is, and that's the three points on the back?

MR. RUBIN: I think I earlier stated that it's very common.

MR. BLASIER: Now, you were asked some questions about glove wear and I think you indicated that they wear out from the inside first.

MR. RUBIN: This particular style.

MR. BLASIER: Okay. And is that because of the cashmere lining?

MR. RUBIN: That's because the cashmere lining was underweight by design and cashmere is a little bit more fragile than most materials that we use for linings, and only using one thread of cashmere versus two, we were concerned about wear and tear on the lining, and that's why in this particular style, the wear and tear would first show up on the lining.

MR. BLASIER: Now, you live in new jersey I believe?

MR. RUBIN: Yes.

MR. BLASIER: Is that very close to New York?

MR. RUBIN: Yes.

MR. BLASIER: It gets real cold and wet in New York in the winter, doesn't it?

MR. RUBIN: Unfortunately, in the last couple of years, it hasn't. But on occasion, it does.

MR. BLASIER: It snows there, rains there?

MR. RUBIN: On occasion.

MR. BLASIER: People wear gloves there, don't they?

MR. RUBIN: Yes, they do.

MR. BLASIER: It's a much more intemperate climate than southern California, correct?

MR. RUBIN: Yes.

MR. BLASIER: Would you agree that people that live in New York in the winter wear gloves more often than people in California?

MR. RUBIN: I would agree with you.

MR. BLASIER: The more you wear gloves, the more you would expect to have indications of wear, correct?

MR. RUBIN: That's correct.

MR. BLASIER: On the inside, on the lining?

MR. RUBIN: On this particular style.

MR. BLASIER: Now, you indicated to me yesterday, did you not, that you were surprised at how little wear there was on the inside of the Bundy and Rockingham gloves?

MR. RUBIN: Yes, I was, considering the condition of the gloves on the outside.

MR. BLASIER: And is it not your opinion or isn't it your opinion that that is probably because whoever wore those gloves on a regular basis had relatively small hands?

MR. DARDEN: Objection. No foundation.

THE COURT: Overruled.

MR. DARDEN: Can I be heard?

MR. RUBIN: That's not exactly what I said. What I said to you out in the hallway was that the person that wore the gloves either wore them on brief periods of time or they fit that person very comfortably. They were not the wrong size.

MR. BLASIER: You didn't make a comment to me about someone that didn't have large hands wore those gloves because of almost no wear on the lining?

MR. RUBIN: No. I stated to you that the person that wore those gloves fit into these gloves without any strain on the lining which would cause excessive wear. I spoke to you more about what would cause excessive wear versus what would cause less wear.

MR. BLASIER: What did you tell me about large hands?

MR. DARDEN: Your Honor, this is hearsay, a 1054 issue here.

MR. RUBIN: Regarding what?

THE COURT: Overruled.

MR. RUBIN: Regarding what?

MR. BLASIER: Regarding the lack of wear in the lining of the evidence gloves and your statement that that's an indication--one of the inferences you can draw from that is that they were owned by somebody with smaller hands, that didn't stretch them out.

MR. RUBIN: The person that--I stated to you that the person that wore the gloves did not have larger hands than the glove size itself.

MR. BLASIER: All right. Was the point you were trying to make, that the person with larger hands is going to fill out the gloves and there's going to be more wear on the lining than someone whose hands are smaller?

MR. RUBIN: Yes.

MR. BLASIER: Now, there were indications of wear on the outside of the gloves, correct?

MR. RUBIN: On the right hand, very much so. On the left hand, some.

MR. BLASIER: And you testified to that before. Do you recall that?

MR. RUBIN: Yes, I did.

MR. BLASIER: So your experience is that gloves should wear out from the inside out, correct?

MR. RUBIN: There's no way to determine the exact time frame of how long a pair of gloves would last. But it's a personal thing, the way a person uses the gloves, the way the gloves fit. You could wear them one or two times, get caught in a snow storm and change a tire and the gloves are pretty messed up. There's no way of telling.

MR. BLASIER: You're speculating now, aren't you?

MR. RUBIN: Yes.

MR. BLASIER: Isn't it fair that one reasonable inference from the fact that these gloves are more worn on the outside than the inside is that the person who owned them had small hands that didn't fill them out and cause the inside to wear?

MR. DARDEN: Objection. Calls for speculation.

THE COURT: Overruled.

MR. RUBIN: I couldn't confirm that statement.

MR. BLASIER: You can't make that inference at all from what you've told us?

MR. RUBIN: No, I can't.

MR. BLASIER: Mr. Rubin, you--when did you get here by the way? Two nights ago?

MR. RUBIN: I arrived here Sunday at noon.

MR. BLASIER: And from the time that you arrived here until you were in court yesterday, some of that time was spent with Prosecutors looking at pictures and videos again?

MR. RUBIN: Yes.

MR. BLASIER: And while you were in the process of doing that, you noticed on one picture that there appeared to be a defect on one of the brown gloves in the pictures, didn't you?

MR. RUBIN: That's not correct.

MR. BLASIER: Did you not see what you thought might be a defect?

MR. RUBIN: No. What I stated to Mr. Darden was, I thought I saw a shadow, that I would like to look at the gloves in person to see if I could detect a defect.

MR. BLASIER: All right. And you saw a shadow that you thought might be a defect, correct?

MR. RUBIN: Not a defect. Just a marking.

MR. BLASIER: Well, you told him it might be a defect, right?

MR. RUBIN: I think that's his terminology, not mine.

MR. BLASIER: Did you ever use the word "Defect"?

MR. RUBIN: I'm not a hundred--I'm not sure.

MR. BLASIER: You might have, right?

MR. RUBIN: I could have.

MR. BLASIER: That's what you came down here to look at the gloves for, to see if you could find a defect, correct?

MR. RUBIN: I wanted to see if there was any marking in a specific part of the glove that corresponded to a shadow in one of the videos. I wasn't sure of whether it was lighting, whether it was a mark. Just wanted to look at it.

MR. BLASIER: To see if there was a defect on the evidence gloves that corresponded to what you saw in the picture?

MR. RUBIN: Correct.

MR. BLASIER: Wasn't there--or there was no such defect on the evidence gloves, was there?

MR. RUBIN: I didn't see anything that I could definitely reidentify in any photo.

MR. BLASIER: Now, which picture were you looking at where you thought you saw shadow, defect or whatever you want to call it?

MR. RUBIN: I don't think that picture was actually used here. It was one of the photos that was thrown out. It was a right hand.

MR. BLASIER: You're referring to one of the gloves the Prosecution decided not to use?

MR. RUBIN: I believe that in an effort to save time, they just started to arbitrarily knock out different photographers and photos.

MR. BLASIER: So the one where you thought you saw a defect they didn't show to the jury?

MR. DARDEN: Objection. Calls for speculation.

THE COURT: Sustained. Sustained.

MR. BLASIER: All right. Now, you've indicated from many of these pictures that it's your opinion that you can identify the three points on the back as being the same type of three points that is on the Aris 70263, correct?

MR. RUBIN: That's correct.

MR. BLASIER: Now, you've indicated that's a common backing, correct?

MR. RUBIN: It's very common, yes.

MR. BLASIER: Are there other backings that can be mistaken for that?

MR. DARDEN: Calls for speculation.

THE COURT: Overruled.

MR. RUBIN: I'm not quite clear as to what you mean by that.

MR. BLASIER: Well, let me show you a sheet.

MR. DARDEN: There's an objection, your Honor. Can we approach?

THE COURT: Overruled.

MR. BLASIER: Mr. Rubin, take a look at that.

THE COURT: Why don't you ask some foundational questions on this.

MR. BLASIER: Yes.

MR. BLASIER: Do you recognize that as a document that shows various different kinds of stitching that can be used on gloves?

MR. RUBIN: Yes, I do.

MR. BLASIER: Are you familiar with all of those?

MR. RUBIN: I recognize many of them.

MR. BLASIER: Your Honor, can I have that marked and put on the elmo, please?

THE COURT: You need a little more foundation than that.

MR. BLASIER: Are all those--they're actually--there's different kinds of backing stitching, correct, the three points we're talking about?

MR. RUBIN: Yes. These are different configurations of what I would call three decorative points on the back of the glove.

MR. BLASIER: And you recognize all of those; do you not?

MR. RUBIN: I actually don't recognize all of these.

MR. BLASIER: Okay. So there may be some out there that, even though you have a lot of experience with gloves, that you're not familiar with?

MR. RUBIN: There's some that are out there but not necessarily used.

MR. BLASIER: But my question was--

MR. RUBIN: Could be.

MR. BLASIER: Some out there that you don't know?

MR. RUBIN: Could be.

MR. BLASIER: And the top part of that diagram indicates different kinds of stitching for fingers, right?

MR. RUBIN: They do, but they're poorly represented in these stitches.

MR. BLASIER: Okay. But you recognize each one of those--I mean, they're described underneath them; are they not?

MR. RUBIN: Yes.

MR. BLASIER: They are all stitches you're familiar with?

MR. RUBIN: I'm familiar with all of those.

MR. BLASIER: Your Honor, may I have that marked and put on the elmo, please?

THE COURT: It's 1373. Mrs. Robertson, 1373?

THE CLERK: Yes.

(Deft's 1373 for id = sample stitching)

MR. BLASIER: Mr. Rubin, can you see those sample stitches? Those are the silkings we've been talking about?

MR. RUBIN: Yes. Three points on the back.

MR. BLASIER: Which of those, if it's up there, is on the Aris 70263?

MR. RUBIN: These stitches are actually so poor and not really indicative of what they say compared to what's a glove. If you want me to pull out a glove to show you--like at the bottom right, it says four-needle stitching. If you want me to pull out a glove and show you what four-needle stitching looks like--it doesn't look like this. I can't tell from this.

MR. BLASIER: You can't tell from those stitches which one is on the Aris?

MR. RUBIN: The way the draw machine works, there are five positions. There are five needles. You can configure this to do things in different format. What's on the back of 70263 is needle no. 1, 2 and 3 with thread without cord. I don't know where it is on here. It's a blur.

MR. BLASIER: Your Honor, could I put 612-B on the elmo, please?

THE COURT: Yes.

MR. BLASIER: Mr. Rubin, do you recall identifying this picture? This is the Guidera picture.

MR. RUBIN: Yes.

MR. BLASIER: And identifying the backing on the glove?

MR. RUBIN: Yes, I did.

MR. BLASIER: Can we back it out, make it a little clearer, please?

MR. BLASIER: Your testimony, that you can tell that backing was made with a particular configuration of three needles?

MR. RUBIN: It appears to have a ridge in the middle--the reason I came up with that is, it appears to have a ridge or a high, low in the middle of each point, and that's what gave me indication that it was three needles. There has to be a needle on the right, a needle on the left, and because it has a ridge look, I think there's a needle in the middle, and that's what gave me that conclusion.

MR. BLASIER: You see that as two lower lines and a ridge in the middle?

MR. DARDEN: Objection, your Honor. He didn't look at it on the elmo.

THE COURT: Overruled.

MR. RUBIN: You have to remember, I've had the opportunity to look under this photo with a magnifying glass--

MR. BLASIER: Mr. Rubin, we're talking about these pictures that the Prosecution offered. Are you telling me from that picture that you can see three lines of stitching?

MR. DARDEN: Objection, your Honor.

MR. RUBIN: From this picture, I can't see anything.

THE COURT: Overruled.

MR. BLASIER: How about from the picture itself?

MR. RUBIN: From this picture, I see a ridge in the middle of the point, which indicates the third needle.

(Discussion held off the record between Defense counsel.)

MR. BLASIER: Now, just so we're clear, you're saying that in that picture--or are you saying that you can identify for each of those three lines in the backing, that each line has three needle stitches in it?

MR. RUBIN: Left, right and center, yes.

MR. BLASIER: Now, is that something you can see in that picture?

MR. RUBIN: In my opinion, I can see it.

MR. BLASIER: Do you accept how other experts might differ with that?

MR. DARDEN: Objection. That's argumentative.

THE COURT: Sustained.

MR. BLASIER: Now, in one of these pictures, in the Renken picture from `91, you identified water spots on the gloves?

MR. RUBIN: That's correct.

MR. BLASIER: There are no corresponding water spots on the evidence glove that correspond to the water spots on those gloves, correct?

MR. RUBIN: I'd have to re-look at it again, but I don't think that I could even make any judgment regarding to those particular water spots as to how they relate to a glove today.

MR. BLASIER: Well--all right. I asked you yesterday, did I not, that if you got water spots on a glove like that, they might stay there, right?

MR. RUBIN: For a brief period of time.

MR. BLASIER: Did you say "Brief period of time"?

MR. RUBIN: Yes. I said to you that as the gloves were worn again and stretched out, they would dissipate.

MR. BLASIER: You didn't tell me that sometimes they would, sometimes they would stay?

MR. RUBIN: To refresh your memory, Mr. Blasier, I also pointed out that if someone with these Aris lights gloves which were truly naked leather were to wipe their brow and get oil on their finger, the oil would stay on the glove for a brief period of time, but gradually as the person wore the gloves or moved their hands back and forth, the oil would dissipate.

MR. BLASIER: You didn't tell me that water spots like that--you told me that they might dissipate, but they also might stay there, didn't you?

MR. RUBIN: I don't remember saying that.

MR. BLASIER: Your Honor, could we have frame 4748?

(Brief pause.)

MR. BLASIER: I'm sorry. I think I may have given you the wrong number. 4582. I'm sorry.

THE COURT: Mr. Harris, do you need Mr. Fairtlough's assistance on finding that?

MR. HARRIS: Well, they're not in any order, your Honor.

THE COURT: Mr. Ormond, let's take this down until we find the right frame. Thank you. All right.

MR. BLASIER: Remember looking at this frame before, Mr. Rubin?

MR. RUBIN: Yes, I do.

MR. BLASIER: Now, I believe on your direct testimony, you testified that from this picture, you can identify the Brossier stitching on the fingers. Did I--am I correct in that?

MR. RUBIN: I don't believe I would have used this one for the Brossier stitching.

MR. BLASIER: Okay. But you would use this one for the three lines on the back?

MR. RUBIN: I believe this one was used for the palm vent on the left hand was the primary purpose.

MR. BLASIER: Okay. Now, would you agree that the picture on the monitor is a lot better than the big screen?

MR. RUBIN: Surely better from here, but not as good as the monitor in the back.

MR. BLASIER: Do you see looking at the monitor what appears to be a bulge in the palm of that--Mr. Simpson's left hand under the glove?

MR. RUBIN: I don't detect a bulge.

MR. BLASIER: You cannot see a raised area, appears to be a raised area right in the palm between the thumb and the finger?

MR. RUBIN: There's a shadowy effect. It could be slightly raised. I don't know--I really don't know what it means.

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

MR. RUBIN: Yes. I'm very familiar with it.

MR. BLASIER: And people use heat packs to put in the palms of their gloves to keep their hands warm, don't they?

MR. RUBIN: I'm familiar with it.

MR. BLASIER: And that's going to cause a glove to stretch, isn't it?

MR. RUBIN: It could. I'm not familiar with what size heat pack we're talking about.

MR. BLASIER: Okay.

MR. BLASIER: You can take that down, please.

(Brief pause.)

MR. BLASIER: Now, I take it, Mr. Rubin, you would agree that you can exclude the gloves in the West pictures as being the evidence gloves in this case?

MR. RUBIN: Due to the color, yes.

MR. BLASIER: And you can exclude the Romano gloves, correct?

MR. RUBIN: They appear to be black also.

MR. BLASIER: And you can exclude the Krueger pictures; can you not?

MR. RUBIN: Same thing. Yes.

MR. BLASIER: Now, I think your testimony was that you can read reading on whatever this is in the picture?

MR. DARDEN: Objection. Misstates his testimony.

THE COURT: You can answer the question.

MR. RUBIN: I clearly stated that I could not read the writing on that tag.

MR. BLASIER: All right. But you can see printing on it?

MR. RUBIN: I can see that there is something on it. It appears to be printing. The tag, what I stated was, is in the shape of the Aris Ross patch label tag. It appears to be beige in color. It appears to have some kind of burgundy printing on it, which is the same as what was used on all Aris tags.

MR. BLASIER: Now, looking at the Guidera picture again--can you see it from there--you indicated on direct, did you not, that you thought you could identify the Brossier stitching on the fingers in that picture; did you not?

MR. RUBIN: On the left hand on the top ridge of the finger is a very fine ridge, and that would be the only spot that I could detect it from that glove.

MR. BLASIER: Can you come and show me where you're pointing or where you're indicating?

MR. RUBIN: Top left (Indicating).

THE COURT: Is that the index finger?

MR. RUBIN: Forefinger.

THE COURT: Forefinger.

MR. BLASIER: Your Honor, could we have one of your little arrows or--may I put a stick-um on this? I'll put it right above here (Indicating).

MR. BLASIER: You're talking about the first finger where you see a ridge that you can identify as the Brossier stitch?

MR. RUBIN: At--no. At the end of the finger, there's a very fine ridge, fine line which appears to be similar to a Brossier stitch.

MR. BLASIER: Well--

MR. RUBIN: And that's why I'm saying it's a Brossier stitch.

MR. BLASIER: So from my arrow actually looking at the end of the finger itself?

MR. RUBIN: No. I would put the arrow over here toward this edge (Indicating).

MR. BLASIER: I mean--yeah. The end of the finger?

MR. RUBIN: End of the finger.

MR. BLASIER: Okay. And can you see a ridge there that enables you to identify that that's 22 stitches per inch?

MR. RUBIN: I cannot see 22 stitches in that one specific spot, no.

MR. BLASIER: But you've identified this as the Brossier stitch; have you not?

MR. RUBIN: It's similar to what a Brossier stitch looks like, yes.

MR. BLASIER: Now, you indicated before that you were able--in your mind, you were able to make a positive identification of that style glove from that picture alone; did you not?

MR. RUBIN: I didn't say that. What I said was, the elements that I could see were part of the element that make up style 70263; and, once again, there are no elements that lead me anywhere else.

MR. BLASIER: Is it your testimony that a Brossier stitch is the only stitch that would look like that in that picture, in the Guidera picture?

MR. RUBIN: Any other whip stitch would look similar. But someone like myself or someone who made a lot of Brossier sewn gloves or was very cognizant of what a Brossier sewn stitch looked like, it would look slightly different.

MR. BLASIER: Is it accurate that you cannot offer any opinion at all as to the shades of the colors of the gloves in the pictures, the brown gloves vis-à-vis the evidence gloves?

MR. RUBIN: I can make no attempt whatsoever to determine that the photographs as far as colorations, due to the fact that in my own experience, in making packaging as well as all the advertising that we did with various stores, that we never really were able to get the color of the gloves correctly in print, packaging, et cetera--I wouldn't make any conclusion regarding color in these photos.

MR. BLASIER: Now, in this particular style, Aris actually had two different kinds of brown, correct?

MR. RUBIN: That's correct.

MR. BLASIER: And one was called a brown, the other was called a mink?

MR. RUBIN: That's correct.

MR. BLASIER: Were there any other terms used for those?

MR. RUBIN: Mink or medium brown.

MR. BLASIER: The--what color are the evidence gloves?

MR. RUBIN: Brown.

MR. BLASIER: As opposed to medium brown?

MR. RUBIN: Or mink, yes.

MR. BLASIER: And how about the--did you see any pictures--well, let me ask you this. Can you tell whether the pictures that you saw that you testified about are brown or mink?

MR. RUBIN: They're all within the brown family, but no two pictures are alike from any of the photographers.

MR. BLASIER: So from the brown pictures in the photographs, you can't say that they are the same shade or the same--necessarily the same color as the evidence gloves; is that correct?

MR. RUBIN: To my best recollection, the color mink was so reddish and lighter in color that it would not be--in any of the photos would they be mink. These photos all reflect brown gloves that I've been shown.

MR. BLASIER: Okay. So none of the photos that you've seen in your opinion could be mink?

MR. RUBIN: That's correct.

MR. BLASIER: Do you remember when you gave a statement to the Prosecutors on August 29th?

MR. RUBIN: Over the phone?

MR. BLASIER: Yeah.

MR. RUBIN: That's correct.

MR. BLASIER: Did you know that was being taped?

MR. RUBIN: Yes.

MR. BLASIER: Did you know that they made a transcript of it?

MR. RUBIN: Yes.

MR. BLASIER: Have you seen that transcript?

MR. RUBIN: I have not seen the transcript.

MR. BLASIER: Do you remember when they were asking you that you had the--one of the Renken pictures, that's the umbrella pictures?

MR. RUBIN: Yeah.

MR. BLASIER: Brown glove?

MR. RUBIN: Right.

MR. BLASIER: They ask you what color it was? Remember what you said?

MR. RUBIN: I--that color is the closest to mink of what mink would look like.

MR. BLASIER: Do you remember what you said?

MR. RUBIN: I don't remember a hundred percent.

MR. BLASIER: Do you remember saying, "I'm not quite sure whether they are really what was called mink or dark brown, but they are definitely a shade of brown"?

MR. RUBIN: I'll stand by that.

MR. BLASIER: So when you were looking at these pictures on August 31st, you weren't sure whether they were mink or brown, were you?

MR. DARDEN: Objection. "These pictures"--

MR. BLASIER: The Renken pictures.

THE COURT: Sustained. Rephrase the question.

MR. BLASIER: When you were looking at the Renken pictures, you had them on your end of the phone, you were talking to the Prosecution on their end of the phone, you told them you couldn't tell whether that was brown or mink, correct?

MR. RUBIN: That's what I said.

MR. BLASIER: Now you're coming here and your testimony--you're now saying can't be mink; is that right?

MR. RUBIN: Well, the reason I'm saying that is because I actually called the photographer myself to ask him about the coloration, and he more or less led me toward the indication that his color was slight--could be slightly off.

MR. BLASIER: You thought they might have been mink when you saw them before. It's the same picture, isn't it?

MR. RUBIN: Could be.

MR. BLASIER: It is the same picture, isn't it?

MR. RUBIN: I believe it's the same or a copy.

MR. BLASIER: You testified on direct here today that in your opinion, the gloves in these pictures are a snug fit on Mr. Simpson?

MR. RUBIN: That's correct.

MR. BLASIER: I ask you to look again at the Guidera picture. Would you agree that the leather seems to be bunched up around the fingers?

MR. RUBIN: On the right hand in that particular picture, his hand is arched slightly backward, and that's the effect you would get on a leather glove. On the left hand, it appears to be more like a normal snug fit.

MR. BLASIER: Would you agree that between the Guidera picture and the Renken picture three years earlier, the gloves appear to be bigger in the Guidera picture on Mr. Simpson's hands?

MR. RUBIN: I think I would be speculating.

MR. BLASIER: You're not willing to make any kind of assessment from looking at the photographs on that point?

MR. RUBIN: It appears that in the Renken picture, Mr. Simpson has his hand a little farther around the microphone, his knuckles are a little bit over, little more to the left of the photos. It would be difficult to say that I could tell the difference between the exact fit between the two photos.

MR. BLASIER: Isn't it your opinion that the gloves in the pictures that you've been shown in this case are either a regular extra large that fit Mr. Simpson or an oversized extra large?

MR. RUBIN: That's correct.

MR. BLASIER: So from the pictures, they appear to be possibly too big for him?

MR. RUBIN: Yes.

MR. BLASIER: There are no pictures where the gloves appear to be too small for him. Would you agree with that?

MR. RUBIN: The only thing that you see in the pictures regarding small is on the shortness where he wears the gloves. But I don't see anything in the finger area that indicates they're too small or around the back of the palm.

(Brief pause.)

MR. BLASIER: Your Honor, could we have the Bloomingdales receipt? Do you still have it?

THE COURT: All right. Mr. Blasier, what exhibit is that?

MR. BLASIER: This is 372-B. Actually, let me use 372--I'm trying to figure out which one's better. Let me try 372-B.

THE COURT: Mr. Blasier, 2:30.

MR. BLASIER: Okay.

MR. BLASIER: MR. BLASIER: Now, Mr. Rubin, you've seen this receipt before; have you not?

MR. RUBIN: Yes, I have.

MR. BLASIER: And can you tell from that receipt, let's assume they were gloves, what color they are?

MR. RUBIN: No, I cannot.

MR. BLASIER: Can you tell what size they are?

MR. RUBIN: No, I cannot.

MR. BLASIER: There were I think you testified a thousand dozen or 12,000 pairs of gloves that were ordered by Bloomingdales for this particular season, correct?

MR. RUBIN: That's correct.

MR. BLASIER: All that--would that have the same style number?

MR. RUBIN: That's correct.

MR. BLASIER: And you had been producing those gloves with those same characteristics for 10 years?

MR. RUBIN: Not 10 years.

MR. BLASIER: From 19--sorry. As of 90', it had been eight years, correct?

MR. RUBIN: Yes.

MR. BLASIER: And then they produced them for several years after that?

MR. RUBIN: I believe about a year and a half.

MR. BLASIER: Now, I think you indicated when you testified before that they started slow and then increased to a thousand dozen a year for a period of time. Is it fair to say that a rough estimate of the number of these gloves sold to Bloomingdales during that period of time was 40-, 50,000 pair?

MR. RUBIN: No. No. I would say, if I had to speculate, that the quantity was more in the range of around 2500 dozen for an eight-year period with the bulk of it being in the last two.

MR. BLASIER: And 2500 dozen is--

MR. RUBIN: 30,000 pair.

MR. BLASIER: 30,000 pair. And 10,000 pair--12,000 pair in the last year?

MR. RUBIN: That was what was originally contracted for. I'm not sure if they took them all in for sale.

MR. BLASIER: So are we talking 40-, 50,000 pair maybe?

MR. DARDEN: Objection. That misstates the testimony.

THE COURT: Overruled.

MR. RUBIN: I think it's closer to 30-, 35,000 pair totally from the time they started buying them until the time I left in 1990.

MR. BLASIER: And how many different colors are there?

MR. RUBIN: I believe we made five.

MR. BLASIER: And how many different sizes?

MR. RUBIN: Four.

MR. BLASIER: So would it be fair to say that there were 20 different combinations of that style number that you could get?

MR. RUBIN: There were 20 SKU's.

MR. BLASIER: So 20 different possibilities that someone could purchase if they bought those gloves?

MR. RUBIN: Size and color.

MR. BLASIER: Only one of which would be extra large brown?

MR. RUBIN: That's correct.

MR. BLASIER: The other 19 would be something different than the evidence gloves, correct?

MR. RUBIN: That's correct.

MR. BLASIER: And you had no way of knowing whether these are receipts for that one out of 20 or something in the 19 out of 20, correct?

MR. RUBIN: I do not.

MR. BLASIER: Now, this receipt doesn't even have the style number, 70263, does it?

MR. RUBIN: No, it does not.

MR. BLASIER: So if you accept that the receipt is accurate, these aren't for Aris Isotoner leather lights, are they?

MR. RUBIN: I think that this has been covered in previous testimony in--

MR. BLASIER: I'll give you a chance to explain it, but the question is, if you look at the receipt and look at the numbers, that's something other than Aris leather lights, correct?

MR. DARDEN: Misleading the jury. Objection. Misstates the testimony.

THE COURT: Overruled. The jury sat through this.

MR. RUBIN: That particular style--

THE COURT: Hold on. Hold on. Ask another question.

MR. BLASIER: You can't testify whether these are Aris lights from this receipt, can you?

MR. RUBIN: I actually can, but no one else except the buyer and myself could because the receipt states the manufacturer, the fact that it's leather and the price, and the only thing sold at Bloomingdales that year at that price happened to be the Aris light style.

MR. BLASIER: How do you know that?

MR. RUBIN: Upon review with the actual buyer of all the styles that were sold to Bloomingdales by Aris that year, all the gloves retailed at different price points.

MR. BLASIER: Did you hear Miss Vemich's testimony about whether there were other gloves on sale for that price?

MR. RUBIN: Yes. After I--after she testified though.

MR. BLASIER: Would you agree that she would have more information about that than you would?

MR. RUBIN: Not necessarily in regard--no, I would not.

MR. BLASIER: In order to assume that that receipt is for Aris leather lights, you have to assume that some mistake was made, correct?

MR. RUBIN: That's correct.

MR. BLASIER: And you have to assume that what should have been on there was something other than what was put on there?

MR. RUBIN: That's correct.

MR. BLASIER: You cannot say, can you, Mr. Rubin, that whatever this receipt is for is the evidence gloves in this case, correct?

MR. RUBIN: No, I cannot.

MR. BLASIER: You cannot say that whatever is in that receipt is in any of these pictures, can you?

MR. RUBIN: No, I cannot.

MR. BLASIER: You have no information about the habits of Nicole Brown Simpson with respect to buying gloves for other people, do you?

MR. RUBIN: Absolutely not.

MR. BLASIER: You cannot say, can you, Mr. Rubin, that the gloves in the pictures that you've seen are pictures of the gloves in evidence, can you?

MR. RUBIN: I can only state that they are the same style and color. I cannot state that they are the same pair.

MR. BLASIER: Now, I believe you identified the lining in the Romano gloves--

THE COURT: Romano photos.

MR. BLASIER: I'm sorry?

THE COURT: Romano photos.

MR. BLASIER: --Romano photo, you've identified that lining as cashmere?

MR. RUBIN: Yes, I did.

MR. BLASIER: Doesn't 100 percent wool look very similar to that?

MR. RUBIN: No, it doesn't.

MR. BLASIER: How about a combination of wool and cashmere?

MR. RUBIN: It would look slightly lighter.

MR. BLASIER: Slightly lighter in color?

MR. RUBIN: Yes.

MR. BLASIER: So you're stating unequivocally this is cashmere because of the lighting in this photograph?

MR. RUBIN: It appears to be a darker shade of brown than I'm used to seeing in a combination wool and cashmere blend, and for sure, it is not a wool blend.

MR. BLASIER: So now you're giving us an opinion based on the shades in the photograph--

MR. RUBIN: I'm only comparing the shade to the shell of the glove. If we're going on the basis that the glove is black, I'm comparing the shading of the lining to the glove.

MR. BLASIER: Could it be a synthetic acrylic?

MR. RUBIN: It--I have not seen acrylic that looks like that, but anything is possible.

MR. BLASIER: You have made no effort other than contacting two glove companies to find out if there are other gloves out there that have the same characteristics as these Aris leather lights, have you?

MR. DARDEN: Asked and answered, your Honor.

THE COURT: Overruled.

MR. RUBIN: I have not contacted--I don't know--let me just say this. I do not know of any other people to call other than the two largest competitors to Aris.

MR. BLASIER: You don't know how to find all of these hundred or so other glove companies around the world?

MR. RUBIN: If you--do you want to pay me to do that? I'll be glad to do it.

MR. BLASIER: You know where they are, don't you, Mr. Rubin?

MR. RUBIN: I really do not know where they are. I would go to Milan, I would go to Naples and I would start to find out where all those companies are, but I'm not going to do that on my own.

MR. BLASIER: And you made no effort to do that, did you?

MR. RUBIN: No, I did not.

MR. BLASIER: No further questions.

THE COURT: Mr. Darden.

MR. DARDEN: Thank you, your Honor. May I put 372-A on the elmo, your Honor?

REDIRECT EXAMINATION BY MR. DARDEN

MR. DARDEN: Let's focus on the right-hand side of the--looking at your monitor, sir, do you see where it indicates "Muffler," indicates that a muffler was purchased at Bloomingdales on December 18, 1990?

MR. RUBIN: Yes.

MR. DARDEN: At the same time that Nicole Brown purchased two pairs of gloves?

MR. RUBIN: Yes.

MR. BLASIER: I'm going to object. That misstates the exhibit. I don't see "Muffler" on it.

MR. DARDEN: All the way to the right.

THE COURT: It's on there.

MR. BLASIER: It's on the receipt?

THE COURT: Hold on. Hold on. There was testimony to that. Next question.

MR. DARDEN: Okay. You understand that is an exhibit in this case?

MR. RUBIN: Yes.

MR. DARDEN: Take that down, please.

MR. DARDEN: Let's go to frame--let me ask you to look at that photograph.

MR. RUBIN: Yes.

MR. DARDEN: Do you understand this was a photograph from January 6th or 5th, 1992?

MR. RUBIN: It's a video.

MR. DARDEN: Okay.

THE COURT: That's frame number 25862.

MR. DARDEN: Is the Defendant wearing a muffler in this photograph?

MR. RUBIN: Yes, he is.

MR. DARDEN: That's the thing around his neck?

MR. RUBIN: Yes, it is.

MR. DARDEN: Does it appear to be brown?

MR. RUBIN: Yes, it is.

MR. DARDEN: And the gloves he's wearing, do they appear to be brown?

MR. RUBIN: Yes, they appear to be.

MR. DARDEN: You don't know whether or not Nicole Brown purchased the Defendant a muffler and two pairs of gloves on December 18, 1990 at Bloomingdales, do you?

MR. BLASIER: Objection. Speculation.

THE COURT: Sustained.

MR. DARDEN: When you first saw the photographs that you were shown and those photographs that were sent to you, you looked at those photographs under a magnifying glass; is that correct?

MR. RUBIN: Yes, I did.

MR. DARDEN: You wanted to be certain of your opinion?

MR. BLASIER: Objection. Leading.

THE COURT: Sustained. Rephrase the question.

MR. DARDEN: Did you want to be sure that you were correct when you gave an opinion?

MR. RUBIN: Yes, I did.

MR. DARDEN: And toward that end, you called a couple of manufacturers, glove manufacturers?

MR. RUBIN: Yes, I did.

MR. DARDEN: You contacted one of the photographers, a Mr. Renken?

MR. RUBIN: Yes, I did.

MR. DARDEN: And why did you contact Mr. Renken?

MR. RUBIN: I basically just wanted to find out how accurate his color was. I think it varied because the gloves were like a medium brown. They weren't as light as what mink was. But then again, if it was really mink in the picture and his color was dark, they could have been mink. But basically he indicated that he could be absolutely off. So I just ignored it plus or minus.

MR. BLASIER: Objection. Hearsay.

THE COURT: Overruled.

MR. DARDEN: And this is information you wanted to have so you could make sure that you provided this jury with the most accurate testimony that you could?

MR. BLASIER: Objection.

THE COURT: Sustained.

MR. DARDEN: Were you interested in providing this jury with the most accurate testimony that you could?

MR. RUBIN: Absolutely.

MR. DARDEN: And the most honest testimony that you could?

MR. RUBIN: Yes.

MR. DARDEN: Would you agree that the best test to determine whether or not the gloves in the photographs are mink or brown is to have the jury take a look at those photographs and compare them to the crime scene gloves and the new gloves tried on by the Defendant?

MR. BLASIER: Objection. No foundation.

THE COURT: Overruled.

MR. RUBIN: At this point in time, the crime scene gloves are almost unrecognizable as far as color, size, texture. It would be very difficult to compare them. However, newer gloves or less used gloves, I think it would be important that the jury see the stitching up close on the gloves.

MR. DARDEN: Let me show you what's been marked 401, one of the newer gloves that the Defendant tried on. What color is that glove?

MR. RUBIN: Brown.

MR. DARDEN: Can we have the jury take a look at 401 as well as one of the Renken photographs to compare the color?

THE COURT: Which Renken photograph?

MR. DARDEN: Which one would you prefer?

MR. DARDEN: This would be 606-B.

THE COURT: All right. And you want the jury to look at the photograph and compare the brown glove?

MR. DARDEN: Yes.

THE COURT: 401.

MR. DARDEN: Yes.

THE COURT: All right. Hand it to juror no. 1, please.

MR. DARDEN: Before I do that, the crime scene gloves, do they appear to be brown also?

MR. RUBIN: Yes, they are.

THE COURT: All right. After we complete the view and examination by the jury, we'll take a brief recess. Mr. Darden.

MR. DARDEN: I'm sorry?

THE COURT: As soon as the jury completes their examination, comparison of the photograph and 401, we'll take our mid-afternoon recess.

MR. DARDEN: Okay.

MS. CLARK: Your Honor, while we are doing that, Mr. Fairtlough has a correct label. May we--thank you.

MR. DARDEN: May I confer?

THE COURT: Why don't you do that at the break.

(People's exhibits 606-B and 401 were examined by the jurors.)

THE COURT: All right. Mr. Darden, would you collect those items from Deputy Long, please. No. I'm just asking you to collect the items from Deputy Long. All right. Ladies and gentlemen, we're going to take our mid-afternoon recess. Remember all my admonitions to you. Mr. Rubin, you may step down. You're ordered to come back in 15 minutes.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Ready to conclude with Mr. Rubin?

MR. DARDEN: Yes, your Honor. I only have a few more minutes of redirect. I'm going to ask however that the jury be allowed to review exhibit 612.

THE COURT: Haven't we done that once before?

MR. DARDEN: With 401 while--at the same time Mr. Rubin displays 164-A, one of the crime scene photographs so the jury can see, as I'm sure the court can see, that we're talking about three gloves that are very, very similar.

THE COURT: All right.

MR. BLASIER: I think each of those exhibits have been shown to them. They've heard the testimony. I would object to further demonstration.

THE COURT: Well, the issue of color has been clearly brought up though. All right. Let's have the jurors, Deputy Magnera.

(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 we've been rejoined by all the members of our jury panel. Mr. Richard Rubin is again on the witness stand undergoing redirect examination by Mr. Darden. And, counsel, if you recollect, we need to conclude before the jury today at 4:00 o'clock due to some doctors' and dentist appointments.

MS. CLARK: I only have five or six more minutes, your Honor, if that long.

THE COURT: All right. Mr. Darden, you may proceed.

MR. DARDEN: Thank you.

MR. DARDEN: Mr. Rubin, you testified regarding the issue or on the issue of whether or not you saw any defects or anything unusual in the gloves shown in the photographs; is that correct?

MR. RUBIN: That's correct.

MR. DARDEN: Did you see anything unusual on the gloves shown in the photographs?

MR. RUBIN: No, I did not.

MR. DARDEN: You saw a shadow you say?

MR. RUBIN: On a video.

MR. DARDEN: Okay. Was there any defect at all in any of the brown gloves shown in the photographs shown to the jury that you saw?

MR. RUBIN: Nothing that I could see.

MR. DARDEN: And was there any defect that you saw in the Rockingham glove?

MR. RUBIN: Nothing that I could see on the back.

MR. DARDEN: How about the Bundy glove?

MR. RUBIN: Nothing.

MR. DARDEN: Okay. So there's no defect that you saw on the Rockingham or Bundy gloves shown in the photographs here in court today?

MR. RUBIN: No. Nothing.

MR. DARDEN: But you were checking to see?

MR. RUBIN: I was looking, yes.

MR. DARDEN: You were being careful?

MR. RUBIN: I tried to be as careful as possible.

MR. DARDEN: Do you have anything to gain by testifying in this case?

MR. RUBIN: I really have no reason to be here.

MR. DARDEN: You spent most of the lunch hour yesterday with Mr. Blasier, didn't you?

MR. RUBIN: Yes, I did.

MR. DARDEN: And did you speak with him after the jury left and after court adjourned yesterday?

MR. RUBIN: Yes, I did.

MR. DARDEN: And were you intending to speak with him again last night?

MR. RUBIN: Yes, I was.

MR. DARDEN: And toward that end, did you do anything to make yourself available to Mr. Blasier so that you could talk to him?

MR. RUBIN: I got back to the room as early as possible because I was expecting a call.

MR. DARDEN: From Mr. Blasier?

MR. RUBIN: Yes.

MR. DARDEN: Did the call come?

MR. RUBIN: No, it did not.

MR. DARDEN: How long did you wait in your room?

MR. RUBIN: I stayed there all night.

MR. DARDEN: Have you spoken to the press or to any tabloid?

MR. RUBIN: I've chosen really not to do anything in that manner whatsoever. I'm really just here to tell about the gloves in respect to all the details of the gloves, and that's really all I can bring to the table here.

MR. DARDEN: Okay. And the Renken photograph that we just passed along to the jury, that was the photograph that--when you were concerned--where you were concerned about the mink or brown coloring; is that correct?

MR. BLASIER: Objection. Asked and answered.

THE COURT: Overruled.

MR. RUBIN: Since day one, you're well-aware that I worked with you regarding my testimony here and I--

MR. BLASIER: Objection. Nonresponsive.

THE COURT: Sustained. Ask another question. The answer was nonresponsive.

MR. DARDEN: When you saw photographs back in July, did you ask to see other photographs or additional photographs?

MR. RUBIN: Yes.

MR. DARDEN: Did you ask to see additional videotapes?

MR. RUBIN: Yes, I did.

MR. DARDEN: Did you ever ask to see other photographs with more clarity?

MR. RUBIN: Yes, I did.

MR. DARDEN: And why did you ask to see those things?

MR. RUBIN: I wanted to be as accurate as possible in any statement that I might make before this court.

MR. DARDEN: Now, you are from the state of New York; is that right?

MR. RUBIN: I live in the New York area. That's correct.

MR. DARDEN: And when you said that the crime scene gloves seemed to have been worn infrequently, what did you mean by that exactly?

MR. RUBIN: I was somewhat surprised that with the wear and tear on the Rockingham glove, that the lining seemed so close in similarity to the Bundy glove when I first saw them for the first time because the Rockingham glove was very distorted and somewhat mutilated. I was actually somewhat taken by surprise when we did open up the glove and found out that it was a pair, and the only thing that connected the two was the same wear and tear in the lining, because there is a big difference currently between the Rockingham glove and the Bundy glove.

MR. DARDEN: Now, you don't know what testing procedures, what tests were applied to the Rockingham and Bundy glove, do you?

MR. RUBIN: I do not.

MR. DARDEN: You don't know whether or not samples were cut out of the gloves?

MR. BLASIER: Objection. No foundation.

THE COURT: Sustained.

MR. DARDEN: At any event, you don't know what, if anything, any criminalist may have done to these gloves; is that right?

MR. BLASIER: Objection. No foundation.

THE COURT: Overruled.

MR. RUBIN: I do not. My observations were just part of the linings that I could see clearly, certain areas of the lining on both gloves.

MR. DARDEN: Now, when you testified that the brown gloves shown in the photographs in the video were Aris style no. 70263, were you forming those opinions based solely on a single characteristic of the gloves that you saw?

MR. RUBIN: No.

MR. BLASIER: Objection. Asked and answered.

THE COURT: Overruled.

MR. DARDEN: Was it based on two characteristics?

MR. RUBIN: Many characteristics.

MR. DARDEN: And was it based on all the photographs and all the video that you saw?

MR. BLASIER: Objection. Leading.

THE COURT: Overruled.

MR. RUBIN: My complete analysis of these photos was a collective effort. As we well know, there were many that I rejected because I couldn't see enough, and some of them were included in evidence here today, which was sufficient enough for me to state that these photos represent the characteristics that are part of style 70263.

MR. DARDEN: Mr. Blasier asked you about heat packs.

MR. RUBIN: Yes, he did.

MR. DARDEN: Would the use of a heat pack cause the glove to shrink or expand, that is assuming they were dry?

MR. RUBIN: Technically, the worst thing that can affect the size of a glove is a combination of water and heat; generally water first, heat second. If the gloves were wet at any point in time and a heat pack--

MR. BLASIER: Objection. No foundation.

THE COURT: Sustained. Foundation.

MR. DARDEN: Okay. Well, what would happen if there was a heat pack in the glove and the glove was wet?

THE COURT: Foundation, counsel.

MR. DARDEN: You've already testified about shrinkage and what causes gloves to shrink; is that correct?

MR. BLASIER: Objection. Beyond the scope.

THE COURT: Overruled.

MR. RUBIN: Yes, I have.

MR. DARDEN: You testified to the effect or impact water would have on gloves; is that correct?

MR. RUBIN: That's correct.

MR. DARDEN: And we see that in the January 6th, 1991 photograph and in the photograph we just showed the jury the brown gloves are wet; is that right?

MR. RUBIN: Slightly wet.

MR. DARDEN: Let's assume for a moment there was a heat pack in the glove, one of those gloves on January 6th, 1991 while the glove was wet. What effect would that have on the glove in terms of shrinkage?

MR. RUBIN: Depending upon the amount of liquid and the location of the heat pack and the actual temperature of the heat pack, it could speed up some slight shrinkage.

MR. DARDEN: And you can't tell us what effect blood will have on a glove in terms of whether it will cause it to shrink, and if so, how much, right?

MR. BLASIER: Objection.

THE COURT: Sustained.

MR. DARDEN: Do you know what effect blood will have on these gloves in terms of shrinkage?

THE COURT: Sustained.

MR. BLASIER: Objection.

THE COURT: Sustained.

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

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

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

MR. DARDEN: Miss Clark has asked me to ask you when football season ends. Do you know?

MR. RUBIN: I'm very familiar with the football season since we advertise during it.

MR. DARDEN: It ends around late January, doesn't it?

MR. RUBIN: Starts the middle of September, goes through the end of January.

MR. DARDEN: Okay. Now, when we passed around that Bill Renken photograph, did you want the jury to--

MR. BLASIER: Objection.

THE COURT: Sustained. Not an appropriate question.

MR. RUBIN: I observed--

THE COURT: Hold on. Hold on. Not an appropriate question.

MR. DARDEN: Well, the photograph that was passed around, did you select that photograph?

MR. RUBIN: Yes, I did.

MR. DARDEN: Let me show you the photograph that was taken by Debra Guidera, exhibit number 612, as well as the glove the Defendant tried on, exhibit 401. How do they compare in color?

MR. RUBIN: This particular photograph and this particular glove are extremely close in actual color.

MR. DARDEN: Okay. And showing you what has been marked as 164-A, the glove found at Rockingham, the glove found behind the Defendant's home, are both of the gloves in your presence and in front of you as well as the gloves shown on the Defendant's hand in these photographs, are they all brown?

MR. RUBIN: Yes, they are.

MR. DARDEN: Do they appear to be mink at all, that is any of the gloves as well as the gloves shown in the photograph?

MR. RUBIN: No. These three gloves are categorically brown.

MR. DARDEN: Now, the glove was exclusive to Bloomingdales, correct?

MR. RUBIN: That's correct.

MR. DARDEN: And there's no Bloomingdales east of--west of Chicago; is that right?

THE COURT: I think that's been asked already.

MR. BLASIER: I object.

MR. DARDEN: You don't know how the 70263 got here from back east?

MR. BLASIER: Objection.

THE COURT: Calls for speculation. Yes. Sustained.

MR. DARDEN: Your Honor, I have nothing further. I would ask, however, that the jury be allowed to take a look at the Guidera photograph as well as the crime scene glove for color comparison.

THE COURT: My concern though is still the--how do you propose we do that?

MR. DARDEN: There is a--

MR. RUBIN: Put all three in the bag.

THE COURT: Well, no.

MR. COCHRAN: Your Honor, can we approach for a moment?

THE COURT: Miss Clark--I'm sorry. Mr. Darden, let's--loan me the elmo gizmo. All right. Lay them on the elmo gizmo there. Lay them out, please. All right. And would you hand that, please, to juror no. 1.

MR. DARDEN: This is photograph 612, your Honor.

THE COURT: All right.

MR. DARDEN: There's no adhesive on the gloves. So--

(The three exhibits were examined by the jury.)

THE COURT: All right. Mr. Darden, would you collect the exhibits from Deputy Long.

MR. DARDEN: That's all I have, your Honor.

THE COURT: Mr. Blasier, do you have any recross?

MR. BLASIER: I do, your Honor.

RECROSS-EXAMINATION BY MR. BLASIER

MR. BLASIER: Mr. Rubin, it's your testimony that in your opinion, the evidence glove is the same shade as this other glove?

MR. RUBIN: Very close.

MR. BLASIER: And you can tell that much about the color of the evidence glove?

MR. RUBIN: The back of the evidence glove I was using as a reference.

MR. BLASIER: You feel you can tell that much about the color of the evidence glove?

MR. RUBIN: I can only tell you what I see.

MR. BLASIER: You remember when Mr. Darden just started his redirect before the break, you remember stating, "At this point in time, the crime scene gloves are almost unrecognizable as far as color"?

MR. RUBIN: That's correct. That's what I said.

MR. BLASIER: Now, right before the break, we passed to the jury the Renken picture and 401. Do you recall that?

MR. RUBIN: Yes, I do.

MR. BLASIER: And is your opinion that the shade of gloves in 401 is the same as the Renken picture?

MR. RUBIN: From this photo? The--

MR. BLASIER: Yes.

MR. RUBIN: --the actual shade is a little washed out because of the flash, but I can detect a little bit more of the color by seeing the difference in the raindrops and whatever. But it's not exactly as--it doesn't appear in the picture to be as dark as this in the picture.

MR. BLASIER: This is picture no. 4758 that you were shown; is it not? It's written on the back.

MR. RUBIN: That's correct.

MR. BLASIER: On August 31st, when you were interviewed by the Prosecution, which picture was it that you thought might be mink?

MR. RUBIN: I believe it was 4758 and 4748.

MR. BLASIER: Same picture, right?

MR. RUBIN: Yes.

MR. BLASIER: Heat packs. As I understand your testimony, you think that if you have a heat pack inside the palm of your glove, that would cause the glove to shrink if it was wet?

MR. RUBIN: I'm not qualified or knowledgeable enough about heat packs to tell the effect. If there is "X" amount of excessive heat and the gloves were wet, the two worst elements that would make a glove shrink are being wet and then having excessive heat. And what I mean by excessive heat is anything above normal 68 to 72 degrees.

MR. BLASIER: The gloves are on your hand and your heat pack is in the palm and it causes the gloves to dry before they're taken off. They're not going to shrink while they're on your hand with the heat pack in there, are they?

MR. DARDEN: Objection. No foundation.

MR. BLASIER: Are they?

MR. BLASIER: I'm sorry.

THE COURT: You can answer the question.

MR. RUBIN: I wouldn't think so.

MR. BLASIER: So wouldn't you agree that the heat pack is going to cause the gloves to dry quicker before they're taken off so that they're not likely to shrink when they're taken off?

MR. DARDEN: Objection. No foundation.

THE COURT: Can you answer the question?

MR. RUBIN: It's possible.

MR. BLASIER: Now, the Renken pictures and the Guidera pictures are three football seasons apart, aren't they?

MR. RUBIN: I believe they are.

MR. BLASIER: And there's no sign of any shrinkage at all. In fact, the Guidera picture, the gloves look bigger, don't they?

MR. DARDEN: Objection. That calls for speculation.

THE COURT: Overruled.

MR. DARDEN: Compound.

THE COURT: It is. Rephrase the question. Hold on. Rephrase the question.

MR. BLASIER: The Guidera gloves at least from the picture look bigger than the Renken gloves, don't they?

MR. RUBIN: It's very difficult for me to establish the exact size of the gloves in the Guidera picture. I've seen many Renken pictures. I have a better feeling, and I also have seen video during the same game of the Renken pictures. So I have a much better grasp on that particular date and time.

MR. BLASIER: Now, you've testified that you've been the most accurate and the most honest that you can?

MR. RUBIN: I've done my best.

MR. BLASIER: Now, in your search for accuracy and completeness, have you tried to be as complete as possible?

MR. DARDEN: Objection. That's argumentative.

THE COURT: Sustained. Rephrase the question. It's vague.

MR. BLASIER: After you called the second glove company and found out that they had this equipment, you stopped looking, didn't you?

MR. DARDEN: Asked and answered, Judge.

THE COURT: Sustained. Sustained. It's already been asked.

MR. BLASIER: Were you concerned that if you looked any further, you might not be invited to the victory party?

MR. RUBIN: That's ridiculous.

MR. DARDEN: You know, this is--

MR. BLASIER: No further questions.

THE COURT: Anything else, Mr. Darden?

MR. BLASIER: Subject to recall.

THE COURT: Well, let me see counsel over at sidebar with the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: We're over at the sidebar. Mr. Darden, my recollection is that the NBC tape you still haven't seen from which game was it? The Bengals game?

MR. DARDEN: Indianapolis Colts.

THE COURT: Guidera videotape. Are you planning on recalling Rubin after you see that tape?

MR. DARDEN: In all honesty, no.

THE COURT: Is that it?

MR. DARDEN: That's it unless I see something in the Indianapolis Colts game that I find so persuasive that I would want to bring him out.

THE COURT: This is logically the end of glove 2?

MR. DARDEN: Yes.

MS. CLARK: Well--

MR. COCHRAN: Except he wanted to reserve excusing him.

THE COURT: I understand.

MR. BLASIER: If they--

THE COURT: But our difficulty being, I didn't know if the Prosecution was going to offer anything more with the new videotapes.

MS. CLARK: Let me make it clear.

MR. COCHRAN: One person, Judge.

THE COURT: I'm sorry.

MR. DARDEN: Let me make it clear.

MR. COCHRAN: Sounds just like her.

MR. DARDEN: You know, we're concerned about--my concern is this. If the Indianapolis Colts tape shows to be a necessary tape, if I come in and lay a foundation for NBC to play it, then I'm going to want to play it. My only concern is this. We might need Rubin back for foundational reasons. But I don't expect that that's going to be a problem. Could be. So I don't want to give the impression that there's no way we are going to call him back.

THE COURT: Let me ask you this, Mr. Blasier. As to what's been presented so far, do you feel you've completed cross-examination?

MR. BLASIER: If they're not going to present the video, he's subject to recall, but we're not going to bring him back.

MR. DARDEN: I haven't said whether I'm going to put it on or not. I haven't seen it.

THE COURT: I understand. So both sides understand, Mr. Rubin may still be recalled if something turns up on the Indianapolis Colts video. Okay. I just wanted to make it clear that since we don't have the tape, we are not going to talk to Rubin about it today, I am going to let the guy go. But I'm sure if we pick up the phone and call him, tell him to come back, he'll come back.

MS. CLARK: Let me ask you for guidance on this. If we get the tape and want to show it, I believe we'll get it with a 1560 affidavit. I'd like to save time and just show the tape without having to recall Rubin.

THE COURT: Well, it depends.

MR. DARDEN: That's what I said.

MR. COCHRAN: How can we answer that? I'm not answering nothing until I see the tape.

MS. CLARK: I understand. I'm telling the court where I am going with this.

THE COURT: I'm just seeing where we are at this point. There's a possibility one side or the other may want to call Rubin in light of what the tape shows. That's so we're all clear.

MR. COCHRAN: Where do we go from here so we know on Sims? Did we get a ruling on that?

THE COURT: I'm about to. I said I'll get to it when I get to look at the stuff.

MR. COCHRAN: They're leaving at 4:00 anyway.

THE COURT: I think I'm going to kick them loose at this point.

MR. COCHRAN: We have some other motions to talk about.

THE COURT: All right.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. All right. Ladies and gentlemen, we've completed Mr. Rubin's testimony. Mr. Rubin, you may step down. Thank you very much, sir. All right. Ladies and gentlemen, at this point, I have--with regard to the next witness, I have a couple things I need to resolve with the lawyers. As I mentioned to you, we have a couple of juror activities that need to be attended to this afternoon. So I'm going--as far as you're concerned, we're going to quit at this point. As far as the lawyers are concerned though, we'll be in session probably until about 6:00 clock tonight. So we'll be here working. Remember all my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case--using a lot of notebooks there--don't let anybody communicate with you with regard to the case. What did I forget? Oh, don't conduct any deliberations until the matter has been submitted to you. All right. As far as the jury is concerned then, we'll stand in recess. We'll stand in recess for about 10 minutes, and then we'll reconvene on some of the other legal issues. All right. Thank you, counsel.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. After we have finished with Mr. Rubin--and I take it that concludes the Prosecution's representation regarding glove evidence; is that correct?

MS. CLARK: With the provision we indicated at side bar, your Honor.

THE COURT: Okay. And it is your intent then to move on to Mr. Sims and you wish to present evidence regarding the RFLP testing and the Bronco, correct?

MS. CLARK: Yes, your Honor.

THE COURT: Where do you intend on going after that?

MS. CLARK: After that we were going to present, and we have points and authorities, Hank will be coming down, to present the videotape of Thano Peratis pursuant to evidence code section 1202.

THE COURT: All right. We will have to have a hearing on that.

MS. CLARK: I think it won't take long. And the video itself, your Honor, is I think fifteen minutes.

THE COURT: Okay.

MS. CLARK: And we need to be heard on the Bronco fiber evidence.

THE COURT: All right.

MS. CLARK: And Don Dutton.

THE COURT: I'm sorry.

MS. CLARK: And Don Dutton.

THE COURT: All right. Dutton, I take it the Defense is going to present their P's and A's Friday?

MR. COCHRAN: Yes. I indicated Dean Uelmen was returning to the Bay area, presenting his p and A's on Friday, and we thought we would argue that on Monday.

MS. CLARK: No, your Honor. That is not acceptable with the People because we expect to rest before then.

MR. COCHRAN: If they are true to that, I will ask Dean Uelmen to fly down here Friday afternoon, but as you said, they are being overly optimistic. The court gave them until Friday. If they are moving along. If the court excludes any evidence in this case, we will move it up, but he needed until Friday. Besides that, we haven't rested, at any rate. We will have some witnesses for them by Thursday, anyway.

THE COURT: All right. All right. So we have the hearing on Dunton--is it Dutton or Dunton?

MS. CLARK: Dutton.

THE COURT: Okay. All right. I have not concluded my examination of the RFLP issue. I had all the exhibits that were referenced brought up. I have them in my chambers now, and I have been busy all day, so I haven't had a chance to look at them yet. I mean, I have looked at the exhibits. I have not reviewed the Gerdes' testimony that was referred to, so I'm not prepared to rule on that at this exact time. If we break early before six o'clock today, then hopefully I will be able to get to that and issue a ruling by the end of the day.

MS. CLARK: All right. Your Honor, we had--

THE COURT: All right. We might as well move on to the--then the next issue you wish to present is the Peratis issue?

MS. CLARK: Correct.

THE COURT: All right. Ready to proceed to that?

MR. COCHRAN: We have a couple of--can we say something, your Honor?

MR. NEUFELD: Your Honor, in terms of ready to proceed, I don't think I am ready to proceed when I'm just told for the first time now that the People are about to present to the court points and authorities. I'm going to want to respond to the points and authorities.

THE COURT: This is as to Peratis?

MR. NEUFELD: I had never heard it until two minutes ago when they just informed you that they intend to come down here with points and authorities.

MS. CLARK: No. We intend to argue orally.

MR. NEUFELD: I'm sorry.

MS. CLARK: We broached this issue on Monday or something.

MR. NEUFELD: No points and authorities?

MS. CLARK: No.

MR. NEUFELD: We are ready to argue.

MR. COCHRAN: There is another issue at least that will be of some relevance to us with regard to the problem I spoke to your Honor about earlier, the jury problem, and I need to address that as soon as the court will allow me to. We filed one motion and there is another one that is coming in now that we want to file because this will require some immediate action on our part so it is of some urgency.

THE COURT: Well, we've had our discussion.

MR. COCHRAN: Well, no. There is--no. We've had a nice discussion, but you said I could bring it up again at four o'clock because there is some remedy I wanted to ask the court for before we take our next step.

THE COURT: All right. Well, we will take it up as soon as I finish these other evidentiary matters.

MR. COCHRAN: Okay.

MS. CLARK: Your Honor, given the--given the fact that the Prosecution may well rest its rebuttal case on Thursday, and at which point we would urge the court to urge the Defense to proceed and complete its case, we would like some discovery of the proposed witnesses.

THE COURT: Well, let's--let's--

MS. CLARK: I want to end this case this week, your Honor. This jury is tired. We are all tired. It is enough monkeying around. We've got our witnesses ready to go.

THE COURT: Counsel, all I'm doing is seeing what issues I need to resolve so you can conclude presenting your case. All right. I will hear argument on the Peratis issue.

MS. CLARK: Okay. Mr. Goldberg is prepared on that, your Honor. I didn't know you were going to proceed at this moment.

MR. SCHECK: Your Honor, just one thing you should put into the scheduling and that is--

THE COURT: Yes.

MR. SCHECK: --I'm fairly astonished that Miss Clark truly believes she is going to rest their case when they haven't turned over the materials that is supposed to be the subject of Mr. Deedrick's--the report--and we have a pending application to have an opportunity--

THE COURT: Well, that indicates to me that since today is Tuesday we may not see it.

MR. SCHECK: Well, I mean, if we never get to see it, they want to rest, it is over with, it is all moot.

MS. CLARK: We have turned over Mr. Deedrick's reports, your Honor.

MR. SCHECK: You know--

THE COURT: Counsel, no. We are not litigating this now counsel.

MR. SCHECK: Just an issue for you to consider.

THE COURT: All right. Get Goldberg down here.

MR. SCHECK: I have a pending application.

MR. NEUFELD: Your Honor, you also--you also mentioned earlier today that we could also address the scope of rebuttal issue. Carl Douglas is prepared to address that issue.

THE COURT: Well, we are taking this issue by issue, counsel.

MR. NEUFELD: I just wanted you to include that in the basket of issues for this afternoon.

THE COURT: All of these issues are scope of rebuttal issues.

MR. NEUFELD: Thank you, your Honor.

MR. COCHRAN: While we are waiting, does the court want me to proceed on the other one, do something, while we are waiting for Mr. Goldberg?

THE COURT: No. Actually, why don't we take the time, while we are waiting for Mr. Goldberg to arrive, why don't we at least view the proposed videotape, because we are going to do that anyway.

MS. CLARK: Right.

THE COURT: All right. Do you have it? Miss Martinez, do you have that?

MS. MARTINEZ: (Nods head up and down.)

THE COURT: All right. We will mark this People's next in order, 615.

(Peo's 615 for id = videotape)

THE COURT: Are you offering an instruction with this, Miss Clark?

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

THE COURT: Are you offering an instruction?

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

THE COURT: Are you offering a limiting instruction with this?

MS. CLARK: Yes. And that is why Mr. Goldberg is coming down. It is an instruction that limits its use for impeachment, not for the truth of the matter, I believe.

THE COURT: All right. This will be People's exhibit 615.

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

THE COURT: All right. Miss Martinez, do you have that?

MS. MARTINEZ: Yes, your Honor.

THE COURT: All right. Let's see it.

(At 3:54 P.M., People's exhibit 615, a videotape, was played.)

MR. NEUFELD: Can we turn up the volume a little bit? Thank you.

(The videotape continues playing.)

(At 4:16 P.M. the playing of the videotape concluded.)

MR. SCHECK: There is more.

THE COURT: I will hear from the proponent.

MR. SCHECK: There is more tape.

MR. GOLDBERG: Well, your Honor, there is not really a whole lot to say. I thought that we had already argued this once before, and the court had indicated that we could use the inconsistent statements from the witness. And under 1202 we are entitled to use the inconsistent statements from a hearsay declarant and this is what this is. It is inconsistent with his testimony that he withdrew between 7.9 and 8.1 cc's of blood. And it is also inconsistent with the inference that was contained in his testimony that he looked at the syringe, although it was a little bit unclear from the testimony that was read into the record, he did seem--the inference that the Defense wanted to be drawn from it is that he looked at the syringe and that is how he knew exactly how much was drawn.

MR. NEUFELD: One moment, your Honor.

(Brief pause.)

MR. NEUFELD: May I? Your Honor, this issue has never been argued before. In fact, it was deliberately postponed for this particular purpose because you decided that the appropriate time to raise it would be during the course of the People's rebuttal case. And we could sit here and stand here and law laugh at some of the jokes made on this tape and I agree at sometimes it wasn't very funny, and if it wasn't for the fact that Mr. Simpson was on trial for his life, I would sit here and laugh at that, but if the Prosecution actually thinks that they can offer a tape like that, if you will, of rank staged hearsay, completely concocted solely for the purpose of this litigation, after they knew we were going to introduce the grand jury testimony and the preliminary hearing testimony of this witness, then what they have done is set back notions of due process maybe fifty years and taken the 6th amendment and stood it on its head. And to suggest for a moment that they can somehow take a notion of unavailability and use that as some kind of license to put any kind of charade forward to this jury, it is absolutely absurd. All the court has to do initially, your Honor, is to start thinking back about the history of Thano Peratis. And what we have with Mr. Peratis is someone who as you may recall, the Defense urged the Prosecution to call as part of their case because we thought he was an indispensable witness to lay a foundation for the introduction of Mr. Simpson's blood vial. They refused. However, one of the things that I learned on this tape for the very first time is that they had subpoenaed Mr. Peratis to testify on their direct case, but at some point obviously changed their mind.

At that point in time Mr. Peratis was healthy was available and could have testified and we did everything to urge his live testimony before this jury where he would have been subjected to this type of examination and cross-examination that most witnesses are subjected to in an adversary system. In any event, they didn't do it. Sometime in late June or early July Mr. Peratis had a massive heart attack, and as we learned in court, went through a quintuple bypass and apparently it was his third bypass surgery in his adult life, and as a result of that he was then deemed unavailable. Now, when it was determined he was unavailable we at that point informed the court that we intended to introduce his grand jury testimony where he was called as a Prosecution witness, his preliminary hearing testimony where he was called as Prosecution witness, and that was going to be our offer based on the unavailability. And we were entitled to do that not simply based on the California code of evidence. We are entitled to do that based on the United States Constitution and a series of cases which have defined appropriate remedies when there is an unavailable witness. And that is what we one of the things that is really interesting, your Honor, in Mr. Goldberg's statements, that is, on July 17th, the morning before this--this outing occurred at Mr. Peratis' house, and this prep session occurred and these questions and answers ensued, is that Mr. Goldberg came into this court and said on the record at page 39085, that what he wanted to introduce were prior inconsistent statements of Thano Peratis. That is what he said. The exact words are that "If Peratis came into this courtroom and testified we would of course be allowed to introduce to impeach him prior inconsistent statements." Well, we should be entitled to do the same thing, if he is not here, if he is unavailable. That was the representation Mr. Goldberg made the morning of July 27th. Well, he didn't have there tape the morning of July 27th. He went out at apparently 3:15 in the afternoon and, umm, corrected these statements during this rehearsed interview with the witness, Thano Peratis. They are not prior inconsistent statements. The statements that we introduced by Thano Peratis were made back in June and I believe early July of 1994. That is the historical background as to what happened here. We submit, your Honor, that there are three separate reasons why this kind of rank hearsay is inadmissible at this point in time in these proceedings. First of all, your Honor, although 1202 says that hearsay can be introduced to impeach a hearsay declarant, it is not a--it does not cover all circumstances. It is not something which overrides the U.S. Constitution, nor did the legislature intend it to. In fact, in section 1204, two sections later in the same evidence code, it says, unambiguously, that: "A statement that is otherwise admissible as hearsay evidence is inadmissible against a Defendant in a criminal action if the statement was made either by the Defendant or by another under such circumstances that if it"--I'm sorry--"That it is inadmissible against the Defendant under the constitution of the United States or the state of California." So clearly the legislature was aware of the fact that not all hearsay is going to come in under all circumstances. And if in a criminal case the statement is to be used against a Defendant, which Mr. Simpson is obviously in these proceedings, then if--then it has to be done in a way that is constitutional. And there is something in the constitution called the 6th amendment which gives the Defendant the right to confront witnesses who wish to give testimony against him. And the 6th amendment, your Honor, has been construed most recently on this particular issue in 1980 in the case of Ohio versus Roberts which can be found at 448 U.S. 56, 1980, and in it what Roberts says is that there are two requirements that have to be met before something like this can occur: No. 1, there has to be a finding of unavailability. I can only assume that he was--he was unavailable, although he didn't look that ill in the course of this videotape on July 27th. But let's assume for the purpose of this discussion that they can demonstrate unavailability as we asked for unavailability two months ago in these proceedings. What Roberts says is that that is not enough. What you then have to find to make a finding of is there is sufficient indicia, you do some kind of balancing test that these statements are trustworthy for their truthfulness. That is the finding that the court has to make before you can find an exception to the hearsay rule that would pass constitutional muster under the 6th amendment right of confrontation. And I would suggest to the court, your Honor, that in this particular case they don't come close to meeting any of those indicia. No. 1, what he is saying here on this tape is that his sworn--in his unsworn testimony on this tape, is that his sworn testimony was false and that it was false in two very substantive important regards. No. 1, he is saying his sworn testimony was false because he said that he had drawn eight cc's. Now he is saying he hadn't done that. And he is saying it was false when he testified a year ago that he would, by looking at the syringe, you know, know how much blood you draw. What is extraordinary and completely unbelievable in this statement made a year later is the suggestion that notwithstanding the fact that the syringe is calibrated and it does have numbers on it and it does have lines on it, that he never turned it around to the side that had the lines on it and the numbers on it. Although that is in marked contrast, in fact it contradicts the sworn testimony he gave before another court at a preliminary hearing. So that is one indicia of reliability that is absent in this particular statement. A second indicia of reliability, your Honor, is that there is no Defense attorney present to participate or sit in on this particular interview that occurred on July 27th. There isn't even an independent party. There is an advocate, there is the Prosecutor, there is Mr. Goldberg. And I would point out at this point, your Honor, that Mr. Goldberg is participating on this videotape as an unsworn witness. This is not testimony in a courtroom where a lawyer gets up and is--and is cloaked in certain privileges being an attorney. This is Mr. Goldberg the private citizen out there with an unsworn witness and he is unsworn asking certain questions, making statements about what this witness may have said to him off camera or on other occasions and then getting the witness to confirm or affirm those statements. He, too, at that point is an unsworn witness. So there is no Defense attorney present. There is no independent person present to assess the reliability of this--of this--this staged reading that we just saw. The statement is not made under oath. And in fact the statement is made after, not as a prior inconsistent statement. The statement is made six months--or I'm sorry, the statement is made a year after he testified under oath. The statement is made six months after trial begins. The statement is made three weeks after we tell the court that we intend to introduce the preliminary hearing testimony and grand jury testimony of this witness. What better motive is there to fabricate at that point? Now, the other indicia that is relied upon by courts in this context is that was the statement made--was it some kind of innocent hearsay? Was it a situation where this witness, Mr. Peratis, simply said to a friend, God, I made a mistake about something or something like that? Is it that kind of statement as opposed to a statement that is made explicitly and exclusively for the purpose of litigation? There is no question at all that this statement was made for the purpose of litigation. And when statements are made purely for the purpose of litigation, your Honor, that indicia of reliability is lost and it is very difficult to compensate for it. Certainly it is not compensated for in the facts of this case. Now, what is another indication? Well, does it sound right? They have the temerity to suggest that this man who is drawing blood on a regular basis a year later remembers when he looked at a blood vial on June 13th of 1994, how full it was. When he said that he prepares blood vials on a routine regular basis all the time, be it in drunk driver cases or any other kind of case, he does it routinely, and he is suggesting that all of a sudden now a year later he can remember how much blood was in that particular vial as opposed to the other vials that he drew. It is extraordinary.

THE COURT: It is not often O.J. Simpson comes in and asks you to take a blood sample, though.

MR. NEUFELD: Exactly, and that is why when he testifies under oath at a preliminary hearing and in the grand jury, your Honor, that this eight cc's of blood--and it could have been 7.9 and it could have been 8.1. And I look at the syringe and that is what the syringe says, and that is exactly why he knew it then and that is exactly why the constitution prevents the Prosecution from coming in later on and going out to a man's house after he is declared unavailable and putting on a charade like this where there is no Defense attorney present, where it is unsworn, it is not even a deposition, and he can say anything he wants and he can never be challenged. That is not what 1202 had in mind and that is why the constitution gives you those protections, your Honor. Now, I would also point out--one moment.

(Brief pause.)

MR. NEUFELD: In that regard, your Honor, I would also point out that there is no independent basis for admitting this statement because even though the statute 1202 envisions that hearsay will be admissible, there still has to be some basis for it. This is not a prior inconsistent statement. This doesn't meet any of the other criteria for ordinarily impeaching this kind of witness who is offered sworn testimony. And the sworn testimony that was offered here was sworn to back in June and July of 1994, not July 27th or 28th of 1995. It would have to be prior to that, your Honor, because that is when he made the statements. In terms of a motive to fabricate, he said--he said, "It was when I heard during the trial that there was 2 cc's," although I think the testimony was really that was one and a half cc's that the vial was short, umm, "That I thought I may have screwed up the Prosecution's case and decided I had to look into this." Now, if that is an indicia of reliability, you know, that is extraordinary. It would be stretching all the rules of evidence, your Honor, to allow something like that to pass muster legally or constitutionally before this court. Umm, finally, your Honor, the tape in and of itself, apart from violating the constitution, apart from not falling within the confines of 1202, its content itself would render it inadmissible under any kind of 352 consideration or the court's own inquiry as to whether or not this would be a fair and just thing to do. And remember, your Honor, that is what you have to come back to. Is it fair and just to allow this kind of staged q and a by Mr. Goldberg to come in to rebut their own witness' sworn testimony that he gave on two prior occasions? And in that regard, you have this individual on the tape describing double and triple hearsay. He says I didn't even see this statement on television. I heard it from a friend who heard it from a friend. And your Honor, I can offer testimony right now from Robert Blasier or from Jo-Ellan Dimitrius, who were both with me at the infirmary with Thano Peratis on April 7, 1995, about this issue. And we walked into Mr. Peratis' office. He had in the infirmary a television and the television was on and we asked him why he has a television in the infirmary where he works and he says he has the television in there so he can watch the O.J. Simpson trial each day because it is often slow in the infirmary and there is nothing to do. We asked him then, "Did anybody in the Prosecutor's office tell you that you are not supposed to be watching this?" And he said, "No, no one ever told me that." Maybe that is the reason why he came up with a new explanation on this videotape on July 27th, but I can offer sworn testimony from Jo-Ellan Dimitrius or from Robert Blasier on that particular point. And that he said was--and this is what triggered it all in his mind--is he was listening to Mr. Cochran's opening statement when he heard about the one and a half cc's and he became alarmed that perhaps he was going to hurt the Prosecution's case and at that point in time for the very first time he began to reconsider this whole thing. Now, on the one hand he is admitting to us that he is watching this trial everyday, he has a TV in the infirmary, and then all of a sudden he completely changes the basis for how this information came to his attention to cover his own behind for being caught watching this show every single day. I'm telling you, your Honor, this is not somebody who you can trust under those circumstances when we don't have a sworn witness here. No. 2, your Honor, umm, he is describing in the course of this q and a an experiment he conducted, and that brings us back, your Honor, to something that came up.

THE COURT: He doesn't describe it; he replicates it.

MR. NEUFELD: Well, that is the point is does he substantially replicate it? And in fact listen to this. It is an experiment within an experiment because what he says is I'm doing it now one way. This is not the way I did it, in fact, when I did it in my own infirmary, after hearing Mr. Cochran's opening statement or hearing the reference to the missing one and a half cc's. So you don't have substantial replication, no. 1, on the video, of an experiment that he did in his own infirmary. Neither experiment substantially replicates the manner in which he drew blood from Mr. Simpson on June 13th, so none of those experiments or description of them would meet the--the case law criteria that they have asked for in keeping out other experiments that our witnesses tried to introduce. This certainly falls way short of the glove drying experiment that Mr. Scheck tried to introduce that had been performed by Henry Lee. He even says so. So if the content--

THE COURT: Swatch drying.

MR. NEUFELD: I'm sorry, the swatching drying experiment. The swatch drying experiment. What did I say? Glove? It is a day of gloves, your Honor. So just--I mean just to recap very briefly, your Honor--

THE COURT: We don't need to recap.

MR. NEUFELD: --it doesn't meet the constitution. Okay. Your Honor, I'm just saying that there are so many reasons why this can't be permitted at this point, you know. It is almost as if we could have just turned off the tape and not had to have any argument at all. It is that shocking, frankly, to even believe that the Prosecution would believe that his asking hearsay questions to a witness under those circumstances, based on what has happened in this case, could possibly be screened before this jury.

THE COURT: Thank you.

MR. GOLDBERG: Thank you. May I respond? First of all, I don't understand why this type of hysteria in advocacy is necessary, especially when we are dealing with a very straightforward evidentiary issue and the type of aspersions that counsel likes to cast. I don't know what he is talking about when he says this was staged. You may not appreciate, once again, my directorial abilities, but clearly this is not staged or rehearsed in any way, means, shape or form, not that that is necessarily what is relevant here legally. When we discussed this the last time, if I'm paraphrasing the court's comments correctly, and I believe I am, I think what the court said when counsel expressed amazement at the idea that we could get inconsistent statements of a hearsay declarant in, as the court said, well, it is something that we have in the state of California called the evidence code, so we did discuss it before. I don't know whether the court formally ruled, but I think the court has a very clear understanding of this issue and what the law is in the state of California. Now, what is admissible under 1202? It is not prior inconsistent statements that are admissible under 1202, the credibility of a hearsay declarant; it is evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant period.

It doesn't say anything about prior inconsistent statements. This is the kind of shorthand that we attorneys often use that gets us into trouble, because we are used to saying prior inconsistent statements, and in actuality the code does not speak to prior inconsistent statements; it talks about inconsistent statements. Evidence code section 1235 says: "That evidence of a statement made by a witness is not inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing." Again, it doesn't say prior inconsistent statements. And the commentaries to these sections make it absolutely clear that there is absolutely no requirement, and never has been one, in this state or any other state, that the statement has to be a prior inconsistent statement, merely that it must be inconsistent. And this is inconsistent. The next thing that I would like to point out is that counsel makes a constitutional argument that is entirely misplaced and stems from his misunderstanding of California evidence law. The section that we are relying on, 1202, is not contained in the hearsay exception section; it is contained in chapter 1. Hearsay exception also starts in chapter 2. Why is it that the legislature put this in chapter 1? Because it is not an exception to the hearsay rule. And in fact, and perhaps I should not point this out to counsel, because he apparently doesn't know this, the Defense--

THE COURT: Well, counsel, now we are getting into the same kind of conduct that you were complaining about.

MR. GOLDBERG: I'm just criticizing his legal analysis. I'm not criticizing any other aspect of what he said.

THE COURT: All right.

MR. GOLDBERG: They would be entitled to a limiting instruction that this is coming in only for the purposes of analyzing the credibility of Mr. Peratis. It is not coming in for the truth of the matter asserted under this section. It is coming in for the purposes of showing that someone who has made an inconsistent statement on the points to which he previously testified cannot be trusted with respect to those statements. So there are no trustworthy requirements. It is not being offered for the purposes of proving that those statements--

THE COURT: Mr. Goldman.

MR. GOLDBERG: I thought maybe Mr. Cochran wanted to say something.

MR. COCHRAN: I was talking to Mr. Simpson.

MR. GOLDBERG: It is not being offered for the purpose of showing that those statements are true; it is being offered for the purposes of showing that his prior sworn statement is not reliable. And that is why you do not need to satisfy any other requirements of trustworthiness or anything other than what is provided in the code itself. This is a very simple problem of mechanically applying the evidence code that is very well-established. There is no issue. There is no 352 issue. If counsel wants to introduce other inconsistent statements of Mr. Peratis, maybe he can, maybe he can't. I think we should take those up when it is appropriate. And if the court were going to rely on any conversations that he has, those should be reduced to a declaration rather than relying on his representations, because he has not correctly stated even what Mr. Peratis' former testimony was, because he did not say he looked at the calibrations on the syringe. He said he looked at the syringe. And no one ever asked him whether he looked at the calibrations or not, although that is one possible inference. So I don't think that we can necessarily represent at face value counsel's paraphrasing his conversation with Mr. Peratis, and it is not relevant anyway. It is beside the point as to this issue. Now, as to the question of the so-called experiment, this is not an experiment that is being offered for the purposes of illustrating what actually happened. It is again not coming in for the truth of the matter asserted. This is simply explaining how Mr. Peratis came to the conclusion that his former statements were incorrect. If Mr. Peratis testified that he looked up in the sky and saw clouds in the shape of a 6.5, and that is how he came to the conclusion that he really drew 6.5 cc's, that would be admissible, too. We don't have to prove that looking in the clouds is a reliable way of figuring it out. All we are trying to show is that he has made an inconsistent statement and that is part of his inconsistent statement and why he believes that his previous testimony was not correct. So it is not coming in as an experiment, but simply as part of his inconsistent statement and an explanation for how he came to the conclusion of what he previously said was incorrect. So all we are asking the court to do is follow the evidence code. It is very clear this is a an inconsistent statement. It comes in.

MR. NEUFELD: Judge--

MR. GOLDBERG: I think we were the moving party.

THE COURT: That's correct. All right. Counsel, you have argued to the court Ohio versus Roberts, which is Justice Blackmund's opinion from 1979 that I don't recollect, frankly. It was just handed to me. I would like to read it. So we will take a couple moments and I will rule. I want to read this before I rule, since you cited to it me, and I have not read this recently. I don't recollect the facts or circumstances of this case, but let me just make an observation, Mr. Goldberg. There is a lot of stuff in that tape that is not specifically a statement inconsistent with Mr. Peratis' testimony at the preliminary hearing before the grand jury, and there is a lot of surplusage there. Also, I think the court's rulings regarding demonstrations and experiments are pretty clear and pretty consistent, so may perhaps--I mean, do you have an edited version of this tape available or solely the statement as to what he drew?

MR. GOLDBERG: No, your Honor, because it would be difficult to ferret out exactly what portions those are, because in every portion, almost every portion it seems to me he is explaining why it is that what he said was incorrect and how he determined it to be incorrect. There may be certain instances where I could see the court saying that those statements do not do that directly or indirectly, but otherwise it seems to me that everything else is either directly or indirectly inconsistent with his testimony in the prior hearings.

THE COURT: All right. Well, I will read Roberts and I will rule. All right. We will take 15.

MR. GOLDBERG: Also, for the record, counsel, did not cite to me Roberts in advance. I have read it before, but I did not have the opportunity to reread it for this hearing.

THE COURT: Well, it has been a long time since I read it. All right. We will take 15.

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. I've had the opportunity to read the state of Ohio versus Herschal Roberts. The court's ruling is as follows: As to the admission or nonadmission of the statement by Mr. Peratis, the record reflects that the court previously made a finding of unavailability of Mr. Peratis on the basis of his medical condition, that medical condition having been prior heart bypass surgeries and now a quadruple bypass surgery. I believe this was his third bypass surgery. His doctor had indicated he was not available to testify in court. Neither side has chosen to challenge that finding at this point. The Prosecution's offer is that of a statement as evidence of impeachment of a hearsay declarant under evidence code section 1202. This is not an offer under 11235, an offer of a prior inconsistent statement or of an inconsistent statement for the truth of the matter stated. It is merely for impeachment purposes. It is therefore limited in its use. The cite to the Roberts case is not applicable to this particular fact situation. The court has found previously the unavailability of this particular witness. The court allowed the Defense to then present prior testimony both before the grand jury under oath and before the magistrate at the preliminary hearing. And under any circumstance, a statement made by a witness which is inconsistent with their--not under any circumstances, but under most normal circumstances, an inconsistent statement would be admissible for the purposes of impeachment. The troubling part of the proffer is that this videotape contains the demonstration of an inadmissible experiment and contains extraneous double and triple hearsay information given to Mr. Peratis by other persons. The court will sustain the objection to the experiment part of the tape, anything that is irrelevant or extraneous. The People may offer an edited portion of the videotape where Mr. Peratis specifically discusses his testimony regarding the amount in the syringe. However, the remainder is excluded as being superfluous, and the court will see the videotape in its final form before it's exhibited to the jury. All right. That's the order. All right. Any other issue we can take up before we recess for the day? Mr. Shapiro.

MR. SCHECK: Your Honor, an important matter, the letter memorandum and request for leave concerning the testing of Mr. Goldman's blue jeans and statements of discovery with respect to the testimony of proposed testimony of Mr. Deedrick, I have to bring to the court's attention.

THE COURT: All right. We have Mr. Goldberg present at this point in time.

MR. SCHECK: Yes. Now, your Honor, yesterday, they turned over what appears to be a report from Mr. Deedrick wherein he indicates that he is going to testify based on experiments that he's already done, that the imprints on the blue jeans of Mr. Goldman came from Mr. Goldman's shirt and the imprints on the letter and the piece of paper came from Mr. Goldman's blue jeans. Now, the Prosecution turned over to us a few photographs and statements about how on August 21st, the day before Dr. Lee testified--this is very curious because Mr. Goldberg was saying it all came as a big surprise to them, but on August 21st, they went and did test impressions too of Mr. Goldman's jeans. And the way the test impressions were performed is apparently using something they call an indicator. But from the pictures, it appears to be something that they ordinarily use to roll palm prints, and they would press this yellow--what they call in the reports a yellow piece of paper onto the jeans and then they would place--then roll it with a roller. Then they place a white piece of paper on top of them and then they roll it over the jeans and then they get some kind of what they call impression. They apparently did two of those on August 21st. We have a small picture of one of those, but nothing that we can show an expert that they can do anything with and we have no idea whether this is what Mr. Deedrick's using. Then on August 31st, they took five more impressions of the jeans and they took impressions from Mr. Goldman's shirt and they took impressions from his shoes. The shoes have been ruled out. Apparently all these documents were then sent to Mr. Deedrick in Washington where he made an analysis and came up with a report. This was done without notice to the Defense. Now, what I can show the court--and the pictures they have, p numbers of 4971 and 4967, and I would like to mark these as exhibits if I could. Why don't we deem them Defendant's next in order a and B.

THE COURT: All right. And what--the court can see, and these are apparently the impressions that were done. 1374.

MR. SCHECK: 1374-A and 1374-B.

(Deft's 1374-A and 1374-B for id = pictures)

MR. SCHECK: 1374-A shows--

THE COURT: Why don't you hand those to Mrs. Robertson.

MR. SCHECK: --shows the piece of paper that presumably has an impression on it, and 1374-B shows the jeans before this process was done. Now, we haven't seen the jeans since they went through this process, but I know from their own reports that they did five more impressions on the jeans since then. And what you see there is the results of only the first two impressions. And I think the court can see that on the jeans itself, there is a triangular impression that must come from the other side of the jeans being impressed onto the front side of the jeans. In other words, you can see an imprint pattern or a pattern on the jeans after they went through this process that wasn't on the jeans beforehand. Now, that is a matter of serious concern under Griffen and Arizona versus Youngblood. The reason it's a matter of serious concern is, Dr. Lee testified to the imprint patterns on the jeans, and those imprint patterns I dare say were favorable evidence to the Defense. That's clear. It's the subject of their rebuttal. This court had already issued an order that we're supposed to be given 48 hours' notice if the Prosecution is going to conduct any potentially destructive tests so that we can have an opportunity for an expert to be there and also to litigate the reasonableness of doing that test. It seems absolutely clear to any sensible person that the process of taking this test impression as they went about it would create a risk of altering the jeans. What's worse is that it's plain from the photographs of August 21st that they altered the jeans with the first two test impressions they took. And we haven't seen the jeans since and there are no pictures of them that I see here, but they apparently did five for test impressions. Of course, they have done the same thing to the shirt.

So it seems to me that there is an issue here that we will have to litigate with respect to a bad faith alteration of exculpatory evidence. I mean, this is a classic because there was an outstanding order. It could be--anybody could see, even particularly after the August 21st impressions, that they were going to alter the evidence. So there's really no good faith justification for doing this. Anyway, they were under orders not to do it. Any responsible Prosecutor would have given us notice. In fact, quite the opposite was going on. We were sitting here with Mr. Hodgman and Mr. Yochelson looking for Mr. Goldberg to get various data from him about contact sheets and something else and there were 1054 proffers to the court. I don't know what they were about, what they were going to do, but they shouldn't have been doing this in the fashion they did without giving us notice. We cannot fully litigate how much these jeans were altered or the other items. We haven't seen them yet. I don't have experts available to look at them yet, particularly since we don't have the underlying data that apparently is going to form the basis of Mr. Deedrick's testimony. That is, we don't have the actual test impressions.

Now, I asked Mr. Goldberg yesterday when we were going to get this data and when we were going to have an opportunity to look at the jeans, take a look at their test impressions, compare it with one expert so we can make copies of the test impressions, see which ones or which part of this pattern Mr. Deedrick is claiming matches something on the envelope, the piece of paper or how something from the shirt matches the jeans, and then we have to see what he's actually done. And I asked him what was going on and would they give us notice that they were going to do something else. He told me, well, he takes the position that nothing gets altered, it's not a destructive test and that he, Mr. Deedrick, is going to arrive here sometime tomorrow afternoon. And for the purposes of only having one witness testify, he's already finished the report for only having one witness testify rather than bring in these people from the LAPD who actually rolled the impressions. He was going to have Mr. Deedrick do more test impressions. So only one witness would have to testify and they wouldn't have to bring these other people in. And I asked him, "Well, are you going to give us notice and reasonable opportunity to bring an expert there to even observe this and to litigate the issue of whether you can go about and do yet another set of test impressions even after he's finished his report and alter the evidence some more?" And he said, "Well, I'll tell you when he's coming, but we won't wait for you." Now, I've done my best to try to get somebody here who's knowledgeable in the area. I've spoken to Mr. Morton. He can be here on Thursday if Mr. Deedrick is going to come and bring his materials. But we want to just basically have an opportunity to look at the jeans, review with Mr. Deedrick the test impression sheets that he has, see exactly what the basis of these experiments are, have Mr. Morton review it, make copies of it, send it to Dr. Lee and Professor MacDonell so we can have evaluation of it. And I can tell you this. We won't be ready to either litigate the issue that--the Arizona versus Youngblood issue or another extraordinary substantial issue I see. And that is, I don't think there's a sound basis just from what I've seen so far to get these experiments into evidence under the substantial similarity test and the way the court has been ruling on these experiments.

It's a very serious issue. I can't even adequately litigate that until I see the underlying data from these reports. So I'm, you know, really quite flabbergasted that Miss Clark, who likely is going to be putting this on, she can stand up here and say, "Well, we are going to rest on Thursday," calling Deedrick the next two days, you know, when they're not even making an effort to furnish us discovery. And worse than that, they're spoiling the evidence. I mean, this is a railroad, and there has--this has to stop because this is completely inconsistent with the discovery law in this state, inconsistent with positions they've taken. It's ridiculous. So the relief that we're asking for--and I think it's one that's reasonably designed to try to get this trial over within a fashion that's fair--is that we can bring Mr. Morton down, he can look at this data, we can evaluate it, we can file our motions with respect to any alteration. There is no need for them to take yet another test impression just so Mr. Deedrick alone can testify because that is on its face gratuitous. He's already filed his report based on the data he has, and we need an opportunity to evaluate the evidence to make our Griffen motion with respect to that evidence by whatever prejudice has ensued and also to file a fully informed motion with the court objecting to those experiments because I can see right now that there are serious problems here and something I'm sure the court will want to look into. If we're given that opportunity to get the data on Thursday, I can send it federal express to Dr. Lee and Professor MacDonell, we can evaluate it over the weekend, we'll file the papers on Monday. The court can consider it. After the ruling, we'll see whether or not Mr. Deedrick can testify and we can proceed from there. That's my proposal to do this expeditiously. And we want--as indicated in my letter memorandum, we want the relief of having the discovery that we've entitled to by tomorrow or certainly by Thursday I should say, the opportunity for our expert to look at the shirt, the pants, et cetera, and what Mr. Deedrick's done and then an opportunity to have our expert look at it before they do anything else to this evidence so we can proceed in an expeditious manner.

THE COURT: People.

MR. GOLDBERG: Thank you. This is remarkable, your Honor. I don't know whether the court's had an opportunity to read our motion yet for discovery sanctions relating to Dr. Lee. I hope the court perhaps will take a look at that before dealing with this issue if your Honor feels you have to take this under submission, if you feel that you cannot summarily dispose of it right now. I learned for the first time on or about August--excuse me--on or about August the 21st when I spoke to Dr. Lee that somehow he had excluded the jeans as having made the impressions in this case. I did not learn that as a result of Defense discovery. It was not documented in any report. I learned it as a result of my conversations with Dr. Lee. He was cooperative with me. I learned for the very first time on this witness stand that he also excluded the shirt. That was not documented. That was not in any Defense discovery. And now they are claiming that somehow we have violated our discovery obligations and our legal obligations because upon learning of these violations and of this evidence, we expeditiously went about being able to confront it and present a rebuttal case as quickly as we can. I do find that to be remarkable. Now, your Honor, just so the record is clear on some of these factual points, on August the 21st or on or about August the 21st--this was around the time that I learned from Dr. Lee I believe his statement about the jeans--I caused an impression to be made pursuant to the instructions of Mr. Bodziak, who I also consulted in order to be able to cross-examine Mr. Lee on this point. I was working very rapidly. I didn't have any real notice on this issue by the Defense. I wanted to know in my own mind before cross-examining Dr. Lee whether or not the jeans could have been involved and possibly had that impression to be used as an exhibit for cross-examination. I tentatively planned on using it, but elected not to during cross-examination. I felt that it was tactically not necessary. On the 31st, after learning that Dr. Lee had also excluded the shirt, I wanted impressions to be made of an examination quality of both items immediately so that that material could immediately be sent to the FBI so that we could rapidly perform tests so that we would be able to present evidence in our rebuttal case. And as it is, we're probably just going to get this in under the wire. I mean, we've really been pushing things as a result of not having discovery and notice of this. When counsel says that we took five or six impressions, just so the record is clear--and I don't necessarily think this misstatement is material on his part--there were only those two dates in which impressions were taken and only one set of impressions was taken from the shirt.

When impressions were taken from the jeans, when he says six impressions, what he means to say, as I explained to him, is that the jeans were impressed on a single piece of paper more than once. To quote Mr. Peratis, we went, bing, bing, bing, bing, bing six times. But it was not six different occasions that these impressions were taken, but there are a total of more than one impression on a single piece of paper that's approximately 10 and a half inches by nine inches, something in that order. Now, to respond to the so-called relief that counsel is requesting, first of all, in his letter brief, counsel says that I informed him that Mr. Deedrick was going to perform experiments involving the use of Mr. Goldman's jeans and he characterizes what happened to the jeans as being an experiment and suggests that that's the way I characterized it. I specifically said to him the same thing that I'm going to say to the court right now, and that's, the taking of a test impression or exemplar is not an experiment. Whenever we conduct comparative analysis or impression--or present evidence regarding impressions, regardless of what class of evidence we're talking about, we always have to have an exemplar.

If it's handwriting, we get an exemplar of the person's handwriting. If it's a footprint, we make an impression of the shoe on a piece of paper. If it's a tool mark, we make an impression of that. If it's a rubber stamp, we make impressions of that and so on and so forth. We do that with all impression evidence. And in the case of clothing, we have to do the same thing. It's common sense, and that's also what experts will tell you. So we wanted to have these impressions, these exemplars for the purposes of them being able to perform a comparison. That is not an experiment. It is not a test of any kind. It is not a test if I took the court's finger and made an impression for the purposes of being able to compare it to some other fingerprint. That's what we do with all comparison evidence. We take impressions and that's what we did here. That's all we did here. And to characterize it as a test or an experiment is simply a complete mischaracterization of what I said to Mr. Scheck, a complete mischaracterization of what common sense and scientific experience will tell us. Now, for the requested relief of precluding us from taking these impressions or suggesting that we're somehow legally not entitled to take these impressions, we have a tremendous amount of attorneys in our legal system with the obligations of Defense attorneys and Prosecutors. Our legal system is very old. We have been conducting court trials and jury trials for about 750 years. Our common law is extremely old. And I would ask counsel to point out to the court any statute from any jurisdiction, any case law from any jurisdiction in those 750 years that suggests or implies that the Prosecution has any obligation whatsoever to refrain from investigating a case, from doing the tests that we require, experiments that we require. We don't. There is no such authority. And I think the court's orders recognize that because when your Honor made your ruling in August--on August the 26th, 1994, in discussing People versus Griffen, you said that the Prosecution must be allowed to investigate and prosecute crime, and due process does not require that it forego investigation in order to avoid destroying exculpatory evidence, citing the Griffen case. And you also said that for the proposition that the Prosecution is to be prevented from performing scientific tests to destroy evidence, that there was no authority to support that proposition, and that although it could not be condoned that your Honor was not going to decide prospectively what tests we could do and not do under the authority that counsel cites and that your Honor reviewed, in your order, if the Prosecution were to destroy exculpatory evidence in bad faith, then the court could apply a sanction retrospectively. But as the court recognized in its previous rulings on this issue in a different context--

THE COURT: Well, let's examine the specifics here rather than the general legal principles. What we have was testimony regarding impressions made by either the jean material or the shirt material, correct? That was from Dr. Lee.

MR. GOLDBERG: Dr. Lee said that the jeans could not have made the impressions on the piece of paper and the envelope and also said that the shirt could not have made the impressions.

THE COURT: All right. So in response to that testimony, you've asked your people to test the shirt and the Levis or Levi type material to see if that is in fact true, correct?

MR. GOLDBERG: Well, I wouldn't call it a test. I would call it--they made an exemplar of that.

THE COURT: For comparison purposes.

MR. GOLDBERG: To be compared to the impressions on the envelope and the piece of paper. In fact, that comparison was done.

THE COURT: All right. Now, my concern--what was raised is that--one of the issues that was raised that causes me some interest and concern is whether or not the manner in which the impressions were taken from the Levis and from the shirt in any way obscured, destroyed any of the evidence that was on there.

MR. GOLDBERG: Well, those impressions were--some of the impressions were taken in my presence on August the 31st, and those impressions that were taken were taken from portions of the garments that did not have any observable blood or impression evidence on them. And although I believe it is possible to see a very slight yellow staining on the areas where the impressions were taken, it does not obscure, obliterate--even if it had been done on areas of the jeans that contained some blood pattern, it would not obscure or obliterate that. But it was not, your Honor. It was done from portions of the garments which are not at issue in this case, which have not been testified to and which did not contain any observable evidence in this case.

THE COURT: All right. The other issue I'm concerned about is whether or not you've turned over all the notes that you have in your possession concerning this exemplar taking or comparison, whatever it is you have, and the photographs.

MR. GOLDBERG: Yes.

THE COURT: When was that accomplished?

MR. GOLDBERG: The--it's been done in stages, your Honor, and I don't know if I'm prepared to cite all of the dates now, but it was completed by yesterday. There were notes of Ron Raquel as to his taking of the test impressions that were returned that were turned over yesterday, but I actually turned over photographs of Mr. Raquel taking the impressions and I turned over a statement from our investigator who witnessed taking the impressions significantly before then.

THE COURT: So since you intend on offering this testimony, what is it likely to show and what's your expectation of what Mr. Deedrick's testimony is going to be?

MR. GOLDBERG: Your Honor, also, yesterday afternoon, Mr. Deedrick faxed me his report, faxed me the report--

THE COURT: Uh-huh.

MR. GOLDBERG: --which I also sent to counsel as soon as I got it. And incidentally, I've been giving all of this information to Defense as quickly as I've received it with the exception, as Mr. Scheck indicated, of the exemplars which I immediately sent to the FBI. Those are on their way back to Los Angeles. To answer the court's question, what Mr. Deedrick is going to testify to is that he has done a comparison between the eyeglass envelope and the paper and the test impressions and that the jeans can be included as having made the impressions on those items, that the shirt can be included as having made the impressions on Ron Goldman's jeans. Your Honor, just to address the last issue of the question of--I don't know whether the court wants me to say anything further about the Prosecution's right to conduct tests, even destructive tests, because I don't think it's really all that pertinent. This is not destructive. Even if it were, we could still conduct it. And even if we destroyed exculpatory evidence, the only remedy would be for the court to look at that retrospectively; in other words, after it had been done and then impose a sanction. But I think the court recognizes or at least recognizes that prospectively, the judicial branch does not get involved in deciding what tests and what experiments the Prosecution can conduct. But I don't know whether the court needs or wants to hear anything further on that issue.

THE COURT: No. I just wanted to know what it was that we had here and where you're going with it.

MR. GOLDBERG: Okay. As to notice, your Honor, I said to Mr. Scheck, first of all, when I spoke to him, "If you guys want to see the jeans, you're welcome to them. We'll arrange that. We'll be accommodating to you as we have in the past. You want to take your own impressions of it, have fun. Take impressions if you want to take impressions." And that is our position now. As for the issue--

THE COURT: I take it that includes the shirt as well?

MR. GOLDBERG: Yes. The shirt. Your Honor, as to the issue of notice, what I said to Mr. Scheck on that score is that Mr. Deedrick is going to come in to Los Angeles. I believe he is going to be arriving here tomorrow in the late afternoon or early evening. So he may not have time to go to the Los Angeles Police Department. But as Miss Clark has indicated, it is our intention to put this evidence on very rapidly and we are trying to get everything done rapidly and we are trying to turn over discovery very rapidly so that we may do this. And we could have done this a lot faster if we had had the discovery.

THE COURT: Have you received the exemplars back from the FBI yet?

MR. GOLDBERG: No.

THE COURT: Do you have any of them left? You indicated there were six impressions from the Levis.

MR. GOLDBERG: But they're all on a single piece of paper, and that was sent to the FBI. And there's--similarly, there's a single piece of paper containing the impressions from the shirt which was also sent to the FBI. Your Honor, on the question of notice, I said to counsel we would give notice, but I did not want--I'm not--I did not want to hold anything up because I want Mr. Deedrick to take these impressions as quickly as possible from the jeans so that he can testify. For some reason, my suspicion is that counsel wants to make what I would think to be entirely inappropriate and frivolous argument that the manner in which the impressions themselves were taken is a substantive issue as to the admissibility of those impressions. I think it's frivolous because we take impressions all the time of all kinds of things. We have to do that whenever we're talking about a comparative type of analysis or impression evidence.

But if they wanted to make an issue of that, I would like Mr. Deedrick to have taken the impressions himself so that he can answer all questions and be cross-examined and examined as to how they were taken. Actually, I don't think that legally that is necessary. But if that is the direction which counsel is prepared to go--and I suspect it is--as frivolous as it may be, we want to be in a position to meet it, and we can meet it best by having Mr. Deedrick take the impressions himself. And also, it cuts down on the number of witnesses, it saves times, it cuts on the amount of direct and cross-examination.

THE COURT: Well, if Mr. Deedrick comes into town tomorrow, which is the 13th, late in the day, is not available to examine the items until early on the 14th, then you probably--he probably won't be available to testify until late on the 14th, correct?

MR. GOLDBERG: Miss Clark tells me that he may be coming in earlier, in which case, if he comes in at any time prior to 5:00 o'clock, it is our intention to have him go to the Los Angeles Police Department if necessary directly from the airport in order to be able to accomplish this. So that is the People's position.

And in terms of the Defense saying they need more time to deal with this, well, you know, this is a very tiny part of Dr. Lee's testimony really. When he testified that he excluded these items of having made the impression, it only took about a minute for him to say that. I did not cross-examine him at all on that for tactical reasons, and we are putting this evidence on to rebut a minute of testimony that we could have been in a better position to confront if counsel had given us notice. They knew they were going to put this on. So I just do not see any basis whatsoever for them asking for more time to confront testimony that the People did not have an adequate opportunity to be able to fully prepare for and where we have been doing everything that we possibly can to be able to confront this testimony or to respond to this testimony as expeditiously as possible.

THE COURT: All right. Any brief response, Mr. Scheck?

MR. SCHECK: Your Honor, just so the court completely understands the facts, is that, as Mr. Goldberg is not conceding, we do not have these imprints from the pants and the shirt. As I should note, that from the discovery pages labeled da 5365 and 5366, on 5365, they say that with respect to the jeans, that one sample was taken from the right knee area of the jeans, the other impression was taken from the left lower rear area of the jeans. He made the impressions by taking a yellow pad and applying it to the jeans itself. So on August 21st, they indicate two impressions from the jeans and then the report says they took five samples, impressions from Goldman's jeans on August 31st. So I count seven from their reports. That's where I come up with it. They gave us one unusable picture that you see. Now, what we need to do, as I indicated, is to evaluate what they're proposing to put on, is take a look at the actual sheets of test impressions and compare that to the envelope itself and the jeans and impressions from the shirt to the jeans so our experts can have an opportunity to look at that. In terms of the timing of this, I think what I proposed is reasonable because we're going to have to get copies of what they don't have here to give us and send that out. Now, it's going to be adding even more time and it's totally unnecessary to have Mr. Deedrick make another test impression just for the purposes of him testifying alone. That's--they concede the single purpose of it. And then we would have to take that test impression and send that out to our experts and have them look at it, and it would only prolong the process, not shorten it, in terms of getting an adequate opportunity to evaluate what he's saying. So we don't have adequate discovery to deal with this. Incidentally, I would point out, Dr. Deedrick didn't turn over all experiments, all raw data, and I do want to get into that issue. Mr. Blasier briefed it. We dealt with it. That's not the point. I don't understand. I call it experiments. He doesn't like the term "Experiment." He doesn't like the word "Test." He only likes the word "Test impressions." Call it "Test impressions." The photograph that the court has from 8-21 shows that it alters the jeans. Now, I want to see the jeans myself. We want our experts to look at the jeans. We want to determine for ourselves whether or not that altered the areas that Dr. Lee testified about. And as for this absolutely extraordinary argument that this court has no power to prospectively restrict the unreasonable alteration of exculpatory evidence and that you are powerless to restrict them from doing that even though you've already issued an order saying they have to come before you and give 48 hours notice, I mean I'm--this is remarkable, that they can actually take the position, and it's the position they've been taking all along, that we have a right to--

THE COURT: Do you have anything new?

MR. SCHECK: I don't have anything new, but I would ask the court to permit us to proceed in the fashion that I've outlined. I think that what that will do is give us an opportunity to present the issues to the court for ruling on the substantial similarity of these experiments. Mr. Goldberg, even though he's talking about what we do, my information is, nobody ever heard of what Mr. Deedrick is doing before, and I would be real curious to see if he's ever done imprints made in blood with two different fabrics on these receiving surfaces in the fashion he's done in this case. I suspect he's never done this before.

THE COURT: All right. But we're talking about a pattern impression here of a fabric. So this is not exactly rocket science.

MR. SCHECK: Whoa, whoa. We're talking about imprints in blood, fabric on fabric, jeans on to a shirt and then jeans on to envelopes. We just want to see what he's done, but imprints in blood.

THE COURT: Uh-huh. Thank you, counsel.

MS. CLARK: Your Honor, logistically, I should let the court know, Mr. Deedrick will be in tomorrow. He should be arriving by--in this court building by about 11:30. And what we can do--

THE COURT: Will he have with him the impressions?

MS. CLARK: He will. I also propose this. That they have Mr. Deedrick do the impressions, meet in court, and then they can have their expert here to examine everything Mr. Deedrick has done, question him about it and then everybody can be ready to proceed on Thursday.

THE COURT: All right. Thank you.

MR. SCHECK: Your Honor, Mr. Morton, I called him and asked him when he would be available. He's got a court appearance. He won't be available until Thursday. He's canceling another court appearance so he can get here Thursday, and they told me he would be here tomorrow afternoon. And we object. We want a ruling that he not be allowed to make any other impressions until we see all these objects and have an opportunity to brief the Griffen question and from the--

THE COURT: The Griffen question has already been raised, counsel.

MR. SCHECK: No. No. As I'm indicating, we don't know what the jeans look like. I can't adequately present them.

THE COURT: All right. Thank you, counsel. All right. The Prosecution is ordered to make available for inspection by the Defense and their experts, if such be available, the test impressions currently in the possession of Mr. Deedrick. That's to be accomplished no later than, assuming airplane connections, no later than noon tomorrow. The issue of fabric impressions was raised by the Defense. The court notes that both sides have had access to both the jeans and the shirt. Either side had the opportunity anytime they wanted since June of 1994 to take any impressions in whatever manner they wanted. The Defense had prior opportunity to look at these items. It's apparent from Dr. Lee's testimony that he did in fact examine carefully the fabric patterns of both these items. Defense experts have had access to it. I find no discovery violation. Objections are overruled.

MR. SCHECK: Your Honor, we need time to--if they're going to deliver these test impressions to us tomorrow, I have no expert to look at them. I have to take--I have to make copies of them in a way that is usable for the experts. I have to send them out, and I don't believe I'll be able to cross-examine this witness until Monday.

THE COURT: Well, counsel, the issue was raised by your witness. So your witness has already seen the impressions, knows about these impressions.

MR. SCHECK: No. No. No. He never saw them.

MR. GOLDBERG: May I be excused?

THE COURT: Yes.

MR. SCHECK: I want an opportunity to look at their test impressions and their results.

THE COURT: You can have the opportunity to look at it. Counsel, I've directed that. All right. That's the end of that issue.

MR. GOLDBERG: Thank you.

THE COURT: All right. Mr. Shapiro.

MR. SHAPIRO: Thank you very much, your Honor.

THE COURT: Good afternoon.

MR. SHAPIRO: Good afternoon, your Honor, after a long and tiring day for all of us.

THE COURT: And it's going to be longer.

MR. SHAPIRO: I have a very difficult motion to present to your Honor that is based on conversations that were caused in chambers as relating to a sitting juror; and the motion that I bring before your Honor is to have that juror excused because of the conversations that took place on the record in this case with that juror.

And although we have great empathy with the court as trying to do everything humanly possible to make the conditions for this jury tolerable, livable and in a way that this jury can eventually hear all the evidence and reach a verdict, we are compelled under the law to bring to the court's attention what we believe was a violation clearly of the constitutional rights to an independent and fair jury of our client, Mr. Simpson. And we believe that the court, although noble in its desire and purpose to try to alleviate any potential financial hardship that this particular juror has suffered, has in fact created a legal condition that now has put this juror in a special place. And what I--

THE COURT: What action has the court taken that puts this juror in a special place at this point?

MR. SHAPIRO: Well, the court's indicated action. The court has taken no action whatsoever.

THE COURT: The court said to the juror give me a couple days to look into this.

MR. SHAPIRO: That's right. But the court also indicated I believe that there would be some effort made on the part of the court that would in fact result in a financial hardship of this juror being relieved. And since that financial hardship has been discussed amongst other members of the jury by this juror, we feel now that that juror, just from the conversations with your Honor and from your Honor's indication that the court would be willing to look into financial aid as well as other support from the court regarding a rental income property, that that has now affected this jury--this juror in a way that it might cause other jurors to feel that they are entitled to similar types of consideration, to similar types of compensation. The court has not made any ruling whatsoever nor has the court done anything yet. However, I think it was clear to that juror, who was very comfortable at the end of the conversation, that this court, as it always has towards jurors, was going to do everything possible to try to alleviate that hardship. And we believe just in doing that, this juror now may feel a special kinship to your Honor.

THE COURT: Well, I've done this for a number of jurors. I have gone out of my way to make sure jurors have been transported out of state to attend families' funerals and gone out of my way and spent county funds to do that. Juror 247 the other day had a problem that we had to deal with that the court made special efforts to do that. Are you suggesting that every juror for whom this court has made efforts, special efforts unique to that juror, that those jurors should be excused, if you are making that motion?

MR. SHAPIRO: No, I am not.

THE COURT: Because your position is inconsistent with the court's treatment of all the other jurors.

MR. SHAPIRO: No. And we commend the court and in many instances joined with the court and acknowledged that those things were justified. What this case--and this issue we believe is different because this involves substantial proposed financial compensation retroactive for several months, not something protracted, something that may come up in the future, something of an emergency or something that would come up just once. This is something that involves a financial issue which we believe is separate and distinct from the other very personal issues that the court has shown great empathy for and properly so to the jury and we have concurred with that.

THE COURT: I seem to recollect, Mr. Shapiro, that when one of the jurors was excused and you chose to take a writ to the court of appeal, that you urged that this court should go to a higher level of vigilance in keeping each and every member of this jury intact and on this jury and you've urged--you have--you took the position that is not just reasonable cause regarding excusing jurors, that I should take a heightened level of scrutiny to each one of these decisions. So I think this is an inconsistent position with your prior position.

MR. SHAPIRO: That is absolutely correct. But we believe in this case, that by separating one juror based on financial considerations, that it violates the basic tenets of the United States Constitution and the constitution of this great state and gives unequal compensation financially in a significant way to one juror as opposed to 12 others and two alternates. And I am sure that all of these jurors have tremendous hardships that would greatly be alleviated with the largesse of this court and by any type of compensation, but we believe constitutionally that violates Mr. Simpson's right to have a fair and impartial jury where each juror is treated as one and the same. And this gives the impression of--whether it is right or wrong, but it gives the appearance that special treatment is being given to a juror. And we are not saying that your Honor has singled out this juror for special treatment. This juror came to your Honor. This juror demonstrated financial hardship and this juror was apparently in a condition where this juror could no longer continue on this jury because of the great financial hardship this juror was suffering based on some rental income property, and the court sought to alleviate that problem. It is our position, however, that such relief, however wonderful and compassion--

THE COURT: Noble is the word.

MR. SHAPIRO: However noble--that's right. That's a better word--however noble the court's decision was, it is not a constitutional right that this court enjoys.

THE COURT: All right. I take it you'll file your motion.

MR. SHAPIRO: Yes. Your Honor, we have also--just for the record, we have filed the motion. And the other thing that it does, your Honor, is, it puts a juror in a position where the juror now might feel that if this continues and if the court is going to compensate a juror for lack of income in a rental property, that this juror may have an added interest in prolonging any type of--

THE COURT: Miss Clark, that's not necessary.

MR. SHAPIRO: Miss Clark apparently has a funny bone that has been touched. That this juror might have a financial incentive for wanting to prolong any type of deliberations. Now, we don't believe realistically that any juror wants to do anything other than end this and end this quickly, but we pointed that out in a footnote and I think it's important to add.

THE COURT: All right. Thank you, counsel.

MR. SHAPIRO: Your Honor, and we would like to get an answer as soon as possible so that we can take a writ on this matter. We feel it's that important a constitutional issue.

THE COURT: Well, we may have somebody come forth from the public and volunteer to alleviate this problem outside of the court. Who knows? It may go away.

MR. SHAPIRO: Thank you very much, your Honor, for your consideration.

THE COURT: You are welcome, Mr. Shapiro, as always.

MR. SHAPIRO: Thank you.

THE COURT: All right.

MR. COCHRAN: The last issue for today, your Honor, may deal with the scope of rebuttal regarding certain lay witnesses and where we're going in this case.

THE COURT: We do have the June 17th issue still open.

MR. COCHRAN: Yes, we do, and perhaps we can take that up tomorrow. What I'm concerned about, your Honor, Miss Clark indicated today that the People might rest on Thursday. If that be the case, we'd like to know which other witnesses they have pared down. You directed Messers. Douglas and I think Fairtlough instead of Mr. Darden to get together. They have taken some witnesses off their list, but we still have a list that would be roughly 56 people less the few who have been called. We need to know who they are going to call in order to get down to this--to finish this case by Thursday. We are entitled to those list of names. We'd like to have those now. There may be another issue regarding the 6-17 events and the issue regarding Dr. Dutton I guess. That will be coming up next week. So I'd like to have that at this point because if they pare other people down, if they're not calling other people, we need to know now so we can get this case over with. We want to resume our case. We have witnesses out of state and one in particular we're going to be asking the court probably either tomorrow afternoon or Thursday morning to help us bring back and another--a new witness to bring out here. So we want to do that as soon as possible so there's no delay for next week. So may we have that, your Honor, some indication what witnesses have been pared off, who is coming up next, what witnesses they're going to call to finish the case by Thursday, within three days? We are entitled to it.

THE COURT: I assume they are going to offer at this point a modified Peratis video, that they're going to offer Mr. Deedrick as to fabric impression; is that correct, Miss Clark?

MS. CLARK: Yes, your Honor.

MR. COCHRAN: Wouldn't it be easier to hear it from them?

THE COURT: No. Those are the issues we just finished discussing. So those are pretty obvious; wouldn't you say?

MR. COCHRAN: Yes, they are. Yes, we knew about those. I'm trying to find out who else they have.

THE COURT: And we are concluded with the glove people. So what does that leave us with, Miss Clark?

MS. CLARK: That leaves us with Bill Bodziak. We have to litigate the Bronco fiber issue.

THE COURT: Uh-huh.

MS. CLARK: That's--I'd indicate to the court that would be--that's very brief. If that's admissible, the Bronco fiber witnesses are three in number, 15 minutes each. I'll be asking the court--also, the Ackards, Lawrence and Nancy Ackard, Christian Anders, George Field, Don Thompson, Dr. Dutton, right--that depends on the motion--Gretchen Stockdale, and that is a matter I have to take up. That brings me to a letter I have to take up.

MR. COCHRAN: Is that all?

THE COURT: That's about three day's worth.

MR. COCHRAN: But obviously, then they're clearly not going to finish on Wednesday. That's a pipe dream. How can we finish Wednesday? That's preposterous. It's optimistic. More than optimistic. That's preposterous. Your Honor, the issue is, you know, I think we should be realistic because that brings me to the last motion I would at least have the court think about. I told you earlier this morning that I--I think on behalf of the Defense and behalf of Mr. Simpson, we hereby would ask this court to modify the sequestration of this jury.

The court will recall that approximately I guess now 10 days ago, we met in chambers regarding a juror who should remain nameless, and the court made representations based on what we told your Honor that you expected this case to be to the jury by the middle of September on or about September 15th. We're not going to make September 15th clearly. We'll be lucky to finish this case next week unless there's some paring down. And so I think it's unfair I think from the standpoint of all of our credibilities--during voir dire, we told this jury they'd get the case in April as I recall. And so it seems to me that we've reached a point where this jury should no longer be made to suffer. Our client's had to suffer and we hope to alleviate this situation very soon, but these jurors were brought in from the outside, and it seems to me the court should seek to modify the sequestration. And this court is very, very innovated and I believe this to be an appropriate time to set up some kind of procedure where these jurors can go home at night, meet someplace in the morning. It's unfair to keep them here it seems to me past what we've told them would be required. We're going to lose some jurors as you're aware and the People--at first, we thought they might have understood this. But when we see this list, they say this is just three days, they still don't understand it's going to be well into next week, and the problem is going to be aggravated. So I make this motion most seriously. You can still have the ramification of sequestration. And you'll recall that when picking this jury, you told these jurors not to watch television, not to do certain things, and by and large, they complied with the order. These people have been here almost nine months and I think they would do this. I think they would welcome it and it would take a lot of pressure off of them. We can finish this case. We still should finish it as soon as possible. It will be a lot fairer for these people if the court will consider doing it. We've all thought about this and we all have--Defense agrees this would be the appropriate thing for us to do. Otherwise--we do not--Defense doesn't want a mistrial, but we're going to move in that direction if we don't sort of spend every few moments apologizing, and I don't think you'd like to do that. You made a nice joke yesterday. Nobody laughed. Nobody laughed. There may have been a couple police snickers, but nobody laughed.

THE COURT: I met three smiles from the regulars.

MR. COCHRAN: Well, your Honor, smiles, your Honor, well, that's a far cry from the laughter that we used to get. You met that also. So I'm just saying, it seems to be time to do that. We've thought about it and would ask your Honor to consider doing that. We would also like--if this is three days' worth of witnesses, that means Wednesday, Thursday, Friday. Then we need to know the witnesses after that. Also, with regard to these witnesses, we need an offer of proof with regard to who these witnesses are, what they're going to be testifying about. And Don Thompson already testified for us. He is the officer who handcuffed Mr. Simpson within 30 seconds of his arrival back on his property. He's already been called. So we need to know what they're going to be saying as soon as possible to keep from delaying further, your Honor.

THE COURT: Why don't you consult--have Mr. Douglas consult with Mr. Darden, get the offers of proof as to the names that Miss Clark has just given to us rather than take up the court's time at this point. I'm sure that those two gentlemen can work it out between themselves as to who's who.

MR. COCHRAN: Because there are some people where there are no reports at all, your Honor. Thank you, your Honor.

MS. CLARK: The people I just mentioned, they have full reports on. Is the court inclined to entertain the sequestration motion, your Honor?

THE COURT: I've just entertained it. I've just heard it. Do you have--

MS. CLARK: I guess I should respond. I'll be brief. I think this takes the cake for the most transparent motion ever made by the Defense. Now that they've had everything on Fuhrman unleashed, everything that could possibly be said and done about this man has been all over the community, all over Los Angeles, there are posters, there are flyers, there are articles in the papers everyday, news, television programs about this all the time, I wonder why the Defense wants the jurors to be unsequestered. I wonder if I can figure this one out. I think anybody can figure this one out. This is, of course, the most--the worse time for the jurors.

THE COURT: Miss Lewis would say this is a real no brainer, as Miss Lewis would say.

MS. CLARK: I wasn't even attempting to say that, but I know it's obvious to your Honor. It's obvious to all of us what they're trying to do here, and it's absolutely improper, and I don't even think we need to address it any further because it's so obviously improper. And I will tell you one thing. We will rest by Friday unless the Defense motions prevent it because we have voluntarily pared back our list, having seen the fatigue of the jurors and their desire to go home, which we fully understand, believe me, fully. So we will rest by Friday, your Honor. It's up to the Defense to finally rest and stop playing games, filing spurious motions, asking for more time on matters that they've been fully prepared on for months. Let's just get this thing done. We'll call Gary Sims, whose testimony will take 10 minutes. I'll give you an offer right now. Gary Sims' testimony, if it takes more than a half hour, we will all be surprised.

THE COURT: No. We are talking--I'm not interested in that. Just the continued full sequestration of the jury as opposed to the modified sequestration suggested by Mr. Cochran and the plan originally contemplated by the court.

MS. CLARK: The answer is not to unsequester a jury that will be released into the community that is rife with inadmissible matter, very inflammatory matter. That's exactly why they want them released. The answer is to shut this case down. The answer is to end this trial. That's what we need to do. We need to stop with the endless motions and the endless arguments and the endless, you know, requests for time that--for lack of discovery. Now they have it. They've got it all. They have everything with the exception of the impressions that the Defense complains of that will be made available to them that they already know about. Their witness testified to it. Now, with respect to our timing, I've indicated to the court that unless we get stopped up by a lot of Defense motions, we will be done by Friday, and then the Defense has to be made to rest at some point. They have to end their case. And whatever witness they have coming--obviously a witness coming this late in the game, we are going to have to scrutinize for relevance and admissibility. This shouldn't take very long. If it's admissible, fine. If it's not, fine, you know. And part of the admissibility issue with a witness newly discovered, it may well be that that witness may engender a mini trial. We have to indicate--we'd have to bet right now that won't take that long. So if everything goes according to the way it should and everybody just puts on their witnesses and stops talking, we will finish this case, both Defense and the Prosecution, by Tuesday of next week.

THE COURT: All right. Thank you.

MR. COCHRAN: I must say--I know the hour is late. Thank you. We--I'm just dealing with this motion. We're serious about this motion. I recall when we were picking this jury when the Prosecution, city attorney and the police released that 911 tape, they weren't worrying about what may cause problems for this jury. Now we're worrying about what happens in this community. What we are worried about is getting this case over with to the jury. We agree on that aspect. But counsel says on the one hand, we've got to stop all these motions. She says this mystery witness, whom they know about already, was--

THE COURT: We are arguing sequestration at this point.

MR. COCHRAN: Mr. Neufeld saw her--

THE COURT: Counsel, let's not get into this.

MR. COCHRAN: At any rate, the point is, they know who this witness is. They should have told us about it at any rate. So they're saying on the one hand we're going to have all these admissibility hearings as they did with every one of our witnesses--keep in mind, Judge, we took--they took what, six, seven months. We took like eight weeks. I mean, we can't even compare that. I'm very serious about this. I would ask you not to give--I don't think this is a no brainer. I think when you see the fatigue on those people's faces, not paying much attention, staring off into space, coupled with the problem that lady has, coupled with the problem the juror had this morning, we are at a real crises point. It seems to me--so I throw this out for your Honor's wisdom and thinking. I don't think it's a no brainer when you've spent this much time, this much evidence. If you think--I would be real pleased to finish this case, their part by Friday. If they do that, we'll finish our part as soon thereafter as possible, but I don't think it's a no brainer is the point I want to make.

THE COURT: Thank you, counsel.

MR. SCHECK: Your Honor, I've not seen reports from Dr. Popovich, Mr. DeForest.

THE COURT: I didn't hear their names, counsel.

MR. SCHECK: The other thing is, I have one thing that will help you.

THE COURT: What's that?

MR. SCHECK: I have the page references for Dr. Gerdes' testimony.

THE COURT: I have them already.

MR. SCHECK: You have them?

THE COURT: I have them.

MR. SCHECK: Finally, could I request of the court--I will not have an expert--if they are going to deliver these things by 12:30 tomorrow from Mr. Deedrick, I have one expert here and I won't have an opportunity to send them out.

THE COURT: Counsel, we've litigated this issue already.

MR. SCHECK: I understand. What is the ruling going to be? Are they going to be allowed to put him on in the afternoon after I alone look at these experiments?

THE COURT: You've heard the ruling, counsel. You've heard the ruling. All right. 8:30 tomorrow morning, we'll take up scope on the 6-17 incident.

MR. SCHECK: I'm requesting an adjournment, your Honor, until Thursday, Monday for Mr. Deedrick.

THE COURT: Well, you haven't heard Mr. Deedrick yet. We're in recess.

(At 6:10 P.M., an adjournment was taken until, Wednesday, September 13, 1995, 9:00 A.M.)

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

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

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, September 12, 1995 volume 221

Pages 45192 through 45503, inclusive

(Pages 45190 through 45191, inclusive, sealed)

(Pages 45270 through 45281, inclusive, sealed)

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Kelli Sager, Esquire Douglas E. Mirell, Esquire, mark D. Rosenbaum, Esquire Matthew Schwartz, Esquire Ron Regwan, Esquire James K. Hahn, city attorney Mary Thronton House, assistant city attorney

ALSO PRESENT: William J. Hadden, Esquire Anne Egerton, Esquire

I N D E X

Index for volume 221 pages 45192 - 45503

Day date session page vol.

Tuesday September 12, 1995 A.M. 45192 221 P.M. 45331 221

PROCEEDINGS

Motion re pitchess 45263 221

LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-CD Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE (402) witnesses direct cross redirect recross vol.

Sims, Gary 221 (Resumed) 45193BS 45216RH

PEOPLE'S (Rebuttal) witnesses direct cross redirect recross vol.

Rubin, Richard 45293D 221 (Resumed) 45334 45340BB 45393D 45413BB

EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

607-A - photograph 45304 221 of a close-up view of the Defendant with gloved hands holding an umbrella with two red circles (Computer printout)

614 - Photograph 45332 221 of the Defendant holding a microphone with his right glove hand

615 - Videotape 45431 221 of the interview of Thano Peratis by Deputy D.A. Hank Goldberg

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DEFENSE for in exhibit identification evidence page vol. Page vol.

1372 - 1-page document 45359 221 entitled "Bonis Golden series `never stop' machines"

1373 - 1-page document 45369 221 entitled "Embroideries, seams and sizes"

1374-A & 1374-B - 45459 221 each a photograph of a pair of blue jeans with red substance