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: Back on the record in the Simpson matter. The Defendant is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Miss Clark and Mr. Darden. The jury is not present. Counsel, anything we need to take up before we invite the jury?

MR. SCHECK: Yes, your Honor. I think outstanding we still had the question of whether or not the Defense would be allowed to recall Gary Sims, and I should make an offer with respect to that.

THE COURT: Okay.

MR. SCHECK: If Mr. Sims were called to testify to the witness stand, he would testify about a wet transfer that went from surface 1 to surface 2 to surface 3 on the B sock. We've had extensive testimony about the--what we've called, I guess, the A sock, but this would be the B sock.

THE COURT: That was Professor MacDonell's testimony, correct, amongst others?

MR. SCHECK: Professor MacDonell and Dr. Lee testified about the A sock.

THE COURT: Right.

MR. SCHECK: What we have now is Gary Sims making an observation that there was a wet transfer--

THE COURT: Out of curiosity, why did we wait until this late point to--

MR. SCHECK: That is what the Prosecution's position is. I should add, incidentally, your Honor, that the stain in question on the B sock is also one that typed with PCR markers as being consistent with Nicole Brown Simpson. On July 17 we received a report from Dr. De Forest and Gary Sims which noted this wet transfer and we did not receive photomicrographs of this until some later point in time. I readily concede on July 17 we were aware that they had made these observations, but the photomicrographs of exactly what they saw and the pictures that they took were not made available for quite some time. I'm sure as the court recalls, they were proffered to the court, as I understand it, and you would have the best information, at a 1054.7 by Mr. Hodgman, and then as I recall the court noting you had them for quite some period of time because you couldn't figure out what they were because they weren't labeled. And I think that the photomicrographs--

THE COURT: They weren't labeled and they were just notes, so I had to have them interpreted for me.

MR. SCHECK: Right. And the other thing I will note, however, just to make sure that the record is completely clear, there was some on Mr. Sims' original notes about seeing stains, but the significance of the wet transfer and the significant findings of the wet transfer, and most of all, the photomicrographs, were not available until later. I should note that one of the great ironies in my judgment in this case is that we wound up giving the Prosecution all of Dr. Blake's pictures, all of Dr. Lee's pictures, all the pictures, and to this day in dribs and drabs we get Mr. Sims' pictures and only a few of them, one on redirect examination at the last moment, and then these photomicrographs which we would submit are exculpatory evidence at the 11th hour.

THE COURT: So the basis of your argument--excuse me, Mr. Scheck. Let me just ask you a question. So the genesis of your inquiry as to this wet transfer was Dr. De Forest's notes?

MR. SCHECK: Yes. The joint examination of Sims and De Forest on July 17th and the ultimate basis for us doing it was the set of the photomicrographs ten days ago.

THE COURT: People.

MS. CLARK: Well, your Honor, I don't know how Mr. Scheck can argue that. The notes turned over to us that were made by Mr. MacDonell and Mr. Lee reflect that--that were made during the examination by Mr. MacDonell and Mr. Lee in February of 1995 reflected they saw sock B, found the stains they are talking about, made notes and indicated explicitly the stain they want to go into now on sock B. In February of `95 they knew about that. They chose, they elected not to go into that with their own expert on the witness stand, Mr. MacDonell, and elected specifically to limit their inquiry to sock a even though they had full--they had their own examination, their own photographs, their own notes and conclusions concerning that sock well in hand for months. July 17th added nothing. Now Gary Sims' notes reflect all of these stains that we are talking about on both socks and they were made in November of `94 and turned over immediately thereafter. So the Defense has had notice of this since November of `94. Their own expert's reexamination which occurred on February 16, 1995, revealed that they had similar observations. Their conclusions of course about the significance of those observations are vastly different than our experts. But July 17th, even if we assume that they knew nothing about it until July 17th when Gary Sims Greg Matheson and Peter De Forest looked again at the same stains and again made the same observations that were made earlier in November by Gary Sims, even if we assume that that is what triggered the Defense inquiry, it was still during their case. Bear in mind, your Honor, when did the Defense conditionally rest? Basically rest? What was that, a week ago? Week and a half ago? And they want to tell us that not until--that they conducted their case for more than two months and during that time, after having had two months, not only the reports of their experts since February, but our experts since November, and then again in July, they are only thinking of it now. The Defense has given you absolutely no reason to permit this, but I can promise the court this: This is very confusing stuff, and if they put on Gary Sims to give his conclusion, the People, in all fairness, will have to rebut. We have to rebut so the jury is not left with a misimpression about what the significance of these stains are. We will have to call Greg Matheson, we will have to call Peter De Forest.

THE COURT: What is the possible misapplication of this evidence that the jury might be inclined to take from this?

MS. CLARK: Well, the Defense is obviously going to want to present this as evidence of planting again, and what they are going to do, what the--the pernicious aspect of this is that Gary Sims is not a blood spatter expert. He has certain observations. His opinion is that of course it was not planted and the appearance of what he sees on that stain does not support that theory, and yet he will be substantially attacked by the Defense if he attempts to render any opinion as to the logic of inferring planting from the appearance of the surface 3 of that sock.

We will then have to call two others to explain their theories as to what could have occurred to cause the transfer. We have Peter De Forest who is a blood splatter expert and Greg Matheson whose testimony is relevant because he saw the socks earliest in time and can testify to the nature of their handling and packaging and care that will give substantial reasons for the jury to understand why this is not evidence of planting at all, but a very simple and logical explanation can be given. So you know, I mean, we are going to talk about another few days of testimony. As the court knows, expert testimony takes a very long time to elicit and counsel have been very thorough in examination and cross-examination all for a piece of evidence that they had for months and elected not to use. This is willful delay, your Honor. If the Defense thought this was so all mighty important, they had every opportunity to put it in during their case in chief and elected not to. And our expert's reexamination added nothing to their knowledge on July 17th. Their own experts made those notes in February. They knew--

THE COURT: Is there anything about your rebuttal case that would open the door here?

MS. CLARK: With respect to the socks? I haven't even had a chance to think about that. I would have to go and confer. I'm sure that it would because we are talking again about the whole planting theory which goes back to the conspiracy theory. I'm so tired, your Honor. I'm going to need a moment to consider the full ramifications. I'm talking--when I say I'm going to need to call these two witnesses--

THE COURT: This has been a rather mind-numbing experience.

MS. CLARK: Well put. I agree.

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

MS. CLARK: In any case, your Honor, I'm only talking about the limited direct rebuttal we will need to present to this testimony and that is just that. I don't--and I'm not even sure what this evidence adds to the Defense case. They have presented their theory through the stain on sock A, and if they really thought sock B was that important, they certainly had the knowledge, they had the witnesses right on the witness stand, Dr. Lee and Mr. MacDonell, right in their notes. The Defense is not telling you they didn't know. This is a fact. We really want a better closure. I mean, we can go on for days like this searching for a better closure, your Honor, and I don't know what it adds except a lot of time to a very tired jury and a lot of very technical testimony that will be needed to sift through the implications the Defense seeks to draw. I would need a little time to ponder what additional testimony the People would need or be entitled to present as a result of the door opened by this.

THE COURT: Mr. Scheck.

MR. SCHECK: Just two brief comments, your Honor. I realize that it is very tiring experience for all of us, but I hope this is not a preview about how facts are stated in closing argument. The fact of the matter is that there was an examination in February by Dr. Lee using a microscope from the LAPD that, I believe the testimony was, was constantly out of focus and didn't go more than two times, so I think that she is just misstating what kind of observations could be made. Yes, stains were seen on the sock--both socks, they were observed, but not with the level of particularity that are required to make an evaluation of these wet transfers. I will agree that Gary Sims is not a blood spatter expert and we are only bringing him in for observation of scientific fact. And I certainly don't expect to hear the Prosecution argue--put in their closing argument that he was a blood spatter expert. Indeed, I think that is what makes this more significant, that when the Prosecution's own blood spatter expert, Peter De Forest, saw it on July 17th, the full significance of the observations became apparent.

THE COURT: Well, Mr. Scheck, if the--if the Defense did in fact, though, have access to the sock and if Dr. MacDonell did have the opportunity to look at this and if bloodstains were noted on the interior of the sock, I mean, isn't that the whole point of this?

MR. SCHECK: Well, in terms of their notes, it is not accurate to say that they made those particular observations when they looked at the sock in April with respect to the B sock. Secondly, I must say that I do reject the notion that if a--if Prosecution experts, upon further examination of the B sock, after Defense has raised issues about the A sock, come up with findings that are exculpatory, obviously exculpatory, they even present it to the court in chambers because they knew it was exculpatory, that is why we haven't seen Dr. De Forest in this case, I would submit, or it is certainly a fair implication. It doesn't seem to me that the argument that, well, the Defense experts, you know, had some kind of limited opportunity under certain circumstances to make observations of the sock, therefore they should be precluded from even putting on exculpatory evidence that the Prosecution experts found.

THE COURT: But this has to be done in a timely manner, though, is the concern.

MR. SCHECK: Well, I mean--you know--

THE COURT: Because at this point we are talking about calling Mr. Simpson down from Berkeley and then I assume that this is going to require Dr. De Forest from New York.

MR. SCHECK: Not from our point of view. What we needed were the pictures, proof.

THE COURT: All right. Do you have the photomicrograph of this particular surface?

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Not with us.

MR. SCHECK: Not with us. We have them.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: And Mr. Sims has a set. We have discussed those with him on the phone.

THE COURT: Oh, I understand that. I would like to see it.

MR. SCHECK: Well, I thought you had seen it. You gave it back to us.

THE COURT: I would like to refresh my recollection as to what is there to see how significant it is.

MR. SCHECK: Well, I mean, I--

THE COURT: I mean, you are asking to call the witness but you don't have the stuff available?

MR. SCHECK: Well, no. We asked to him bringing the originals with him.

MS. CLARK: Your Honor, may I ask that the court look at the notes of Dr. Lee concerning his examination of the socks in February and April? I think the court will then see clearly that Dr. Lee saw exactly what they want to now present in mid--late September.

THE COURT: Does it say wet transfer?

MS. CLARK: Well, it circles--I would like for the court to see it. It is one page, a diagram. It is very clear that they knew what this was and the significance of it.

THE COURT: You got it?

MS. CLARK: I'm having it brought down right now.

THE COURT: Do you have Mr. Sims' photomicrographs available?

MS. CLARK: No, I don't. I didn't know there were any. This was the first I've heard about them.

THE COURT: All right. Well, let's do this, counsel: Let's proceed with Commander Bushey's testimony with the jury. After we conclude that, hopefully these materials will be available and I can determine that. All right.

MR. NEUFELD: Judge--

THE COURT: Yes. Mr. Neufeld, good morning.

MR. NEUFELD: Miss Clark and I have entered into a stipulation regarding the syringe and we will introduce the syringe and we can do that at your pleasure.

THE COURT: All right. Why don't we do Commander Bushey's testimony and then we will do the stipulation regarding the syringe and then we will see where we are with Dr. Lee's notes. All right.

MR. COCHRAN: May I ask one question? I just want to get some idea if we can determine regarding Mr. Sims, maybe we can make some calls and make sure that if you can let us call him, he can be here this afternoon.

THE COURT: This afternoon?

MR. COCHRAN: As soon as possible. Do you want us to make some calls and check that out also? I think it would be wise to do that. We would be in a position to rest at that point, conditionally rest.

MS. CLARK: I've got to find out Mr. De Forest's turn-around and then we are going to have to get Greg Matheson as well. We are going into next week with this one, Judge.

MR. COCHRAN: The question is--while I'm still up here talking, the question is you have to make that judgment. You have not been loathe to exclude witnesses where you thought it was appropriate, and if they have nothing to say, they have to make an offer of proof. It is not like they can threaten you with witnesses. We have made our presentation. I'm saying, out of an abundance of caution, let's see if Sims is available this afternoon.

THE COURT: Let's do this: While we are going forward with Commander Bushey and the syringe vial, perhaps we can have the attorneys otherwise not occupied check on the availability of these people so we can have some guess.

MR. COCHRAN: Thank you very much at this point.

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

(Brief pause.)

MS. CLARK: Your Honor, at some point are we going to hear the Defense rest?

MR. COCHRAN: Are we going to hear the Prosecution rest?

MS. CLARK: You've already put on a rebuttal case. We still haven't heard Defense rest. It would be nice. Closure, you know.

THE COURT: That will happen this week.

MR. COCHRAN: We are going to rest this week, your Honor. The Defense never rests, bit we are going to rest this week. We are waiting on the Supreme Court to tell us one time item, too, that will help us decide whether we are going to rest. We are waiting imminently for the Supreme Court to speak on this issue, so that is another reason, counsel.

THE COURT: We'll wrap it up this week and I'm sincerely hoping to at least, if we don't instruct Friday, then instructing on Tuesday and starting with arguments

(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. And let the record reflect that we have been rejoined by all the members of our jury panel. Good morning again, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: Ladies and gentlemen, one of the things that the trial court is empowered to do is to change the order of witnesses and change who gets to present evidence at what particular time. And if you recollect, I've required the Prosecution to start their rebuttal case before the Defense formally rested because there were some issues that were still left open. At this time I'm going to allow the Prosecution to call a witness in rebuttal to some of the Defense case that we just heard, again out of order, but in order to use your time and our time most efficiently. All right. Miss Clark.

MS. CLARK: Thank you, your Honor. The People call Commander Bushey.

Keith D. Bushey, called 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.

COMMANDER BUSHEY: I do.

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

COMMANDER BUSHEY: Keith D. Bushey, B-U-S-H-E-Y.

THE CLERK: Thank you.

THE COURT: Miss Clark.

MS. CLARK: Good morning, ladies and gentlemen.

THE JURY: Good morning.

DIRECT EXAMINATION BY MS. CLARK

MS. CLARK: Sir, please tell is what your job is.

COMMANDER BUSHEY: Commander, Los Angeles Police Department.

MS. CLARK: And where are you assigned, sir?

COMMANDER BUSHEY: I am presently the commanding officer of the personnel group.

MS. CLARK: Can you tell us what your duties are and what your responsibilities are.

COMMANDER BUSHEY: My present duties as the commanding officer of personnel group provide me in a position of oversight over several other department commands that deal with recruiting, hiring, promotions, transfers, equal opportunity, the reserve corps, medical issues and employee assistance.

MS. CLARK: Okay. Were you so assigned on June the 12th, 1994?

COMMANDER BUSHEY: No.

MS. CLARK: Can you tell us what your assignment was on June the 12th and 13th of 1994?

COMMANDER BUSHEY: At that time I was the assistant commanding officer of operations West Bureau.

MS. CLARK: And what were your duties at that time, sir?

COMMANDER BUSHEY: As the assistant commanding officer of operations West Bureau I was second in command to a deputy chief who was responsible for roughly one/fourth of the city of Los Angeles for the delivery of conventional police services to include patrol and investigative, and that portion of the city encompassed the geographic areas of Hollywood, Pacific, West Los Angeles, Wilshire and also the West Traffic Division.

MS. CLARK: Is that all?

COMMANDER BUSHEY: I specifically had functional responsibility over the detective function, and in the absence of the commanding officer, who was ill on frequent occasion, I served as the commanding officer of that bureau.

MS. CLARK: Were you then acting as the commanding officer on the night of June the 12th and early morning hours of June the 13th, 1994?

COMMANDER BUSHEY: I was acting as the assistant commanding officer on that evening.

MS. CLARK: When you say that you had supervisory duties over the detective activities--

COMMANDER BUSHEY: Not line supervision, but I had functional supervision over all investigative activities in that portion of the city.

MS. CLARK: And what does that mean in terms of what you supervise?

COMMANDER BUSHEY: Oversight over the investigative function, the virtual investigation of all crimes that would be handled at the area level, to include the training, the deployment of detective personnel, the--ensuring that the commanded resources they needed with which to carry out their functions and overall oversight of the investigative function.

MS. CLARK: All right. Sir, directing your attention then to the early morning hours of June the 13th, 1994, did you receive a phone call or speak with Detective Phillips?

COMMANDER BUSHEY: Yes, I did.

MS. CLARK: And do you recall approximately when that was?

COMMANDER BUSHEY: To the best of my recollection, and I'm sure that I'm pretty close, probably right around 2:30 in the morning.

MS. CLARK: And when I say Detective Phillips, are you aware of who I mean, Detective Ron Phillips?

COMMANDER BUSHEY: Yes.

MS. CLARK: You know him personally, do you, sir?

COMMANDER BUSHEY: I do.

MS. CLARK: And who was in charge of that crime scene when you spoke to him at approximately 2:30 on the early morning hours of June 13th?

COMMANDER BUSHEY: He was, Detective Phillips.

MS. CLARK: And he--why did he call you?

COMMANDER BUSHEY: I was called as part of the notification process. Within the police department when certain things occur, certain notifications need to be made, and the instance of a particularly noteworthy crime, one that is likely to attract media attention, one of the things that takes place is the bureau is notified and I was the right person to notify.

MS. CLARK: Okay. So was that standard operating procedure then?

COMMANDER BUSHEY: Yes.

MS. CLARK: Are they required also to keep you apprised of the developments of the case?

COMMANDER BUSHEY: Significant developments, yes.

MS. CLARK: Now, sir, had you had any previous experience with a high-profile case?

COMMANDER BUSHEY: Yes.

MS. CLARK: And what case was that?

MR. COCHRAN: I object, irrelevant and immaterial.

THE COURT: Overruled.

COMMANDER BUSHEY: The Belushi death.

MS. CLARK: John Belushi?

COMMANDER BUSHEY: That's correct.

MS. CLARK: Was there some particular experience with respect to that, sir, concerning the habit or practice of notification to the next of kin?

COMMANDER BUSHEY: Yes.

MS. CLARK: Can you tell was that was?

MR. COCHRAN: Object, your Honor, irrelevant and immaterial.

THE COURT: Overruled. I take it that we are going to relate this directly?

MS. CLARK: Exactly.

THE COURT: Briefly?

MS. CLARK: Very.

COMMANDER BUSHEY: The Belushi situation was very troubling for me personally because the time frame from the time that his body was discovered until the media had that information was very, very short, and I felt very bad at the number of his relatives who most certainly learned about his death through the media rather than through the family notification process. And as a result of that and other experiences one of the things that I've always felt very strongly about--

MR. COCHRAN: Your Honor, I think he has answered the question.

THE COURT: He has answered the question. Next question.

MS. CLARK: Now, after you spoke to Detective Phillips that night, sir, did you get another call from an officer at the scene?

COMMANDER BUSHEY: Yes.

MS. CLARK: And who was that?

COMMANDER BUSHEY: Captain Connie Dial.

MS. CLARK: And who is she?

COMMANDER BUSHEY: She at that time was the commanding officer of West Los Angeles Patrol Division and she was the ranking officer from West L.A. area who responded to that scene.

MS. CLARK: Now, when you spoke to Detective Phillips the first time, I think you indicated approximately 2:30 A.m.--by the way, that is an approximation, sir?

COMMANDER BUSHEY: That's correct.

MS. CLARK: When you spoke to Detective Ron Phillips at that time did you give him some command or order?

COMMANDER BUSHEY: Yes.

MS. CLARK: And what was that?

COMMANDER BUSHEY: Well, I gave him a--I gave him a suggestion and I gave him an order. There were two pieces of information that I conveyed to Detective Phillips.

MS. CLARK: What was the suggestion, sir?

COMMANDER BUSHEY: The suggestion was that the case was--had all the appearance of--

MR. COCHRAN: I object. This is hearsay, your Honor.

THE COURT: Overruled.

COMMANDER BUSHEY: Looked like a big case, a lot of media attention, no suspect, and it had the potential to overwhelm the resources of--

MR. COCHRAN: Your Honor, this is hearsay.

THE COURT: Overruled. It is not hearsay. He is telling us why he did this and what the suggestion was.

MS. CLARK: Right.

MR. COCHRAN: Thank you, your Honor.

COMMANDER BUSHEY: Had the potential to overwhelm the resources available within an area homicide unit, and I told Detective Phillips to be sure to let me know if he needed resources beyond that which he had available to him at that time.

MS. CLARK: That was the suggestion?

COMMANDER BUSHEY: That's correct.

MS. CLARK: And then you gave an order?

COMMANDER BUSHEY: That's correct.

MS. CLARK: And what was the order?

COMMANDER BUSHEY: I told him to find O.J. Simpson just as soon as humanly possible and notify O.J. Simpson of his ex-wife's death.

MS. CLARK: And why was that an order?

COMMANDER BUSHEY: Certainly there is always a notification, but the sooner we can make the notification to a principal in this instance, Mr. Simpson, it stands to reason that the family notification will take place and I wanted to do everything humanly possible to minimize the number of her relatives, nieces, nephews, uncles, aunts, that would hear it over the media the next morning. I wanted her relatives to learn of her death through the family and not through the media, and the sooner we could make that notification, the more likely that would occur.

MS. CLARK: And so why was it that you ordered them to contact Mr. Simpson, as opposed to her family?

COMMANDER BUSHEY: Well, the ex-husband, but probably the big thing is we had his children there and I was thinking of dual custody type situation, and it seemed to me to--seemed to reason that it would be less difficult to contact him. Not only that, but he is a prominent personality and seemed like somebody that we could get ahold of right away, but once again, the children there caused that to seem like a very good and necessary thing to do.

MS. CLARK: And first thing to? Do.

COMMANDER BUSHEY: Absolutely very first thing.

MS. CLARK: When you said started the family notification process by notifying Mr. Simpson, what do you mean by that?

COMMANDER BUSHEY: Well, I think it stands to reason, and certainly it does in my thirty years of police work and fifty years as being a human being, I recognize within a family very, very good news and very, very bad news travels very rapidly, and the sooner we can notify, the sooner the rest of the family is likely to be aware of what occurred.

MS. CLARK: You mean you would expect him to call them?

COMMANDER BUSHEY: Certainly.

MS. CLARK: Now, you--after you had that conversation and gave that suggestion and then that order to Detective Phillips, you indicate that you got another call from Captain Connie Dial?

COMMANDER BUSHEY: That's correct.

MS. CLARK: And approximately what time was that?

COMMANDER BUSHEY: To the best of my recollection probably an hour, perhaps an hour and a half later.

MS. CLARK: Was there some event occurring at the particular time that you got the call from her with respect to which division would be handling this case?

COMMANDER BUSHEY: Yes.

MS. CLARK: And what was that, sir?

COMMANDER BUSHEY: The decision had been made that indeed the resources--West L.A. Homicide may have been overwhelmed by the case or may be overwhelmed by the case and a case was made and approved that robbery/homicide take over the investigation and that is when Detectives Lange and Vannatter responded to the scene and did formally take over the investigation.

MS. CLARK: Now, when you received the call from Captain Dial, did she inform you as to whether anyone from robbery/homicide was present?

COMMANDER BUSHEY: I believe so. I believe that at that time both Vannatter and Lange were present.

MS. CLARK: And at the time that she was speaking to you, sir, did she describe what she was seeing at the crime scene?

MR. COCHRAN: Object, your Honor, hearsay.

THE COURT: Overruled: Yes or no.

COMMANDER BUSHEY: Yes, she did.

MS. CLARK: Excuse me.

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

MS. CLARK: In the hierarchy of the police department, sir, how does Detective Phillips--how did he rank with respect to his position and yours as of June the 13th, 1994?

COMMANDER BUSHEY: Detective Phillips was and is a lead homicide investigator in West Los Angeles Detective Division. He holds the position of Detective III. He works for Lieutenant Frank Spangler who is the commanding officer of West Los Angeles Detectives. Lieutenant Spangler works for Captain Robert Kurth who is the commanding officer of West area. Off to the side, but as a partner and leadership to Commander Kurth, is Captain Connie Dial who commands the patrol division but who shares call-out responsibilities with Captain Kurth. Captain Kurth in turn reports to operations West Bureau and at that time his--would have reported to myself or to Deputy Chief Frankle, whoever was available at the time.

MS. CLARK: I stopped counting. So that is what, like four levels between you?

COMMANDER BUSHEY: At least three.

MS. CLARK: Okay. Could Detective Phillips refuse to follow any order given by you, sir?

COMMANDER BUSHEY: No.

MS. CLARK: Now, when you spoke to Captain Dial later on, could you get some sense from your conversation with her as to where she was as she spoke to you?

COMMANDER BUSHEY: Absolutely.

MS. CLARK: And what was that?

COMMANDER BUSHEY: She was standing at the crime scene and I know that because she was describing the scene to me.

MR. COCHRAN: Object as hearsay, your Honor.

THE COURT: Overruled.

MS. CLARK: Now, at that time you knew that Detective Vannatter and Detective Lange were there because robbery/homicide had taken over?

COMMANDER BUSHEY: Yes.

MS. CLARK: And did you inquire of her as to whether or not you had a suspect yet?

COMMANDER BUSHEY: Yes, I did.

MS. CLARK: And what did you learn, sir?

MR. COCHRAN: Object, your Honor. This is hearsay.

THE COURT: Sustained.

MS. CLARK: She responded to you, did she not?

COMMANDER BUSHEY: Yes.

MS. CLARK: Did she tell you O.J. Simpson was a suspect?

MR. COCHRAN: I object. This is hearsay, your Honor.

THE COURT: Sustained.

MS. CLARK: Okay. After you inquired of her as to whether or not there was a suspect, sir, based on what she told you, did you order anyone to be arrested?

MR. COCHRAN: Your Honor, I object. I object.

THE COURT: Overruled.

MR. COCHRAN: Hearsay, your Honor.

THE COURT: Overruled.

COMMANDER BUSHEY: No.

MS. CLARK: And what was your state of mind after your conversation with her?

MR. COCHRAN: That is irrelevant and immaterial.

THE COURT: Sustained.

MS. CLARK: Goes to explain subsequent conduct, your Honor.

THE COURT: Sustained.

MS. CLARK: I'm sorry.

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

MS. CLARK: All right. In the conversation that you had with Captain Dial, did you give another order?

COMMANDER BUSHEY: I asked some questions and I gave--I reiterated my previous order, that Mr. Simpson be notified as soon as possible.

MS. CLARK: And during--that was during the course of the conversation when you inquired as to whether or not there was a suspect?

COMMANDER BUSHEY: That is correct.

MS. CLARK: And having heard her response, it was your reiteration of the order given previously?

MR. COCHRAN: I object, your Honor, as hearsay.

THE COURT: Sustained. We have already gone through this.

MS. CLARK: After you got her response, sir, did you reiterate the order to notify Mr. Simpson?

MR. COCHRAN: Been asked and answered.

THE COURT: Sustained. We have already asked this question, counsel.

MS. CLARK: All right. Now, you had previously ordered Detective Phillips to make sure he made personal notification; is that right?

COMMANDER BUSHEY: That's correct.

MS. CLARK: And did you issue an order with respect to robbery/homicide?

COMMANDER BUSHEY: Yes.

MS. CLARK: And what was that order?

COMMANDER BUSHEY: I explained to Captain Dial that even though robbery/homicide had taken over the investigation and even though robbery/homicide was not in the--the chain of command of West Bureau, as a staff officer of the Los Angeles Police Department I reiterated my order and I wanted robbery/homicide to find Mr. Simpson as soon as possible and ensure that the notification took place, and I reiterated my rationale as to why I insisted that occur.

MS. CLARK: Okay. Was that a suggestion, sir?

COMMANDER BUSHEY: That was not a suggestion; it was not a hint; it was an order.

MS. CLARK: And was it an order that you made very clear and very--you were very adamant about?

COMMANDER BUSHEY: Unequivocally clear.

MS. CLARK: Now, you are aware that four detectives went to make notification to Mr. Simpson?

COMMANDER BUSHEY: Yes.

MS. CLARK: And did you approve of that?

COMMANDER BUSHEY: Certainly.

MS. CLARK: Is that unusual?

COMMANDER BUSHEY: No, not at all.

MS. CLARK: And why is that?

COMMANDER BUSHEY: Well, I think each case is a little bit different and in this case we had some--some situations that had the potential of being very time-consuming. We had--robbery/homicide I don't believe was familiar with that area. We have a couple of detectives who are familiar with that geographic area.

MR. COCHRAN: Speculation, your Honor.

THE COURT: Overruled.

COMMANDER BUSHEY: We don't know what type of--how many people are going to be where Mr. Simpson is. We don't know what degree of grief we are going to have to deal with. It may be and frequently is that we have to leave somebody with a grieving relative until a clergyman or someone else shows up. We have a couple children involved. And those can become very complex issues. There is a likelihood that we might interview witnesses and so it is not at all unusual that we have four detectives respond to a situation of that nature.

MS. CLARK: Okay. Now, was there in some sense preferential treatment, sir?

COMMANDER BUSHEY: Yes, I think so.

MS. CLARK: And why is that?

COMMANDER BUSHEY: Well, the Los Angeles Police Department always wants to do the very best job we can, there is no doubt about that, and there are some instances--

MR. COCHRAN: Move to strike that as non-responsive.

THE COURT: Overruled.

COMMANDER BUSHEY: There are some instances where realistically you know this is going to be particular scrutiny focused on a particular investigation and this had all the earmarks of something that would have a lot of media attention and it caused us to even be more determined to do the best job we possibly could.

MS. CLARK: And did that knowledge play any part in your specific and strong order to make personal notification to Mr. Simpson?

MR. COCHRAN: This is leading and suggestive.

THE COURT: It is.

MS. CLARK: What, if any, part did that concern play in your order to have Mr. Simpson personally notified?

COMMANDER BUSHEY: There was no doubt in my mind that as soon as the media became aware of this tragedy it would be all over, you know, virtually every news--every TV station and every radio station. And I saw us in a race against time to make sure that that family was notified.

MS. CLARK: First?

COMMANDER BUSHEY: First, that's correct.

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

MS. CLARK: Thank you, sir.

COMMANDER BUSHEY: Thank you.

THE COURT: Mr. Cochran.

CROSS-EXAMINATION BY Mr. COCHRAN

MR. COCHRAN: Good morning, Commander Bushey.

COMMANDER BUSHEY: Good morning. How are you?

MR. COCHRAN: Doing fine, are you how?

COMMANDER BUSHEY: Good, thank you.

MR. COCHRAN: Good morning, ladies and gentlemen.

THE JURY: Good morning.

MR. COCHRAN: Now, Commander Bushey, you have described for us that you were the commanding officer in West Los Angeles back on June 12th of 1994. You were no. 2 to the deputy chief. Was it Ron Frankle at that point?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: He was your boss at that point; is that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: You just described for us that you had some line responsibility for the detective division; is that correct?

COMMANDER BUSHEY: Functional.

MR. COCHRAN: Functional responsibility. And one of the detectives who worked in your functional responsibility was mark Fuhrman; isn't that correct?

COMMANDER BUSHEY: That's correct.

MS. CLARK: Objection, beyond the scope.

THE COURT: Sustained.

MR. COCHRAN: Well, your Honor, he brought out that he had functional responsibility.

THE COURT: Sustained. Sustained.

MR. COCHRAN: Now, you--with regard to this--this situation, you had been to New Orleans or just returned home from New Orleans, Louisiana; is that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: What time did you get home on that day?

COMMANDER BUSHEY: Probably around midnight.

MR. COCHRAN: And you received a call about 2:30 in the morning; is that correct?

COMMANDER BUSHEY: Correct.

MR. COCHRAN: That call was from Ron Phillips; is that correct?

COMMANDER BUSHEY: I believe the call was initiated by the watch commander on the scene and then he handed the phone to Detective Phillips. That is my recollection.

MR. COCHRAN: All right. At any rate, you had some contact with Ron Phillips by 2:30; is that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: At that time was Ron Phillips still the lead detective on the case?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: And did Ron Phillips at that time tell you the names of the victims?

COMMANDER BUSHEY: He--we--yes. We knew the name of one of the victims, Miss Simpson, but we were not aware of the identity of the male.

MR. COCHRAN: So that at 2:30 A.m. He told you that the female victim was Nicole Brown Simpson?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: All right. And you recall that specifically?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: All right. Then armed with that information you then directed him, suggested to him that he notify Mr. Simpson as soon as possible, right?

COMMANDER BUSHEY: I did not suggest it; I directed him.

MR. COCHRAN: You directed him?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: All right. Now, you knew under LAPD policy that Mr. Simpson was the ex-husband of the divorced spouse of this particular lady; isn't that correct?

COMMANDER BUSHEY: That is not correct.

MR. COCHRAN: You didn't know that?

COMMANDER BUSHEY: Under LAPD policy?

MR. COCHRAN: I'm asking you did you know that Mr. Simpson was the ex-husband?

COMMANDER BUSHEY: I believe that I did.

MR. COCHRAN: All right. And under LAPD policy, in notifying the next of kin, Mr. Simpson would not be the next of kin, would he?

COMMANDER BUSHEY: I don't know that--

MR. COCHRAN: Well, have you read your policy lately, sir?

COMMANDER BUSHEY: No, I haven't read it lately, but that would certainly be the most logical person to contact with those children there.

MR. COCHRAN: Let's get back to my question. My question, under the LAPD policy regarding next of kin, the ex-husband would not be the next of kin. Wouldn't her family, wouldn't her mother and the father be the next of kin, sir? Isn't that correct?

COMMANDER BUSHEY: They would be the next of kin, sure.

MR. COCHRAN: Right. Did you take any efforts to have them notified, sir?

COMMANDER BUSHEY: I did not, no.

MR. COCHRAN: All right. And so you--as the commander you understand the LAPD policy and you are sworn to uphold that policy, aren't you?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: All right. LAPD tries to uphold their own policies, don't they?

COMMANDER BUSHEY: Say again.

MR. COCHRAN: You try to uphold your own policies?

COMMANDER BUSHEY: Certainly.

MR. COCHRAN: Right. So no effort was made to call the Brown family, but to notify the ex-husband, Mr. Simpson; is that correct, at 2:30, per your order?

COMMANDER BUSHEY: We had no knowledge of how to contact the Brown family. We did feel that we did contact Mr. Simpson. We were driven by practicality in that instance.

MR. COCHRAN: I see. Did you--the Los Angeles Police Department has unlimited resources to locate people throughout the world; isn't that correct, sir?

COMMANDER BUSHEY: I wouldn't say unlimited.

MR. COCHRAN: Well, you have resources but you can locate people throughout the world; isn't that correct?

COMMANDER BUSHEY: Well, we do.

MR. COCHRAN: Now, at any rate, at 2:30 in the morning you indicated, per order to Ron Phillips, to notify O.J. Simpson regarding the death of his ex-wife as soon as possible; is that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Do you know what time that notification was made?

COMMANDER BUSHEY: It was made at sometime after that. I don't recall the exact time, but it was made at sometime after that.

MR. COCHRAN: Would you be surprised the notification was made after five o'clock in the morning, perhaps two and one-half hours later that morning?

COMMANDER BUSHEY: I would have preferred the notification before then.

MR. COCHRAN: That is not my question. My question is are you aware?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: That your order which he was duty bound to follow was complied with some two and a half hours or more later?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: Are you aware of that?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: Now, and in that connection are you aware that all four detectives in your division, which you are in charge of, left the crime scene two and a half hours later after your order to go to notify the husband who is not the next of kin and left the crime scene without a detective there? Do you understand that?

COMMANDER BUSHEY: Yes.

MS. CLARK: Objection, no--objection. That misstates the testimony.

MR. COCHRAN: Well, without one of the working detectives there, your Honor.

THE COURT: Overruled.

MR. COCHRAN: Now, when you were talking to Detective Phillips about resources and various things, did you ask him whether or not he called the Coroner's office so the bodies would be treated with some dignity and removed from that scene?

MS. CLARK: Objection, beyond the scope and irrelevant.

THE COURT: Sustained.

MR. COCHRAN: I think--your Honor--

THE COURT: Sustained.

MR. COCHRAN: With regard to the Coroner?

THE COURT: Sustained.

MR. COCHRAN: Resources?

THE COURT: Sustained.

MR. COCHRAN: Did you ask him about whether or not any criminalist had been called to come to the scene?

COMMANDER BUSHEY: No.

MR. COCHRAN: It would be within your authority to help and assist, through special investigation division, to get criminalists out to the scene? Couldn't you have done that?

MS. CLARK: Objection, beyond the scope.

THE COURT: Sustained.

MR. COCHRAN: No.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Now, at some point you became aware that Ron Phillips and mark Fuhrman were taken off this case; isn't that correct? It was taken over by robbery/homicide downtown?

COMMANDER BUSHEY: Taken over by robbery/homicide would be a better term.

MR. COCHRAN: Okay. Taken over by them?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: So they were basically off the case at that point? It was handled by Vannatter and Lange, right?

COMMANDER BUSHEY: Well, they would continue to assist subordinate to Vannatter and Lange. That would be our common practice.

MR. COCHRAN: They would then be in charge, right?

COMMANDER BUSHEY: Vannatter and Lange would, that's correct.

MR. COCHRAN: Do you know what time that took a place?

COMMANDER BUSHEY: I would be speculating.

MR. COCHRAN: All right. Please don't speculate. But at 2:30--was it your understanding at 2:30 that Phillips and Fuhrman were still in charge of the case at that point?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: And you gave Phillips a direct order at that point; is that correct?

COMMANDER BUSHEY: Direct order.

MR. COCHRAN: Now, you mentioned the fact that your interest in this whole area was steeped and piqued by your experience in the John Belushi case; is that correct?

COMMANDER BUSHEY: Not exclusively.

MR. COCHRAN: That was an example you gave?

COMMANDER BUSHEY: That was an example I provided.

MR. COCHRAN: In the Belushi case there wasn't an immediate response to the scene by the Coroner, or was there?

MS. CLARK: Objection, irrelevant.

THE COURT: Sustained.

MR. COCHRAN: Well, I--

THE COURT: Sustained.

MR. COCHRAN: Are you aware that Dr. Michael Baden testified--

MS. CLARK: Objection, irrelevant.

THE COURT: Sustained, sustained. It is not relevant.

MR. COCHRAN: --in Belushi's case.

THE COURT: Over at the side bar with the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: We are over at the side bar. Counsel, the scope of this examination has to do the rehabilitation of Detective Vannatter as to one issue. We are not reopening crime scene investigation. We are not opening up any of the other things. That is the scope.

MR. COCHRAN: Okay. Judge--may I say this, Judge? I didn't bring up the Belushi case, they did, and I asked the question in good faith, were you aware that Michael Baden was the Coroner. Judge, what if--in the Belushi case he was telling us there wasn't an immediate notification? That was the whole problem.

THE COURT: You can ask him about timing of the family; not the Coroner.

MR. COCHRAN: Let me make sure I understand. Okay. They brought it up so I can ask him about timing and notification of the family in the Belushi case?

THE COURT: That is it.

MR. COCHRAN: Okay. Judge, why can't I ask the questions because he seems--here is my thinking on this--

THE COURT: We are not going into the crime scene.

MR. COCHRAN: When he gets up here and says four detectives can leave and go over there and there is nobody left at the scene, can't I ask him has he called Michele Kestler, the Coroner?

MS. CLARK: What does that have to do with it?

THE COURT: No.

MR. COCHRAN: That is logical to follow.

THE COURT: No.

MR. COCHRAN: Doesn't it impeach?

THE COURT: No.

MR. COCHRAN: We don't have to initially believe what he is doing.

THE COURT: Counsel, at some point in time this case has to end.

MR. COCHRAN: And it is going to end, Judge.

THE COURT: Scope, scope.

MR. COCHRAN: I want to have my day.

THE COURT: Scope.

MR. COCHRAN: So we are clear. I will try to remember that.

THE COURT: Scope.

(The following proceedings were held in open court:)

THE COURT: Thank you, counsel.

MR. COCHRAN: Back to the Belushi case for a moment. In that case was there a problem with the Los Angeles Police Department notifying Mr. Belushi's next of kin?

COMMANDER BUSHEY: I am not aware that there was a problem.

MR. COCHRAN: Well, you used that as an example, or Miss Clark did, as something that the family found out through the media before they were notified? Is that what happened?

COMMANDER BUSHEY: That is--the time frame to the time that Mr. Belushi was discovered until the media had ahold of it was so short that it would have been virtually impossible for his extended family to become aware of it.

MR. COCHRAN: I'm sure it was a lesser time than two and a half hours, wasn't it?

COMMANDER BUSHEY: As I recall, yes.

MR. COCHRAN: All right. And in this case you are aware that there was at least two and a half or more hours before Mr. Simpson was even contacted. You know that, right?

COMMANDER BUSHEY: That's correct.

MS. CLARK: Objection. That misstates testimony, two and a half or more.

MR. COCHRAN: Two and a half or more.

THE COURT: Overruled.

MR. COCHRAN: Now, in that connection you described for this jury that it is not unusual for all four detectives who are investigating a murder scene where the bodies are still there to get in cars and leave and go to give a notification? Is that what you said this to jury?

COMMANDER BUSHEY: Yes.

MS. CLARK: Objection. That was argumentative.

THE COURT: Overruled.

MR. COCHRAN: And in that connection what do four detectives do to go notify one person? I mean, does it take four people to notify one person?

MS. CLARK: Objection, argumentative.

THE COURT: Overruled.

COMMANDER BUSHEY: Well, I think I have answered that question, but I will answer it one more time.

MR. COCHRAN: Answer it for me if it would be so kind.

COMMANDER BUSHEY: First of all, we've got a very high-profile case, we've got a couple victims involved, we've got somebody that needs to be notified. We don't know how many other people may be there. There may be a need for somebody to stay with the victim until the clergy gets there. We may have additional witness statements. We have a couple children that need to be attended to. And those four had been at that scene conducting quite a comprehensive examination for a couple of hours before having made that notification, so--

MR. COCHRAN: Sir--

COMMANDER BUSHEY: --the scene was pretty well taken care of.

MR. COCHRAN: Sir, when you say the scene was taken care of, are you aware the Coroner's office hadn't even been called?

MS. CLARK: Overruled.

MS. CLARK: Objection, speculation.

THE COURT: Overruled.

MR. COCHRAN: Are you aware the Coroner's office hadn't even been called?

MS. CLARK: Objection, calls for speculation.

THE COURT: Overruled.

COMMANDER BUSHEY: I have no personal knowledge of that.

MR. COCHRAN: If I were to tell you the Coroner's office hadn't been called until ten hours later, where you--

MS. CLARK: Objection, irrelevant.

THE COURT: Overruled.

MR. COCHRAN: Are you aware the criminalist hadn't been called?

MS. CLARK: Objection.

MR. COCHRAN: You have had an experience coming up the ranks of the Los Angeles Police Department and you aware the first couple hours after a homicide are the most important hours in an investigation; is that correct?

COMMANDER BUSHEY: They certainly can be.

MR. COCHRAN: You have four detectives leaving the scene and going over to give this notification; is that right?

COMMANDER BUSHEY: After having been at the scene for a couple hours, they left.

MR. COCHRAN: Are you aware what they did at the scene for a couple hours?

COMMANDER BUSHEY: Well, I'm sure they were very busy.

MR. COCHRAN: Are you aware, sir?

COMMANDER BUSHEY: No, I wasn't.

MR. COCHRAN: So that we are clear, all of these conversations that we are talking about took place from the confines of your own house?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: You didn't come out to the scene, did you?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: You talked on the phone?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: So all of your awareness is from having returned from New Orleans and having these phone conversations with various officers; is that right?

COMMANDER BUSHEY: No, that is not right.

MR. COCHRAN: You had phone conversations?

COMMANDER BUSHEY: No, but some of my awareness comes from my knowledge of the practices and the personnel involved.

MR. COCHRAN: I'm talking about your awareness of what was going on at the scene came from phone conversation; is that right?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: All right. Now, the order that you gave, was your order to Phillips to personally go and make the notification himself?

COMMANDER BUSHEY: I believe it probably was. I don't recall the exact wording. It was probably, "I want to ensure that Mr. Simpson is notified as soon as possible."

MR. COCHRAN: Well now, as an experienced officer and no. 2 in command in the entire division, what you would want--the important thing was the notification; isn't that correct, so there wouldn't be this problem that you felt in the Belushi case; isn't that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: And so it didn't matter whether it was Phillips or someone that--he could have designated someone; isn't that correct, sir?

COMMANDER BUSHEY: Well, it is usually the detective on the case.

MR. COCHRAN: I'm asking you specifically with regard to your order in this case, could it have been someone else, any other officers?

MS. CLARK: Objection, speculation and irrelevant.

THE COURT: Overruled.

MR. COCHRAN: I'm asking.

COMMANDER BUSHEY: It would have been out of character for our policies, but it could have been someone else, yes.

MR. COCHRAN: You didn't make the order specific to Phillips then so he could have designated another officer?

MS. CLARK: Objection, that misstates the testimony.

THE COURT: Overruled.

MR. COCHRAN: Isn't that correct?

COMMANDER BUSHEY: I would have been disappointed, but he could have.

MR. COCHRAN: All right. You are disappointed he didn't do it right away; isn't that correct, also?

COMMANDER BUSHEY: Well, the--there is a lot of other things that needed to be done. That was not the only thing that needed to be done. And remember, I said as soon as possible and "Possible" means when it is practicable within the scope of the investigation.

MR. COCHRAN: All right.

COMMANDER BUSHEY: There were other things taking place.

MR. COCHRAN: Since you weren't there, do you think that two and a half hours was as soon as possible?

COMMANDER BUSHEY: Well, given the magnitude of that crime scene, it is not surprising that they had to spend some time there.

MR. COCHRAN: Given the magnitude of the crime scene, do you think they should have called the Coroner's office right away?

MS. CLARK: Objection. Objection, your Honor.

THE COURT: Sustained.

MR. COCHRAN: I want you to name for this jury one other case where four lead detectives at a crime scene left to go give notification to the person who was not the next of kin?

COMMANDER BUSHEY: Well, I can't.

MS. CLARK: Objection. That is argumentative and it is--

THE COURT: Overruled.

COMMANDER BUSHEY: Well, you know, in most cases I'm not--

MR. COCHRAN: Could you answer my question, please, sir, if possible?

COMMANDER BUSHEY: I cannot give you a specific case.

MR. COCHRAN: Okay.

COMMANDER BUSHEY: However, there has not been another case like this one either.

MR. COCHRAN: I just asked you to give me an example. And your answer is you can't, right? Is that what you are saying?

COMMANDER BUSHEY: If I were to give it some additional time--

MR. COCHRAN: You keep thinking about it, but right now you can't; is that what you are saying?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: May I have just a second?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: May I have just one second?

THE COURT: Sure.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Thank you, your Honor. I apologize.

MR. COCHRAN: Now, with regard to the sequence of events, and you have shared with us that at 2:30 or thereabouts you had this conversation with Phillips and it was your belief that--it was your belief that Fuhrman and Phillips were still on the case at that point?

MS. CLARK: Objection, objection. Counsel is testifying.

MR. COCHRAN: That was a prefatory to a question, your Honor.

THE COURT: Proceed.

MR. COCHRAN: Thank you.

MR. COCHRAN: Are you aware that Detectives Lange and Vannatter did not arrive at the scene until perhaps 4:00, 4:30 in the morning? Are you aware of that?

COMMANDER BUSHEY: I don't know the specific time they arrived.

MR. COCHRAN: All right. Now, are you aware that during the time after your direct order to Phillips or his designee from 2:30--that no one went over to notify Mr. Simpson or anyone else between 2:30 and the arrival of Lange and Vannatter, let's say, between 4:00 and 4:30? Are you aware of that?

COMMANDER BUSHEY: That is my understanding, yes.

MR. COCHRAN: And are you aware of what time officially the LAPD logs reflect that robbery/homicide took over this case? Do you recall that?

COMMANDER BUSHEY: No.

MR. COCHRAN: You have not heard the testimony about that in this case either, have you?

COMMANDER BUSHEY: I have not heard the testimony nor have I reviewed the document.

MR. COCHRAN: Did you ever talk to Detective Fuhrman that night?

COMMANDER BUSHEY: No.

MS. CLARK: Objection, irrelevant.

THE COURT: Overruled.

MR. COCHRAN: Were you aware?

COMMANDER BUSHEY: No, I did not.

MR. COCHRAN: You did not?

COMMANDER BUSHEY: I did not.

MR. COCHRAN: Were you aware of whether or not he had any prior knowledge of the Simpson location?

THE COURT: Sustained.

MS. CLARK: Objection.

MR. COCHRAN: When you had this conversation with Captain Connie Dial, who was the captain in patrol that particular night, about what time was that?

COMMANDER BUSHEY: To the best of my recollection it was probably an hour and a half or so after my conversation with Detective Phillips.

MR. COCHRAN: So--

COMMANDER BUSHEY: That would have put it between 4:00, 4:30, probably somewhere in that vicinity.

MR. COCHRAN: What time?

COMMANDER BUSHEY: 4:00, 4:30.

MR. COCHRAN: Did you talk to Phillips at 2:30?

COMMANDER BUSHEY: About 2:30, yeah.

MR. COCHRAN: Isn't it true, according to your report, that you talked to Captain Connie Dial about one hour later?

COMMANDER BUSHEY: Hour, hour and a half, hour and 45 minutes, somewhere. I couldn't be specific.

MR. COCHRAN: Well, let me show you a report and see if that refreshes your recollection.

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

MR. COCHRAN: May I approach, your Honor?

THE COURT: You may.

MR. COCHRAN: Placing before you, sir, an investigator's report, and I will ask you to--I will direct your attention to a time frame as to when you talked to Commander Connie Dial. Read that sentence there and see whether or not that refreshes your recollection, sir.

COMMANDER BUSHEY: (Witness complies.) Yes, I read it.

MR. COCHRAN: Have you read that?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: And this is--purports to be a statement taken from you I guess on September 11, 1994, by Dana Thompson, senior investigator in the District Attorney's office?

COMMANDER BUSHEY: `94 or `95.

MR. COCHRAN: `95.

COMMANDER BUSHEY: That is probably a pretty accurate reflection of what I said.

MR. COCHRAN: Last week and at that time you told him, did you not, that approximately one hour later after your conversation with Phillips that you spoke with Captain Connie Dial?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Right. So if you talked to Phillips at 2:30, you talked to Connie Dial at 3:30, right?

COMMANDER BUSHEY: No.

MR. COCHRAN: You talked to Phillips at 2:30?

COMMANDER BUSHEY: No, because I am aware that at the time I spoke to Captain Dial Vannatter and Lange were at the scene, so it would have to have been a little bit more than an hour.

MR. COCHRAN: Well, let me see. Now, you talked to Phillips at 2:30, right?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: And when you talked to Dana Thompson just last week, September 11th, you tried to be as accurate as could you; is that correct?

COMMANDER BUSHEY: Sure.

MR. COCHRAN: You told him at approximately one hour after talking to Phillips that you talked with Connie Dial; isn't that right?

COMMANDER BUSHEY: That is what I told him, yes.

MR. COCHRAN: All right. You were wrong in that, right?

COMMANDER BUSHEY: I think I was wrong.

MR. COCHRAN: Now you recall that it was later and that robbery/homicide and these detectives were already there?

COMMANDER BUSHEY: Well, in preparation for this testimony I have organized my thoughts and tried to reconcile some of the different time sequences, so I think an hour was probably on the lean side. Probably more like and an hour and a half, maybe a little bit longer now.

MR. COCHRAN: In preparing for your testimony what have you read in connection with this case?

COMMANDER BUSHEY: I have read nothing.

MR. COCHRAN: Well, how did you prepare then?

COMMANDER BUSHEY: Well, I have become aware that at the time I spoke to Captain Dial, Vannatter and Lange were at the scene, and I think I've learned from you just now that at the time their logs reflected they arrived at the scene, so if you were accurate, that means that I was probably inaccurate with an hour, probably a little bit longer than.

MR. COCHRAN: So you think it was about 4:30 at that point?

COMMANDER BUSHEY: Whatever time I talked to Captain Dial, Vannatter and Lange were at the scene, so it would have been more than a hour after my conversation with Detective Phillips.

MR. COCHRAN: So you knew then two hours after you gave a direct order to Phillips that he had not complied with your order or sent anyone else over there; isn't that correct?

COMMANDER BUSHEY: Yes.

MR. COCHRAN: Did you--did you--as the commanding officer, did you get after him?

COMMANDER BUSHEY: No.

MR. COCHRAN: Say you violated my order?

COMMANDER BUSHEY: No. That wasn't a disciplinary issue.

MR. COCHRAN: Okay. Now, you described for us something about preferential treatment. Are you saying that the LAPD department in this case gave preferential treatment by sending four detectives to O.J. Simpson's house on the early morning hours? Is that what you are saying?

COMMANDER BUSHEY: First of all, I don't like the word "Preferential treatment."

MR. COCHRAN: No. That was the word used by the Prosecutor?

COMMANDER BUSHEY: Anyway, I don't particularly care for it, but that had nothing to do with the number of detectives. The number of detectives were driven by the circumstances of that case.

MR. COCHRAN: All right. And you don't like that word because on the side of the police cars it says "Protect and serve" all citizens, not just one or people who have a lot of money or people of any standing; isn't that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Supposed to treat all people alike, aren't you?

COMMANDER BUSHEY: We try to.

MR. COCHRAN: And fair, too. You try to?

COMMANDER BUSHEY: Sure.

MR. COCHRAN: Are you aware of that Phillips and Fuhrman were doing at that scene between 2:30 and 4:30, the arrival of the robbery/homicide detectives?

MS. CLARK: Objection, irrelevant, beyond the scope.

THE COURT: Overruled.

COMMANDER BUSHEY: I don't have personal knowledge.

MS. CLARK: Objection, hearsay.

MR. COCHRAN: You have no personal knowledge? The answer is no, you don't know?

COMMANDER BUSHEY: No personal knowledge.

MR. COCHRAN: Per your order, even if they were off the case, per your order, you told them to go over and make that notification, didn't you?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: They didn't do that, did they?

COMMANDER BUSHEY: Not--

MR. COCHRAN: During that time frame?

COMMANDER BUSHEY: During that short time frame, no, they did not.

MR. COCHRAN: Two-and-a-half-hour time frame we are talking about?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Time was of the essence, according to you; isn't that correct, sir?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Who made the decision for robbery/homicide to take over this case?

COMMANDER BUSHEY: I believe the decision was made by Captain Gartland, the commanding officer of robbery/homicide. It is my belief that he agreed to take the case, although it could have had the concurrence of someone higher in his chain of command.

MR. COCHRAN: Do you believe that you are not really sure about that, though?

COMMANDER BUSHEY: I'm not really sure.

MR. COCHRAN: May I have just a second more, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. COCHRAN: In the course of your responsibilities that morning were you more concerned about the department's image than you were about investigating these very brutal murders?

COMMANDER BUSHEY: Certainly not.

MR. COCHRAN: You would agree with me that the most important thing was investigating these killings at that scene as soon as possible because of the importance of that; isn't that correct?

COMMANDER BUSHEY: One is not to the exclusion of the other but what you just described was certainly a top priority.

MR. COCHRAN: Yes. Along with that would be complying with the state law in notifying the Coroner?

MS. CLARK: Objection, irrelevant, beyond the scope.

THE COURT: Sustained.

MR. COCHRAN: May I have just a second, your Honor? Thank you.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: May I have just a second, your Honor?

(Discussion held off the record between Defense counsel and the Defendant.)

MR. COCHRAN: Just one or two more questions, your Honor.

MR. COCHRAN: Commander Bushey, from the time that you notified or told Detective Phillips to make this notification at about 2:30 in the morning--and we've already covered the fact of the time the notification wasn't made, would it be in direct contravention to your order to Phillips if Phillips and Fuhrman were standing in the street at Bundy and Dorothy waiting for the robbery/homicide detectives to come until 4:30 instead of complying with your order? Wouldn't that be in direct contravention of your order?

COMMANDER BUSHEY: No.

MR. COCHRAN: That would not be if they were just standing in the street waiting?

COMMANDER BUSHEY: No.

MR. COCHRAN: You have already said that would be disappointing to you, the fact that they didn't do it on an immediate basis; is that correct?

COMMANDER BUSHEY: I think the disappointment was that it did not occur sooner. There is tremendous competing interests at a scene of that magnitude.

MR. COCHRAN: You keep talking about the competing priorities. Competing priorities are to investigate this homicide scene thoroughly and in accordance with state law; isn't that correct, sir?

COMMANDER BUSHEY: Well--

MR. COCHRAN: Isn't that correct?

COMMANDER BUSHEY: I am not aware of a state law that regulates the investigation.

MR. COCHRAN: No. The state law regulates when you call the Coroner. Are you aware of that?

MS. CLARK: Objection, your Honor.

THE COURT: Sustained.

MR. COCHRAN: Well--

THE COURT: This is beyond the scope, counsel.

MR. COCHRAN: Okay. In response to the question.

MR. COCHRAN: You may not be aware of that, but are you aware that the important--the most important priority is investigating these murders? Isn't that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: All right. That is more important than notifying somebody who is not the next of kin; isn't that correct.

MS. CLARK: Objection, your Honor, argumentative.

COMMANDER BUSHEY: Those are not in competition with each other.

MS. CLARK: Argumentative, your Honor.

THE COURT: It is.

MR. COCHRAN: Are you aware of how many police officers came to that scene and how many from your division, West Los Angeles, that night?

COMMANDER BUSHEY: No, I am not aware of all of them that came to the scene.

MR. COCHRAN: If there were more than thirty officers, would that surprise you at all, that came to that scene?

COMMANDER BUSHEY: No.

MR. COCHRAN: Of those thirty, don't you think that one or two of those thirty, other than the lead detectives, could have gone over and made this notification--

MS. CLARK: Objection, asked and answered.

MR. COCHRAN: --where you ordered Phillips?

THE COURT: Overruled.

MR. COCHRAN: Couldn't they? You can answer that.

THE COURT: You can answer the question.

COMMANDER BUSHEY: Yes, they could have, but that would not have been our practice.

MR. COCHRAN: But you have already told us it wasn't specific that Phillips had to do it; isn't that correct?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: So they could have done it, right?

COMMANDER BUSHEY: They could have. It would not have been typical.

MR. COCHRAN: And Phillips could have done it rather than standing around in the street for two hours waiting?

THE COURT: I think we have gone over this already.

MR. COCHRAN: I think you are right. Thank you very much. Thank you very kindly.

THE COURT: Miss Clark.

MS. CLARK: Briefly.

REDIRECT EXAMINATION BY MS. CLARK

MS. CLARK: Sir, as a police officer or detective on a scene would it be fair to state that circumstances dictate your actions?

COMMANDER BUSHEY: Would you please repeat that question, please.

MS. CLARK: Yes. For any police officer or detective on a scene, would it be fair to say that circumstances have to dictate your actions?

COMMANDER BUSHEY: Absolutely, and they are all always different.

MS. CLARK: Now, if it is unknown who is ultimately going to handle the case, is it reasonable police procedure to wait for the person or detective that is ultimately assigned to the case to make personal notification?

MR. COCHRAN: Leading and suggestive, your Honor.

THE COURT: Sustained.

MS. CLARK: What is the proper police procedure regarding who makes notification when it is unknown as to which detective or which agency will ultimately handle the case?

MR. COCHRAN: Object. That is vague, your Honor. Which agency? Talking about LAPD.

THE COURT: Overruled.

MS. CLARK: Which division?

COMMANDER BUSHEY: It is--we try very carefully, we try very hard to make sure that the person who calls the shots is the lead investigator. And if there is going to be a hand-over investigative responsibility from one entity to another, the entity that is relinquishing that responsibility always defers to the people who are going to assume responsibility for that investigation. It is very important from the standpoint of continuity.

MS. CLARK: Okay. Now, if the detectives are yet unsure as to the identity of a victim, would it be proper, based on a supposition, to go and make notification to next of kin?

MR. COCHRAN: Your Honor, that assumes a fact not in evidence and speculative. Improper redirect.

THE COURT: Overruled, overruled.

COMMANDER BUSHEY: If you did not know who the victim was.

MS. CLARK: If you were unsure?

COMMANDER BUSHEY: If you were unsure, you wouldn't maybe the notification.

MS. CLARK: It would be important, would it not, sir, to make sure that you have correctly identified the victim before you go to notify that person's family, correct?

MR. COCHRAN: Your Honor, this is irrelevant and immaterial.

THE COURT: Overruled.

MR. COCHRAN: Improper redirect.

THE COURT: Overruled.

COMMANDER BUSHEY: Absolutely. You wouldn't notify next of kin until you know for certain that their loved one had expired.

MS. CLARK: Do you recall precisely what Detective Phillips said to you, whether he said he thought it was Nicole Brown or was sure it was Nicole Brown, at the time you spoke?

MR. COCHRAN: Your Honor, I object. This is hearsay.

THE COURT: Sustained, sustained.

MS. CLARK: Your Honor, this is--this was elicited by counsel.

THE COURT: No, not as to who it was. No.

MS. CLARK: When you issued your order to make notification, did you intend that it be followed, whether or not Detective Phillips was sure that it was Nicole Brown--

MR. COCHRAN: Object to the form of that question, your Honor.

MS. CLARK: --that was the victim?

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

THE COURT: Sustained. It is irrelevant.

MS. CLARK: Would you expect any detective to make sure of who the victim was before you went to make notification?

COMMANDER BUSHEY: Absolutely.

MS. CLARK: Did you assume that Detective Phillips would do that, sir?

COMMANDER BUSHEY: That is a given. That would certainly be among the assumptions I would make.

MS. CLARK: Did you know whether Detective Phillips had ascertained for sure whether that was Nicole Brown at the time you spoke to him?

MR. COCHRAN: Calls for speculation, your Honor.

THE COURT: Sustained.

MS. CLARK: Were you aware of what Detective Phillips' state of mind was or his knowledge was with respect to the identity of the victims in this case at the time you spoke to him?

THE COURT: Sustained.

MS. CLARK: What did you know about Detective Phillips' knowledge of the identity of the victims in this case at the time you spoke to him?

MR. COCHRAN: Irrelevant and immaterial.

THE COURT: Sustained.

MS. CLARK: Did you have a conversation with Detective Phillips about whether or not he was sure it was Nicole Brown at the time you spoke to him?

THE COURT: Over at the side bar with the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: Over at the side bar. Just an observation. Why would they go notify somebody if they didn't know who it was?

MS. CLARK: Exactly, but Mr. Cochran went into it extensively on cross-examination. He did, your Honor, and I would ask it to be read back. He did. He did. He asked the--he asked Commander Bushey whether knowing that it was--it was Nicole Brown he told you that, he told you that. He asked him several times. Detective Phillips--

THE COURT: Had to do with next of kin.

MS. CLARK: No, it had--it also had to do with that, your Honor.

MS. CLARK: Can we have it read back?

THE COURT: No, we are not going into this.

MS. CLARK: It is true.

THE COURT: But it is really a so what? The issue here is did Vannatter have an order to go make notification? Yes or no.

MS. CLARK: It is the issue, but it has been taken far afield by counsel.

THE COURT: And I stopped him and I've stopped him and I'm stopping him too.

MS. CLARK: He elicited impeachment on Detective Phillips on this point.

THE COURT: There is a limited scope here. That is it. It is over.

(The following proceedings were held in open court:)

THE COURT: Anything new?

MS. CLARK: Yes.

MS. CLARK: In your experience, sir, notification to the family takes approximately how long?

COMMANDER BUSHEY: Well, they usually take place after the investigators are through at the initial crime scene.

MS. CLARK: Does notification usually take several hours?

MR. COCHRAN: Object, your Honor. This calls for speculation. Each case is different.

THE COURT: Overruled, overruled.

COMMANDER BUSHEY: Well, each case is a little bit different and it certainly depends on the availability of the person being contacted. There are times when it is a knock on the door and there is a clergyman there, the family is there, and there are times when it can be quite a laborious process, depending on how many people are involved and the degree of grief that is experienced.

MS. CLARK: Now, I think you indicated before that one of the reasons that you asked that the Defendant be personally notified first was your knowledge that he lived nearby?

COMMANDER BUSHEY: I seem to recall that I was aware that he lived nearby.

MS. CLARK: So he would be easiest to reach, was that your thinking?

COMMANDER BUSHEY: Yeah, that plus the fact that his children were there caused me to--to form that opinion.

MS. CLARK: So even though, legally speaking, sir, he was not next of kin, why was it--

MR. COCHRAN: This is leading and suggestive, your Honor.

THE COURT: No, it is not.

MS. CLARK: What was that?

THE COURT: No, it is not.

MS. CLARK: Thank you. I'm sorry, I couldn't hear you. Thank you, your Honor.

MS. CLARK: Even though, legally speaking, he was not next of kin, sir, you indicated that you felt it was important to notify the Defendant first?

COMMANDER BUSHEY: Well, that was--seemed to be the person we could probably get ahold of first, because the children being there, the prominent person, belief that he lived in that area. He seemed to be somebody who was accessible.

MS. CLARK: And the children, did they play a large part in your concern for notification?

MR. COCHRAN: Leading and suggestive, your Honor.

THE COURT: Overruled.

COMMANDER BUSHEY: Absolutely.

MS. CLARK: Did you go to the station the following morning?

COMMANDER BUSHEY: I--

THE COURT: This is--wait, wait. This is way beyond the scope of notification at 2:30 in the morning.

MS. CLARK: It is the subject of notification.

THE COURT: Activities at West L.A. Station the next morning are not. Proceed.

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

MS. CLARK: All right. I have nothing further.

MR. COCHRAN: Just a couple more questions, your Honor.

THE COURT: Proceed.

MR. COCHRAN: Thank you very kindly, your Honor.

RECROSS-EXAMINATION BY Mr. COCHRAN

MR. COCHRAN: Who told you that O.J. Simpson lived nearby?

COMMANDER BUSHEY: You know, I don't recall specifically, and I have asked myself that question several times, but I tried to separate what I knew that night from what I have subsequently learned, and I had the sense, as a result of my conversation with Ron Phillips, that he lived nearby and I--I can assume--I can make assumptions, if that is what you would like.

MR. COCHRAN: I don't want you to--

COMMANDER BUSHEY: I cannot tell you exactly why I knew that.

MR. COCHRAN: Could it have been that Detective Mark Fuhrman told you?

MS. CLARK: Objection, hearsay, irrelevant, beyond the scope.

THE COURT: Overruled.

COMMANDER BUSHEY: No, that did not occur.

MR. COCHRAN: He didn't tell you that?

MS. CLARK: Objection, your Honor.

COMMANDER BUSHEY: I had no conversations with Fuhrman.

MR. COCHRAN: Now, would you find it unusual that the two minor children that you were so concerned about would know who their father was and where their father lived, would you, who were at the police station?

COMMANDER BUSHEY: (No audible response.)

MR. COCHRAN: That wouldn't be a mystery?

COMMANDER BUSHEY: What about the police station?

MR. COCHRAN: You would not find unusual these two minors, Sydney and Justin Simpson, who were at West Los Angeles Police Station, would know where their father lived, would you?

COMMANDER BUSHEY: You would think that they certainly would.

MR. COCHRAN: What you have told us here today, when Ron Phillips talked to you at 2:30, he told you that the female victim in this case was Nicole Brown Simpson; isn't that correct?

COMMANDER BUSHEY: That is what I believe, yes.

MR. COCHRAN: By the way, when you talked about these competing interests--

MS. CLARK: Objection, your Honor. Motion to strike. That was hearsay.

THE COURT: Overruled.

MR. COCHRAN: When you talk about these competing interests, one of these competing interests is not standing in the street doing nothing at a homicide scene, is it?

COMMANDER BUSHEY: If another investigator is responding to take over the investigation, that is probably the thing that they should be doing.

MR. COCHRAN: I'm talking about your competing interests, not about another investigator taking over. I'm asking you--you talked a lot about competing interests. I'm asking you specifically as a commander with the Los Angeles Police Department, one of the competing interests at the serious homicide scene that needs to be investigated is not standing in the street doing nothing, is it?

MS. CLARK: Objection, argumentative asked and answered.

THE COURT: Sustained.

MR. COCHRAN: Thank you. Nothing further.

FURTHER REDIRECT EXAMINATION BY MS. CLARK

MS. CLARK: Do you recall whether Detective Phillips told you it was Nicole Brown or may be?

MR. COCHRAN: Object, your Honor, hearsay. Hearsay.

THE COURT: Overruled.

COMMANDER BUSHEY: He was at her residence and I--I am quite certain that there was no conversation that he is absolutely certain that this was Nicole Brown Simpson. I believe that that is what it appeared to be, because she lived there and--but I don't--I'm quite sure--well, I'm not certain--I am not aware that there was a positive identification, but that is certainly what it appeared to be.

MS. CLARK: And--you had no conversation with Detective Fuhrman that night, correct?

COMMANDER BUSHEY: None.

MS. CLARK: And you told that to Mr. Cochran earlier in his cross-examination, correct?

COMMANDER BUSHEY: I believe so.

MS. CLARK: Can you imagine why he keeps mentioning Detective Fuhrman's name?

MR. COCHRAN: Object.

THE COURT: Sustained, sustained.

MS. CLARK: Thank you.

MR. COCHRAN: Last question, your Honor,

FURTHER RECROSS-EXAMINATION BY Mr. COCHRAN

MR. COCHRAN: With regard to the fact that detectives were at Nicole Brown Simpson's house, her children were at the police department--is that correct?

COMMANDER BUSHEY: At some point.

MR. COCHRAN: Yes. They had been found at that scene and Detective Phillips told you that she was the victim; isn't that correct?

MS. CLARK: Objection, hearsay.

THE COURT: Overruled.

MS. CLARK: Asked and answered.

THE COURT: Overruled.

MR. COCHRAN: Isn't that correct?

COMMANDER BUSHEY: Our assumption was that it was Nicole Brown Simpson.

MR. COCHRAN: Otherwise you wouldn't tell him to go give notification? You wouldn't give a direct order as a commander of the Los Angeles Police Department, would you?

COMMANDER BUSHEY: That's correct.

MR. COCHRAN: Thank you, sir.

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

MS. CLARK: Nothing further.

THE COURT: All right. Commander, thank you very much, sir. You are excused.

COMMANDER BUSHEY: Thank you.

THE COURT: All right. Ladies and gentlemen, we will take our mid-morning recess at this time. I'm sorry, we had a stipulation.

MR. NEUFELD: Do that now?

THE COURT: Mr. Neufeld, you had a stipulation to offer?

MS. CLARK: Your Honor, could we--could we take our break before we enter into that stipulation, please?

THE COURT: Is there a problem with the stipulation?

MS. CLARK: No, but there is a problem procedurally with what case we are in, rebuttal, surrebuttal, Defense. I don't know where we are.

THE COURT: No. Offer the stipulation.

MR. NEUFELD: Thank you. Your Honor, if I may--good morning.

THE JURY: Good morning.

MR. NEUFELD: The Prosecution and the attorneys for Mr. Simpson have entered into a stipulation--by the way, we need to have this marked. What is the next in order, your Honor?

THE COURT: 1382.

MR. NEUFELD: Okay.

(Deft's 1382 for id = syringe)

MR. NEUFELD: This should be marked 1382.

MS. CLARK: Your Honor, I don't have a written stipulation. I don't know what he is going into. I asked for it in writing.

MR. NEUFELD: No, she didn't.

THE COURT: Ladies and gentlemen, would you step back into the jury room, please.

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

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

THE COURT: Counsel, stop it, both of you.

(Brief pause.)

THE COURT: Now, counsel, I realize that we are all tired and we wish this were over sooner than later, but this kind of petty bickering is not appropriate, and if you heard the snickering of the jurors as they were going out, they thought it was pretty silly, too. Now, there is a problem with the stipulation?

MS. CLARK: I don't even know exactly what it is, your Honor. How can I say there is no problem?

THE COURT: Well, counsel, this morning--wait. This morning I was told on the record here in front of all of us there was a stipulation. There was no objection from the Prosecution side. It is reasonable for the court to assume that that offer of the stipulation had been made and had been accepted.

MS. CLARK: That is reasonable, your Honor, and there was a stipulation. There is one. I just need to make sure that counsel is going to frame it in the way that we agreed. That means I need to see it in writing. Counsel has been told this innumerable times by Mr. Goldberg, that that is the way we proceed in this jurisdiction.

THE COURT: You know, it is amazing to me--

MS. CLARK: I can't enter into a stipulation without knowing what it is going to say, your Honor.

THE COURT: It is amazing to me that we have to bicker over a stipulation that this is a syringe used by the LAPD infirmary. It is astonishing what we have sunk to here, that we have to argue over waxing and waning and the waxing and waning goes to this side; the syringe goes to this side. I mean, this is incredible. This is just incredible for both sides.

MS. CLARK: You know--

THE COURT: We will take a recess for fifteen minutes. If there is not a stipulation, then we will have some more testimony I guess. Thank you.

(Recess.)

THE COURT: Back on the record in the Simpson matter. All right. Have we resolved our stipulation?

MS. CLARK: Yes, your Honor.

THE COURT: All right. Do we have any other witnesses to present--what is our scheduling expectation for the remainder of the day?

MS. CLARK: If I may be heard briefly on Gary Sims, your Honor, the notes that I promised the court are here. May I also indicate to the court that I have conferred with the members of the Simpson Prosecution team and we have determined that sock B is not anything that addresses any part of the People's rebuttal case. We raised nothing in our rebuttal that would make sock B relevant on surrebuttal. Furthermore, as the court is aware, the Defense rested conditionally subject to the reservation of the Whitehurst matter. That has been resolved now. So there is no part of the Defense case in chief that is left to be explored. So we neither have a proper admission in the Defense case in chief nor on surrebuttal. Furthermore, the notes reflect that Henry Lee made extensive physical examinations of sock B in April and in February as well. His diagrams reflect that the area to which they want to direct testimony was located by him and examined microscopically by him and certainly the April examination was not hampered by any faulty or inadequate equipment. If the Defense thought this was so important, then clearly they had all of the knowledge they needed to put it into their case in chief and elected not to do so. And if I may proffer these notes to the court or would you prefer--

THE COURT: No. I would like to see the notes and I would like to see the photographs, if they are available.

MS. CLARK: The photographs are in counsel's possession. I don't have them.

THE COURT: All right. Assuming the worse happens and I determine that Mr. Sims is subject to recall, what is his availability status, Miss Clark?

MR. SCHECK: I actually called the Department of Justice laboratory in search of Mr. Sims, as the court directed me this morning, and I was informed that today is the day that he takes classes at the Berkeley campus in the extension school, I believe, and Mr. Konzack from the laboratory told me that he could not reach Mr. Sims and didn't expect him in the laboratory until sometime after 1:30.

MS. CLARK: I checked on the availability of Mr. Matheson. He is at school in Sacramento until Monday, and Mr. De Forest is teaching today until 3:00 P.M. and he is teaching tomorrow, so this would require testimony next week.

THE COURT: All right. Then if you will submit to me the notes from Dr. Lee, I will take a look at them over the lunch hour. All right. Then I suspect then all we have to offer the jury at this point then is a stipulation regarding the syringe. Anything else we can offer them by way of witnesses?

MR. COCHRAN: I don't think so regarding the jury, your Honor. May I just indicate to the court a couple of things on the list I have here, things we might be able to do the rest of the day?

THE COURT: Oh, no, we can do lots of things. There are 53 things we can do.

MR. COCHRAN: You know about them?

THE COURT: Not the least of which is instructions, motions on argument.

MR. COCHRAN: Right. We are going to ask you a couple of motions we can move up to the top so some of us can start preparing, if possible. Thank you, your Honor.

THE COURT: Okay. My inclination then would be to invite the jurors to join us, and as far as they are concerned, do the stipulation, then recess for the morning as far as the jurors are concerned. All right. For the day.

(Brief pause.)

THE COURT: All right. Deputy Trower, let's have the jurors, 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. And let the record reflect that we have now been rejoined by all the members of our jury panel. And Mr. Neufeld, do you have a stipulation to offer?

MR. NEUFELD: Thank you. The stipulation that the Prosecution and lawyers for Mr. Simpson have entered into is that this exhibit, which is 1382, is a syringe that is the same make and the same model as a syringe that nurse Thano Peratis used on June 13th, 1994, to draw blood from Mr. Simpson. And with that, your Honor, I would ask permission to pass it around so the jurors can inspect it.

THE COURT: All right. It is in the original packaging and there is no needle attached?

MR. NEUFELD: No, there is a needle attached. There is a sheath over the needle and there is packaging over the sheath.

THE COURT: All right. Hand that to juror no. 14, please.

MR. NEUFELD: Thank you.

(The exhibit was passed amongst the jurors.)

THE COURT: All right. The record should reflect that each of the jurors has had the opportunity to examine that item. All right. Ladies and gentlemen, at this point we have no further witnesses to present to you this morning, so we are going to break a little early as far as you are concerned. And just to let you know what the progress of the case is, I now have before me certain motions regarding whether or not I'm going to allow either side to call additional witnesses as to certain specific issues in the case. I have to decide who they can call and who they can't. I anticipate that we will conclude, as I indicated to you, the presentation of all the witnesses this week, and argue next week, and that is still my expectation based upon what I know of the case. So please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. As far as the jury is concerned, we will stand in recess until--given what I know about the availability of the witnesses, if I do allow them, they will not be available until tomorrow, so as far as the jury is concerned, we will be in recess until nine o'clock. As far as counsel are concerned, though, we will reconvene as soon as the jury has been escorted out of the courtroom. All right. Thank you.

(Recess.)

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

THE COURT: All right. Back on the record. All parties are again present. The jury is not present. Counsel, what I suggest we do is set up an agenda for the issues that remain to be resolved before we proceed to the instruction of the jury, and arguments.

MR. COCHRAN: Thank you very kindly--thank you very kindly, your Honor. I think that is very appropriate. We would like to--in addition to jury instructions, we do have some further exhibits I think you are going to have to deal with.

THE COURT: Very few.

MR. COCHRAN: Mr. Douglas will be ready on that.

THE COURT: Probably less than 20.

MR. COCHRAN: I think he has a sense of that. Your Honor, what I would like to--and I think Miss Clark agrees with this--this afternoon, or even now if you wanted to, take up the issue regarding the length of arguments in this case, perhaps first.

No. 2, Miss Chapman will be down shortly to argue this, the motion regarding the use of both sides, the ability of both sides to use videotape that has been shown to the jury, and also videotape of the actual testimony in certain instances, which we would have an opportunity to preview and get ready. We would like to take those two motions probably first. In addition to that, Dean Uelmen is present, and as the court understands and realizes, we will undoubtedly ask for a further review of our earlier suppression motions in view of the attack on Mr. Vannatter's testimony. We think that issue is ripe again. We did not bring it up yesterday because we wanted to give you an opportunity to deal with matters, and now that you resolve resolved that, we think it is appropriate. We will be ready to respond to the People's request for judicial notice motion and we have several other things that tie into jury instructions. The court will recall the page 4 staple incident. At one point you had ruled, I believe, and indicated that the appropriate time for dealing with that would be in jury instructions, I believe, so that is something we think is very important to us. I made a final proposal to Miss Clark with regard to how we elevate this entire proceeding. I would just like to say something, Judge. We are at the end of this trial and early on you said to us that we wanted to conduct ourselves in a manner so that when this is all over we could all go off and have dinner and we would be proud of the way we performed in this trial. This has been very hard fought, but I'm hopeful at the end we can come back full circle to that point. I hope that that--nothing has happened at this point that will cause us not to do that. I mean, everybody has been vigorous. You have done your job, we have tried to do our job on both sides, and I hope we can still do that. And I proposed to Miss Clark this morning with regard to what we do from this point forward in argument which I think might restore some of that.

THE COURT: It is still my fondest hope, Mr. Cochran. As I mentioned your colleague Dean Uelmen, I suspected at this point the invitation was only open to him and Mr. Hodgman.

MR. COCHRAN: I understand. The rest of us will be trying to get back--

THE COURT: Back on the dinner list.

MR. COCHRAN: On the invited list, your Honor, and we are trying real hard to do that. And I think it is one of the things about our system that makes it so great that we can fight very hard and are very, very earnest in our various positions, and I hope morally and ethically try to do the right thing. But this is serious business from our standpoint, as you know, and from the People. We have a client that we have always held was wrongfully accused so we have done everything we could to try and represent him. Thank you, your Honor.

THE COURT: Why don't we take up--Miss Clark, do you agree with the order of taking these matters up?

MS. CLARK: Yes, your Honor.

THE COURT: All right. Then let's address the length of closing arguments and the use of video, if we can, this morning, and then we will recess until 1:30.

MS. CLARK: I don't have any of my motions down with me, your Honor. I didn't realize we were going to take it up right away, so I would like--

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

MR. COCHRAN: Would your Honor consider--we would like at 1:30 to do those two motions. Dean Uelmen is ready with that other motion, so we wouldn't lose any time. Would your Honor consider that, the suppression motion?

MS. CLARK: At 1:30.

MR. COCHRAN: You are not ready on that?

MS. CLARK: I do have somebody who could argue it, but they are not here right now. Everything is going to take a little bit of time.

THE COURT: Well, it looks like a long lunch hour.

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

MS. CLARK: At 1:30--

THE COURT: Although, I must also say, as far as our discussion of the instructions are concerned, we are about a day ahead of schedule, so--

MS. CLARK: Not bad.

THE COURT: And it would thrill me to death if I could instruct the jury Friday morning and then recess and then start our arguments on Tuesday.

MS. CLARK: Okay. So--

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

MS. CLARK: I got confused in there.

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

THE COURT: All right.

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

MR. COCHRAN: What we agreed is we will come back with Dean Uelmen first and then we will go right into the argument and time and the other two.

THE COURT: Okay. 1:30.

(At 11:42 A.m. The noon recess was taken until 1:30 P.M. of the same day.)

Los Angeles, CALIFORNIA; WEDNESDAY, September 20, 1995 1:40 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

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

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

(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. Let's take up the length of argument matter first.

MS. LEWIS: Your Honor, Miss Clark will be arguing that motion. I know she will be here momentarily.

MR. BLASIER: May I take care of a bookkeeping matter while we are waiting for her? I just want to make sure the materials the court considered on the Whitehurst matter be made part of the record because I know you have seen things that we have not seen.

THE COURT: All right. Then let's take care of the use of video matter. Can we do that one?

MS. LEWIS: I'm arguing that one.

MR. COCHRAN: Miss Chapman will be arguing that one.

THE COURT: All right. Miss Chapman.

MS. CHAPMAN: Good afternoon, your Honor.

THE COURT: Good afternoon, counsel.

MS. CHAPMAN: Would your Honor like me to address the People's response, because you've read my moving papers. Well, okay. I'll just start from the beginning. The Defense--

THE COURT: Well, let me ask you this. Don't you think there's some restrictions we ought to apply to snippets or whatever it is that you're going to use, to require that it not have--I notice that from time to time, the camera roams at people in the audience or goes to things that are not specifically the witness or the person who's doing the questioning.

MS. CHAPMAN: Yes.

THE COURT: Some restrictions?

MS. CHAPMAN: Yes. We would not seek to use any videotape that had anything other than the witness. We would never want to pan over to Mr. Simpson or any other person in the courtroom. So we can make that assurance to the court, that the only videotape of a witness testifying used would be that of the witness' face and demeanor. Okay.

THE COURT: Any other comment? Have you prepared any examples of what it is you want to show?

MS. CHAPMAN: Well, the People talk about in their response that they think that there would be an undue consumption of time in arguing the admissibility. First of all, I've spoken with Mr. Cochran about this, and he intends to only use about 10 snippets of videotape in closing argument. So I don't think that there would be an undue consumption of time in having the court preview the videotape that we intend to use, and I don't believe that Mr. Cochran intends to use any videotape that's going to be considerably lengthy at all in any event. So I think that if we were to set up a time where both sides could be here and preview the videotape that the Defense intends to use and that the People intend to use, if at all, that it wouldn't take very long at all. We could possibly do that Friday afternoon.

THE COURT: Do you believe you would have those available by Friday?

MR. COCHRAN: Your Honor, if I might have a second with Miss Chapman.

(Discussion held off the record between Defense counsel.)

MS. CHAPMAN: Okay. Mr. Cochran says realistically by Monday afternoon, although I know that is a court holiday. I don't think it would take very long.

THE COURT: All right.

MS. CHAPMAN: The People also talk about in their response the turnaround time that they would need to respond by way of videotape. I think that the need to do that would be obviated also by having this preview session. They would then be made aware of what the court's rulings would be with respect to whatever videotape was admissible at closing argument and then they would have enough time to present to counsel and to the court what videotape they planned to use in their closing argument. So all of that would be before the time for the closing argument.

They also speak about taking testimony out of context. I don't see that as being any different from reading from portions of a transcript during closing argument. Obviously, counsel takes certain portions of the transcript, and the People are obviously able to respond in the manner that they feel necessary in their rebuttal. Further, the People say that videotape is not an accurate representation. I think that it's clearly the most accurate representation of what occurred at the trial. They speak about the angle being nonrepresentative, that the camera is in a different position than the jury view. I think that it's very close, very similar and I don't think that that should be a reason that the court should not allow the use of videotape. I think that I have addressed all of the arguments the People presented in their response, and I'm available to answer any questions the court may have.

THE COURT: All right. Thank you, Miss Chapman.

MS. CHAPMAN: The last thing I want to say is, we looked up California law. There was nothing on the subject, but I did find some out-of-state cases, Illinois court, Indiana and Georgia. All of them say it's basically at the court's discretion, and there are a number of cases which have allowed the use of videotape and audiotape in closing argument as well as graphics obviously.

THE COURT: All right. Thank you.

MS. CHAPMAN: Thank you.

THE COURT: Miss Lewis.

MS. LEWIS: Good afternoon, your Honor.

THE COURT: Good afternoon.

MS. LEWIS: Your Honor, every criminal case in this country has been argued and is currently argued and will in the future be argued based on the court record in the case and perhaps illustrative charts that either side may use. In this courtroom, we are particularly fortunate for this case to have the use of the elmo and the graphics presentation that has been made available to the court and to counsel for both sides throughout the trial and which we will continue to have for closing argument. That alone is a unique feature of this trial that is not enjoyed by the vast majority of criminal cases that are argued throughout this country. Now, when it comes down to the particular media videotape and broadcast, there are definite problems with it. And, frankly, one of our concerns is that whatever the Defense may use--may choose to use may be taken out of context.

Now, when you're talking about a reporter's transcript where the arguing counsel has to cite the page and line, it's easy in most cases, though in this case, with 200 some volumes, 200 something volumes, it wouldn't be so fast. But in normal cases, it's easy to pull out the transcript and see what the context was in. We don't have that quick turnaround ability here. Even if we were given some amount of time to preview what Mr. Cochran--and I assume he's the one who is going to argue--intends to use and anyone else who is going to argue on the Defense side, even if had the opportunity to preview that, we would have to--there would presumably, because there has been throughout this trial, there would be reason for objections. We would be making those objections. It would take us time to find the context. We might make representations to the court, but we'd have to go back and look. And, frankly, it's difficult, especially with the--we're grateful for them, but they are government videotapes that we have. We don't have counters on any of our videotapes, so that it's--on any of our videotape equipment I mean, our VCR playing equipment upstairs.

THE COURT: You're kidding.

MS. LEWIS: No. We don't. I was shocked when I first discovered that. But unfortunately, we don't. So it's very difficult to search through as you can imagine because you have to stop and listen periodically to what's been testified to, and it's a very, very difficult process, as we're discovering at the moment, to find things on the videotape. So the practical difficulties are going to create problems. In addition, there are some other difficulties.

THE COURT: So are you suggesting that the Prosecution is at some kind of technological disadvantage in this? I mean, do you have access to the same tapes that the Defense has?

MS. LEWIS: We have access to the same tapes. No, your Honor. I'm just suggesting it is a practical difficulty when you're talking about videotapes, videotape testimony, to go through and find the context that the Defense may cite with regard to any particular witness' testimony. In addition, throughout the broadcast of this trial, as the court just mentioned, there are many times when the camera is focusing on other counsel, on the court, on members of the audience, on the Defendant's face. And even though Defense counsel concedes that would not be appropriate to show, there are instances where that happened when the witness was giving critical context testimony. In addition, in recent months in particular, for a good reason I'm sure, the stations who have been broadcasting--the stations who have been broadcasting have been cutting away frequently to commercials as I understand. The revenue was down when they had high ratings, but no commercial time. So there are many times now currently, which I don't know if the court's aware of this since you're here on the record, when they're breaking away to commercials.

MR. COCHRAN: We promise they won't show any commercials during the closing argument.

MS. LEWIS: Your Honor, the point of that is that we may not have a context--if the Defense comes up with what we believe are misleading clips, there may not be a context available from the live broadcast readily available to us for us to supply the context.

THE COURT: Well, Miss Lewis, let's suppose that as one of the requirements, I've already indicated that a likely restriction would be that the videotape would only be of the witness' testimony only, no other views allowed, that these would have to be previewed and any preview was likely to require a citation to the transcript as to where it's coming from so that both sides have the ability to look forward and backward. And both sides have the advantage of having the real time transcript on your computer disk. You can do word searches back and forth. I mean it's pretty easy to find. That's why I've given you all this fancy, smancy stuff.

MS. LEWIS: All of that is wonderful when it comes to the record. And as most attorneys rely on when it comes to closing argument, we all rely on the record when we want to quote what a witness has said. The media broadcasting is not part of the record in this case. And for the practical difficulty which I mentioned in terms of searching the videotape--searching the disk is not a problem, but to have the jury presented with something that this witness, a witness has said out of context and then to stand up here and try to read the context testimony or even put the context testimony in writing on the elmo doesn't make up for their advantage that--that side's advantage in having shown the live testimony as to the point the Defense wanted to make critical. Now, there's some other problems as well as--which I've set forth in the brief. So I won't go on at length.

But the angle of the camera is at a high angle. It is high up in the courtroom. And to point to the witnesses in a downward angle and quite to the side so that the demeanor observed by the lens is not the same demeanor that these jurors who are sitting lower than the witness or substantially level with the witness enjoyed, so that the demeanor is not even the demeanor that was had on the record if there could have been a record in terms of the eyes of these jurors and what they saw when they looked straight around at the witness testifying, it's not the same. So it does not portray the same image that these jurors captured in their minds' eye. So it is not a truly representative angle. And it reminds me of--I'm not that big a sports fan, but in football games, I know there's quite a bit of controversy over use of the instant replays because, depending on what angle is captured, something may not have appeared to be so. Now, this is less important when you're talking about a person talking, but it still demonstrates the point that it is a different perspective from what the jurors had. So it doesn't necessarily at all record or be the best--is the best recordation of that witness' testimony.

So--and, your Honor, we've heard throughout the course of this trial from both sides on what everyone's intentions were and the intentions when it came to witnesses and intentions when it came to who was going to be called by either side, and Miss Chapman makes the point about Mr. Cochran's intentions at this point in time. Suppose the People after the People's opening argument, perhaps Mr. Cochran might want to change his intentions with what he uses. That will consume time throughout the trial--I mean throughout the closing argument and during argument. There's additional practical considerations. We're not ready to preview it. If the court does allow this, the Prosecution is not yet in a position to be able to show the other side what we have and I don't--I can't even make an accurate representation yet to the court in terms of when we would be able to do that. Monday is a Jewish holiday and, you know, the lead Prosecutor in this case needs to be here for something like that, and that would certainly be unfair of the court to require any preview be made on that particular day. So that there are a lot of practical problems, your Honor. And we do enjoy, as I mentioned, the benefits of this elaborate graphic presentation system through the elmo and the monitors to the jury, and that can be effectively utilized as well as all the traditional means and as well as any videotape which was shown during trial and was entered as an exhibit. Any evidence that came in as the case--into the case as evidence, of course, they can use the visual equipment to portray that. So they will--both sides will have the luxury, if there's any videotapes they want to display, of having that ability of displaying some live action, for lack of a better word, to break up what might be a monotonous argument by doing that. So the practical problems clearly outweigh any usefulness this could have. In addition, your Honor, it's very likely, given the number of witnesses we've had in this case and the vigorousness with which it's been litigated on both sides, that this would prolong the length of closing arguments for both sides, not only in litigating what's going to be used and allowed to be used, but in the actual presentation of these things because they'd have to be explained and set up in advance as to what the witness was saying at the time. And the court I know is eager, as are the Prosecutors, to get this case to the jury. That is our foremost consideration, and it's--this is something with regard to closing argument that has too easy a potential to be misused. We do not enjoy practicalities in terms of the technology or the turnaround time with which we would be able to glean the context and situations where the Defense might want to use it. And the court--I submit the court's exercise of discretion should be in favor of not allowing this for either side. It's simply not necessary and could easily cause--prolong litigation, undue consumption of time both before and during closing argument.

THE COURT: All right. Thank you, counsel.

MS. CHAPMAN: With respect to Miss Lewis' concern about the practical aspect of this, it seems to me that it's far more practical to preview the videotape than it would be in a normal closing argument situation where counsel would simply refer to the reporter's transcript and then opposing counsel would have to look up the transcript at that moment without any prior warning at all except for at that moment's time. In this--in this matter, we're going to have a day before closing arguments where the People will have an opportunity to see everything that's going to be presented. So it's going to run much more smoothly than it would if simply a transcript were used.

THE COURT: But Miss Lewis does raise the issue that we have agreed to be in recess on the 25th.

MS. CHAPMAN: It's my belief that that preview session is not going to take very long. I really don't anticipate that the Defense is going to use a great deal of videotape. I don't expect that the Prosecution is going to use a lot of videotape since they're opposing this motion. So whatever we do, I think it can be done in a short amount of time. We can do it first thing Tuesday morning.

THE COURT: When do you anticipate your side would be able to isolate those passages at least by reference to the reporter's transcript? Say by 5:00 o'clock Friday?

MR. COCHRAN: Yes.

MS. CHAPMAN: Yes. By 5:00 o'clock Friday.

THE COURT: All right.

MS. CHAPMAN: Okay. With respect to Miss Lewis' arguments regarding the angle, Mr. Blasier points out that each of the jurors had a different perspective from one another. So I really don't think that that is of primary importance. And it's also interesting that the People are arguing about the time limits in closing argument. It was the Defense position that closing argument itself should be limited in terms of time and the Prosecution wants to have an unlimited amount of time to argue. Obviously, since we're arguing for a limited amount of closing argument time, then we would fit our videotape into that amount of time. As I emphasized over and over in this argument, we don't intend to use a lot of the videotape. I don't think it's going to take a lot of time for the court to preview and I don't think it will take a lot of time in closing argument itself.

THE COURT: I suspect that all 10 of these snippets aren't going to come as any surprise as to which 10 they are.

MS. CHAPMAN: I don't think so.

MR. COCHRAN: I don't think so. Exactly 10. I'm thinking you can probably guess.

THE COURT: I could guess as to which--I could guess at least as to six or eight of them.

MR. COCHRAN: I'm sure.

MS. CHAPMAN: But it seems like we should cross this bridge as we come to it. The court is going to have to make a determination at some point as to what is appropriate with respect to the exhibits and graphics, and we'd just like to put the audiotape and videotape along with that. Obviously, if the court finds something inappropriate in any of the graphics or demonstrative evidence or videotape, the court will say so and rule that to be inadmissible. So I ask for an opportunity to preview to the court and counsel what we intend to use, and then the court could make its ruling at that time.

THE COURT: All right. Thank you, counsel.

MS. LEWIS: May I make a couple of additional points, your Honor, please, briefly?

THE COURT: If it's absolutely necessary, Miss Lewis.

MS. LEWIS: We don't have all of the taped proceedings in this case. We have made a valiant effort to do it throughout the trial, but there have been times when the equipment malfunctioned. Other times, we simply didn't do it. So not only is there a practical problem from our point of view in locating the context and so forth, but we may not even have the tape, even assuming there was live coverage. And there's an additional point which I did raise in my brief that I wanted to mention, that the--there are many instances where the--well, I think in every instance if I'm not mistaken, the logo or channel number of the broadcaster is visible at some portion of the screen, which would have to be excised out. It would be inappropriate to draw the jury's attention to the fact that the media has been broadcasting this. I know they are aware of it, but that would only heighten it when they're staring at a witness since they're not allowed to watch television coverage or anything, I recall that, when they're back at the hotel since they've been sequestered. In addition, there are comments that appear in much of the live coverage underneath the witness, description of what they're testifying to or some context which is perfectly appropriate in terms of the media providing entertainment to their viewing audience, but totally inappropriate, again, in terms of appearing to have some sort of an official endorsement because of the professional manner in which it's displayed of any--any description of the witness. May I have just a moment?

(Brief pause.)

MS. LEWIS: In addition, if any of the footage that's used is news coverage of the--any portion of the testimony as opposed to the channel 5 or CNN or court TV's live broadcast, that too is going to be demonstrated by whatever it is on--that's on there with the symbols and statements and so forth, and, of course, that would highlight in a--totally improperly whatever that news organization felt appropriate to show that day. That would give it extra emphasis or extra authority or extra deference that the jury, of course, is not allowed to give and that would be a distraction as well. There's a lot of practical problems from our humble point of view as civil servants with a--I notice there's a lot of us on this case, but we still have limited abilities and limited technology and limited dollars, especially to spend on something such as closing argument when we do have these wonderful courtroom graphics available to us.

THE COURT: All right. Thank you, counsel. All right. The request to be allowed to use videotape, quote, unquote, snippets of testimony during the course of argument will be granted under the following terms and conditions: The snippets or the outtakes that can be used may depict the witness and the witness only, that it must come from videotape that is available to both sides, that the parties--that the Defense shall file by the close of business Friday, which I will deem to be 5:00 o'clock P.M. on Friday, the 22nd, the transcript citations of the excerpts that they wish to use. Because the Prosecution has technical disadvantages apparently, I'll allow them leave until Tuesday morning, the 26th, to submit their citations--

MR. COCHRAN: Your Honor, can I say something?

THE COURT: No, counsel--to the transcript. And we will have the screening of the snippets or any outtakes in reference to the transcript at 8:00 A.m. On Tuesday.

MS. LEWIS: Your Honor, you said filed by 5:00 P.M. did you mean to indicate as well the Defense should fax or somehow supply a copy--

THE COURT: Well, I assume you all still will be here Friday afternoon.

MS. LEWIS: We will I assume.

THE COURT: All right. But the court will preview each one of the outtakes that are to be used.

MS. LEWIS: Thank you.

THE COURT: Thank you, counsel.

MS. CHAPMAN: Thank you.

THE COURT: All right. Length of argument argument.

MR. COCHRAN: Ready, your Honor.

MR. DARDEN: Miss Clark is on her way, your Honor. We thought we were going to the motion to suppress.

MS. LEWIS: Mr. Uelmen is trying to catch a plane out. Perhaps he would enjoy doing the motion to suppress--

MR. UELMEN: No. I'm here for the--

MS. LEWIS: The court has--your Honor, we are--

MR. COCHRAN: Defense is ready to get Miss Clark down immediately.

THE COURT: I thought we had an agreement on order of our discussion, that the length of argument was going to go first and then the videos. Let's move on to the additional motion to suppress.

MS. LEWIS: Here she is.

MR. COCHRAN: There she is now.

THE COURT: All right. Good afternoon, Miss Clark. Are you prepared to go forward with the length of argument discussion?

MS. CLARK: Yes.

THE COURT: All right. Mr. Cochran.

MR. COCHRAN: Your Honor, I think it's poetic justice that as I stand before you to argue the length of motion--argument for closing argument, I want to make this a short argument. I think that's very appropriate. Our papers I think will speak for what we are talking about here, your Honor. We've all seen this jury. We've seen their faces. We've seen and we remember that during voir dire, we promised them that they would get this case in April. They will now get this case close to October. That probably says something about all of our credibility, and it seems to me that in order for this jury--to restore their credibility in the counsel, certainly at least we need to limit our argument. I think one of the worse things we could do is to get up and try to talk to them for two or three days based upon some idea that this case is complex. They've heard the evidence. You've said so many times, your Honor, these are smart people, they've heard the evidence. Certainly we hope they've kept an open mind, but they know what they feel about all these witnesses at this point. I think some of your recent rulings have tried to tell us enough already, and that's really the theme that we picked up here from you and from the jury. It seems that everybody understands that except the Prosecution. And so toward that end, we've said, given this case, given all of our experience in trying cases, we believe that we should be able to concise our arguments, even with videotape, into one full day, both sides. If Miss Clark starts to argue on Tuesday, she has from 9:00 until 5:00 or whatever hours you said, if we start to argue on Wednesday, we have a like amount of time. In fact, I think what really we're saying is that she has perhaps a little less than we do because in the total of her argument, it's going to come to the same amount. In other words, we wouldn't have all day Thursday to try to rebut what we do on Wednesday. That would be unfair I think we all agree. But at any rate, what I'm concerned about is that they get up and try to argue for like two and a half days. And then let's assume that she does. Let's assume it's unwise to try to argue two and a half days next week. We would then go to Thursday afternoon. You are going to be dark on Friday and Monday. What are we to do? Start my argument on Thursday afternoon, then come back on Tuesday? I want to tell you, I had that experience during opening statement. That's not fair to Mr. Simpson or to the jurors.

THE COURT: That might be an ideal time for you because you could leave them with the last thought over a long weekend.

MR. COCHRAN: Well, if I thought I could finish it in a half day, that might be an ideal time. But I think, your Honor, we need a little more than a half day. So what I'm asking really is for some fundamental fairness at the end and I am asking you to do what you've done so very often in this case, is use your discretion. This is an area of discretion. You want to protect these jurors, and that's all we are saying.

We're not trying to dictate anything anybody does, because in the final analysis, we have to use our own good judgment. And I think Miss Clark will do that also. But it seems to me, as very often in this case, we need some guidelines to help us use our good judgment. And all I want is fairness. You know, her rebuttal argument is limited to rebut what we have. So if you give us a finite amount of time, if we have six hours and she uses five and a half, then she's going to be left with only a half hour at the end. So I think that's the way it should be carved out and I think that's fair to everybody. I just venture to guess if you submitted this to the jurors, they'd probably ask for less than a day of argument, if it was left up to them. And so I think we have to have them in mind. After all, this is supposedly for them to tie this case together. We welcome this opportunity, but I think we have to make the most of the opportunity. And in order to make the most of the opportunity, it seems to me we do it in a concise, cogent, persuasive fashion so these people get the message. That's all I'm really asking. So specifically, we ask that the argument be limited to one day per side--we understand what is going to happen--and we get this case to the jury by the end of Thursday, September 28th, 1995, this case goes to that jury. We want to be part of that, your Honor.

THE COURT: All right. Thank you, counsel. Miss Clark.

MS. CLARK: Thank you, your Honor. We filed a brief with the court in response to this request. I find it interesting there was case law in the area. I didn't think there would be. People versus green, it's almost a hundred years old, but it has been the recognized principal for over a hundred years that the length of argument has to be governed by the length and the complexity of the case. As the court has seen, this is a very complex case, made more so by the manner in which it's been tried. It's a physical evidence case. This court knows very well the complexities of the circumstantial evidence premised on physical evidence. We have had enormous amounts of scientific testimony. We have had testimony from a number of experts on each area of physical evidence, blood, hair, fiber as well as the Coroner. It's been extensive.

If it was the intent of the Defense to get this case quickly to the jury, then the Defense did not have to spend almost a week talking to the jury through their expert about the movement of an envelope a few inches because the Coroner moved the body. If the Defense wanted to limit the time that it took this case to get to the jury, it did not have to question Detective Lange for eight days on cross-examination. If the Defense wanted to limit the time it took to get this case to the jury, it did not have to question Dennis Fung for nine days. As the court has seen repeatedly, our witnesses have been subjected to the most thorough blistering cross-examination I have ever seen in 17 years of practice. It has been lengthy, it has been detailed and I suppose reasonable minds can differ as to whether or not it's been overdone. Be that as it may, many, many issues were raised. We bear the burden of proof. It is very clear that the reason for the Defense wanting to limit closing argument is to gain what they perceive to be a tactical advantage. I understand the tactical advantage that they want to achieve here. The Defense says they can tie their case together in just a few hours or maybe a day. That's because they have very little to tie together, your Honor. This was not a semantics Defense in terms of evidence.

THE COURT: I see you are arguing already.

MS. CLARK: Yes. Well--

MR. COCHRAN: Counsel, this is as to time.

MS. CLARK: It is an argument about argument only in this case.

THE COURT: Only in this case.

MS. CLARK: That's true. I think--

THE COURT: No. I mean, that's not true. I mean in other cases, I've talked to other Judges, the Judge who handled the night stalker case, the Judge who handled the McMartin case, the Judge who handled the Denny case, and we've all discussed whether or not it's an appropriate exercise of the court's discretion to limit argument. So your basic argument, it's not fair because it's our burden of proof and we have a lot of stuff to prove.

MS. CLARK: Yeah. That's right. We are the ones that have a lot to tie together. We're the ones that have literally a mountain of evidence to weave together with the testimony of lay witnesses concerning motive and opportunity to present as a cohesive fabric to this jury.

THE COURT: But isn't it a very powerful argument that the Defense makes, that this court should do everything it possibly can to encourage counsel to be precise and concise in their argument and that a time limit would cause both sides to evaluate what it is that's important in this case and what isn't, what the big picture is and not get lost in the minutiae of 12 days of argument?

MS. CLARK: I agree with you, your Honor. I don't think--I don't think the court needs to worry that the People are going to get lost in minutiae. We're--you can--we're professional. We don't attempt to sit home. We would be able to--we are going to make every effort to be as concise as we can. We know that the jury is tired. We know that they don't want to hear a lot of "We's." We know the best thing to do is get it to them as quickly as we can.

THE COURT: Miss Clark, taking into consideration the length of the trial, the complexity of the case, the number of witnesses that you've called, the burden of proof, what do you think is a reasonable amount of time for the Prosecution for opening and closing arguments?

MS. CLARK: How can I possibly estimate that not knowing what the Defense is going to do or how long the Defense will take, what they are going to go into? I can't.

THE COURT: What do you think your opening argument will be?

MS. CLARK: How long it will take?

THE COURT: Yes.

MS. CLARK: I think--I can't. You know, your Honor, it's unfair at this point. We have not--as the court knows, there's going to be graphics, you know.

THE COURT: Miss Clark--

MS. CLARK: I can't.

THE COURT: --let me put it to you this way. You know, we discussed at the very beginning of this case limitations on the number of counsel who will argue and that the court was contemplating a limitation on the argument. So you should have some rough idea of how long you believe it's going to take.

MS. CLARK: Very rough. I don't know. The opening portion of the People's case would probably take roughly two days. And I don't think that's a long time considering the amount of evidence we have here, a civil evidence case. The problem I really have is estimating the amount of time on rebuttal. I mean, you're asking me to estimate in a blind. I don't know what they're going to do.

THE COURT: No. That's why I confine my asking you to estimate to your opening argument.

MS. CLARK: Uh-huh. I mean, that's a very rough estimate without having paced through it with the exhibits and laser boards.

THE COURT: And I assume that your colleagues will assist you in marshaling all the exhibits, and I've indicated to you that my staff will be available to both sides to organize. I mean, we've prepared, Mrs. Robertson, a list of exhibits, and we will do everything we can. All of my law clerks will be standing in the wings with exhibits. You ask for the exhibit and it will be produced.

MS. CLARK: And I appreciate that, your Honor. That will be very, very helpful to us. But a large part of the presentation will involve graphic displays that will not involve the court's cooperation, although we do accept it as the very gracious offer that it is. I would also indicate to the court that the real I think intent of the Defense motion is to limit the rebuttal by the People. What they'd like to see is their case, their presentation not attacked as thoroughly as it can be and will be, and that's the limitation they really seek and that's what would be so unfair. I've never had--I've never tried a case where the court has imposed a time limit. And I'm not saying that that's a precedent for anything. All I'm saying is that I have never--over-lengthy argument has not been my problem with juries, and I don't intend to break that habit now given the fact that the jury is tired and we don't want to tax them more than we already have. I think that the court can trust me when I say absolutely that there is going--we will trim our sails and be as tight and concise as we can possibly be. But to impose a time limit in a case that already has gone on this long with this much evidence produces the unfair burden only to the People. This is a motion that is punitive only to the People. The Defense can get up, raise questions, confuse evidence, misstate testimony that quick. And in a case of this complexity, it's easy to do, create the confusion and the distortion. It takes something for the People to unravel it and put it back together and put things in their proper context for the jury, and limiting our ability to do is nothing but limiting the People's right to a fair trial, limiting our ability to explain to the jury how the evidence has overwhelmingly proven the Defendant's guilt, and there can be no justice in that. And what the People propose, we don't propose to limit the Defense argument. We propose that the Defense take as long as they think they need for their argument. And let me remind the court that the People's opening statement was shorter than the Defendant's, even when you put it altogether and you take out the delays. So we have precedent here for the manner in which the People present their case, and all I'm asking from the court at this final 11th hour is, please give us the chance to pull it together for the jury. After all of the obstacles that have been put in our way with things that we could never have anticipated, we need the opportunity to explain this to the jury in an unfettered manner and to be trusted as the professionals that we are that we will not abuse the jury's patience too much.

MR. COCHRAN: Good afternoon again, your Honor. Your Honor, I'm certainly not going to get personal and talk about misleading and distorting, all that stuff. You know, I want to elevate the discussion. You know, this is not about one side or the other. This is about the search for truth, Judge.

And as we said before, the--Miss Clark stands before you and says, "Trust us, we are going to get this case over with real quickly." The same people say "Trust us," and they took eight months to put their case on. They talk about eight months. We had eight weeks. And they're talking about our cross-examination. So, Judge, you know, you can trust us all you want. I am saying trust us, but give us some direction and some guidance. That's why you're the Judge. And you have not been bashful about doing that. One thing I'm concerned about, Miss Clark kept talking about graphics. We haven't seen any graphics. I think there must be some--the real reason I'm back up here is, we want to see their graphics obviously as early as possible before they start because we're entitled to do that. Talking about displays and various things, when are we going to see those? So I hope the court will take care of that. Let me get to her response. You know, there are complex cases. The World Trade Center case, the Judge in that case giving the lawyers a time limit, four hours. We have this all the time. Judges give you--say, counsel, you have four hours to finish your argument, you have two hours, you have one day. I mean, this is not unusual at all. Lawyers don't stand up before you and say, please don't do this to us, your Honor, the People are being punished. Lawyers deal with what they're dealt with. When you ruled this morning, you didn't see us crying. We just moved on to the next issue. We don't do that. That's what a professional does. You move forward.

THE COURT: Most of the time.

MR. COCHRAN: Well, sometimes. One time we did cry, your Honor. I have to admit there was one ruling that made us cry a little bit. Short of that, you have to admit, throughout this whole trial, we have usually moved forward in the water like a shark, and that's what we want to do.

THE COURT: That's a bad analogy.

MR. COCHRAN: Not shark. Probably not a good analogy. We moved forward in the water like a dolphin, graceful. I hope that's better. But seriously, Judge, we don't stand before you asking--you know, it's not a question of doing a favor for the Prosecution, doing a favor for the Defense. This is about 14 people who get $5 a day who've been here, Judge, since September 26th, 1994. I don't have to tell you that.

Tuesday will be the first anniversary we went upstairs and met these people. We promised them certain things. And we're lawyers. We're professional. Let's get this case over. It's not any advantage we're trying to get. If I argue two days, I could argue four days. I feel so passionate about this case, I could argue from now on. I just have to concise it. We're not trying to shorten anything. She hasn't seen passion yet. I told them once before, they're in the fight for their lives, and now they understand. We are going to argue in that same vein next week. It doesn't matter if I argue one day or one week. They'll understand how we feel about this man's innocence. So it's not about time. I'm just asking you step up, give us some rules. We'll abide by them. That's all I'm asking. And for heaven's sakes, give us--we want some time to see those graphics. Thank you, your Honor.

THE COURT: All right. Thank you, counsel. Counsel, in contemplating limiting the argument here, I had to take into consideration a lot of things. First of all, the unique facts and circumstances of this particular case, the conduct of the lawyers and their argument to date, the length of time that this trial has gone on and the increasingly limited endurance of our jurors. The court's experience--I had to go outside my own experience to talk to other Judges to see what their experience has been and to hopefully gain some wisdom from them; and in discussing the matter with Judge Tynan, who tried the night stalker case, which went on for eight or nine months, discussing the matter with Judge Pounders who tried the first McMartin case, which went on for almost two years--and if I recollect correctly, Judge Tynan's case involved 17 counts of homicide, highly complex issues involved in that case and just putting together all the evidence--and my own experience as a trial lawyer--and I recollect one argument that went on for four days where the Defendant was charged with five counts of murder in a circumstantial evidence case. But I also watched the jurors' eyes when I was arguing to them. And that's one of the great benefits of attorney argument, is that the argument is to the jurors; and when you are arguing to the jurors, you look at them eyeball to eyeball and you can tell when they're being receptive hopefully and you can tell when you're boring them or when you've just said something that they don't believe.

That's one of the great advantages of argument. I'm very concerned about maintaining control of this proceeding, especially at this point given the limited endurance of our jury, and I am sorely tempted to impose a time limit, but I am not going to do so. And I'm going to trust the lawyers. But by having said that, I will come back to the start of this argument with probably three good nights of sleep. So I'll be on the top of my game as far as staying on top of the lawyers and I will make sure that there is no redundancy and that we keep moving and I will not hesitate to call you over to the sidebar and tell you to get moving or move on to something else and I won't hesitate to do that also in front of the jury if I feel it's appropriate. So be prepared, be ready, be concise, knowing that I'm usually tolerant of lawyers, but this jury is going to have the last say. All right.

MR. COCHRAN: Your Honor, can we inquire about the graphics, how we are going to see those?

THE COURT: That's another issue, counsel.

MR. COCHRAN: Could we--I understand that, your Honor.

THE COURT: Another issue.

MR. COCHRAN: We need to know about that. Also, just a question of point of information. If Miss Clark does take say two days, there is a chance there will be a break in our argument.

THE COURT: I understand that.

MR. COCHRAN: We are set in concrete on the 29th?

THE COURT: Unfortunately, we are.

MR. COCHRAN: Very well.

THE COURT: When I made those plans, I had no idea we'd still be here--

MR. COCHRAN: I'm not asking you to--

THE COURT: --a year later.

MR. COCHRAN: I understand.

THE COURT: Okay. No. Those were plans that were made a year ago.

MR. COCHRAN: We thought the case would be over in April.

THE COURT: All right. 1538.5.

MR. COCHRAN: Your Honor, about the graphics--

MS. CLARK: We don't have them yet.

MR. COCHRAN: We don't have our video snippets either. You want to see them.

THE COURT: We'll see them before they're used.

MR. COCHRAN: Can we see them Friday afternoon, your Honor, 5:00 o'clock?

MS. CLARK: They won't be made.

THE COURT: Tuesday morning, 8:00 o'clock. Tuesday morning, 8:00 o'clock.

MR. COCHRAN: 8:00 o'clock Tuesday, and that's going to be the time we see them?

THE COURT: That's the whole enchilada. Be here 8:00 o'clock.

MR. COCHRAN: Is that for everything?

THE COURT: Snippets, boards.

MR. COCHRAN: Everything.

THE COURT: Everything.

MR. COCHRAN: We have until Tuesday, 8:00 o'clock. Thank you. That vacates the 5:00 o'clock Friday?

THE COURT: No. I want the transcript--I want the transcript notations on Tuesday. Mr. Uelmen, good afternoon.

MR. UELMEN: Good afternoon, your Honor. Your Honor, at this time, the Defense would move to reopen the motion to suppress the evidence seized without a warrant from Mr. Simpson's Rockingham residence on the morning of June 13th, 1994 and all of the fruits thereof so that this court can consider the testimony received yesterday from Detective Vannatter, from Special Agent Wachs, from Larry Fiato and Craig Fiato as relevant to the motion to suppress.

This motion, of course, is based on the same grounds of newly discovered evidence that we asserted with respect to the evidence related to the credibility of Detective Fuhrman. I believe it raises essentially the same legal issues, and we believe that the testimony that your Honor heard yesterday was not only relevant for the jury in assessing the credibility of Detective Vannatter with respect to the testimony they heard, but of even greater relevance for this court to consider in assessing the reasonableness of the entry to the premises on the morning of June 13th, 1994. Mr. Kelberg posed the question yesterday, what reason would Detective Vannatter have to lie about when O.J. Simpson became a suspect in this case. And the answer to that question goes back to the motion to suppress that was filed in this case in late June of 1994, a motion that created a need for a cover story and a need to stick with that story throughout these proceedings. The first explanation that was ever given of the discovery of the glove is found in the affidavit for a search warrant that Detective Vannatter executed in the morning hours sometime between 7:00 and 8:00 clock in the morning on June 13th, right after the glove had been discovered. And it's ironic that among all of the misrepresentations and untruths contained in that affidavit, there is one kernel of unvarnished truth, and that was the statement while securing the premises, the officers discovered a glove behind the Simpson residence, that the discovery took place in the course of activity that involved the securing of the residence which suggests that they were engaged in a search at that very moment. And the initial issue we raised in the first motion to suppress simply based on the representation contained in that affidavit was that police are not entitled to secure premises until they have probable cause to make a search. So it puts the cart before the horse for the police to say, while we were securing the premises, we found the evidence that we believe now gives us probable cause to get a search warrant to search the rest of the residence. And that's what created the need to come up with another story, another explanation, and that was the first time we heard the explanation that, "Well, we really didn't go to the premises in order to look for a suspect or look for evidence. The only reason we went to those premises was to notify Mr. Simpson of the death of his former wife and to make arrangements for the disposition of the children, that Mr. Simpson did not become a suspect until we found a glove."

Now, that's not to say that there was any legal necessity for them to deny that Mr. Simpson was a suspect. Legally, if an officer has a subjective suspicion of a suspect, that doesn't invalidate otherwise reasonably objective circumstances that create the necessity for a warrantless entry. But the real crux of the relevance of this evidence with respect to the credibility of Detective Vannatter is the inconsistency that it creates in the entire explanation of what was going on that morning, of what the officers were really up to when they went over the wall and started looking around the premises of Mr. Simpson's home. And when you put the context of what they actually did against the alternative explanations, I mean, we have two alternative scenarios here. One is, "O.J. Simpson was not a suspect. We were only there to make a notification, to make arrangements for the children; and once we discovered that speck on the door of the Bronco, to make sure there weren't other victims on the premises or people who needed assistance," versus the explanation of what's really going on here is a search. "We're looking around for whatever we can find because we want to solve this murder." And the obvious suspect right off the bat, right off the beginning of this whole process is O.J. Simpson.

If you look at how they conducted themselves once they arrived at the premises, it's much more consistent with the scenario of a search than it is the scenario of a notification; the way they entered Mr. Kaelin's room, searched the room, looked through his clothing, the way they questioned the persons who were on the premises, the amount of time that they spent on the premises before the glove was even located, actually entering the premises shortly after 5:00 A.m. And then finding the glove more than an hour later, the quickness with which they were able to ascertain where Mr. Simpson was and to actually call him and speak to him and notify him and the glove actually being found after that had occurred, the fact that they didn't even look upstairs. I mean, if their real concern was, "We're looking for other victims," the fact that they didn't even go upstairs to see if there were any victims upstairs, all of this activity--

THE COURT: But couldn't that also be argued that if it wasn't intended to be a generalized search for evidence, that they didn't need to go upstairs? That's what the Prosecution is going to be--

MR. UELMEN: Well, the question whether they possibly did go upstairs. But the fact that they're saying, "We're doing an overview of the premises to look for victims," is hardly credible if they limit that looking for suspects to areas where they think they might find evidence. And at that point, there's no question but that the circumstances of the investigative activity they were engaged in led them to look for evidence behind the house. Nothing that they encountered initially led them to look for evidence upstairs. But if they were legitimately looking for another victim, there's no reason that they would not have gone upstairs. So in terms of consistency with their activity and behavior in the early morning hours, we would contend that all of this is truly consistent with the version that Phil Vannatter offered to the Fiato brothers and to Agent Wachs, that, "O.J. Was our suspect from the beginning." It is also consistent with the modus operandi described by Detective Mark Fuhrman in terms of the way that he goes about police investigative activities, that a good policeman simply follows his instincts, finds the evidence and then makes up the explanation or the probable cause or whatever justification may be needed later. And we believe that your Honor should consider together the newly discovered evidence with respect to Detective Fuhrman's credibility along with this newly discovered evidence with respect to Detective Vannatter's credibility. Now, I know that your Honor previously ruled that the newly discovered evidence regarding Detective Fuhrman's credibility did not require finding by the court that Detective Fuhrman was credible because it really made no difference. His activity the court found was corroborated by the testimony of Detective Vannatter. But, of course, your Honor can't simply now reverse the process and say, well, we don't have to worry about Detective Vannatter's credibility because he was corroborated by Detective Fuhrman. There's only two detectives who testified in the course of this motion to suppress, Detective Vannatter and Detective Fuhrman, and we believe that in the face of this evidence, that seriously undermines the credibility of both of these officers. The court is left with very little in terms of believable justification for the search activity that went on in the early morning hours. I don't believe your Honor can simply dismiss the evidence undermining Detective Vannatter's credibility as "BS." We're talking about two different incidents that occurred at two different times. We're talking about three different witnesses who heard statements to the effect that Mr. Simpson was a suspect from the beginning.

In view of the importance attached to that revelation by Craig Fiato, assuming that he had very important and very damaging information to the Prosecution in terms of the O.J. Simpson case, that he would be motivated out of revenge because he felt he had been poorly treated or poorly used by the D.A.'s, to make this revelation suggests that it wasn't regarded as simply "BS" in the context in which he heard it. And, of course, I think what your Honor really has to ask yourself is whether the "BS" came from the witness stand or whether the "BS" came over a beer in a hotel room. I think all of the circumstances suggests that we may have heard more "BS" from the witness stand than we did in that hotel room. And, finally, this information can't be dismissed as a joke. Now, I was trying to think of what the joke would be for the punch line O.J. Was a suspect from the beginning, and I have to conclude that the only way you can explain that as a joke is that the joke was the fourth amendment. And I think we have to ask ourselves whether we can really be surprised if police officers treat the fourth amendment as a joke if we don't take the fourth amendment seriously in our courts.

Believing that four detectives left the scene of this brutal murder unattended and all went to Mr. Simpson's residence at 5:00 o'clock in the morning simply to make a notification, that at that time, Mr. Simpson was not a suspect requires us to really suspend our credibility, our credulity, and perhaps the only person in America who would still believe that that was the only purpose of their visit would be a Judge ruling on a motion to suppress. If the police can expect when they come to court that the kind of testimony presented in this proceeding will be taken seriously, the game of police perjury will continue. And the only way we're going to put that game to a stop is to start to take the fourth amendment seriously, to demand that when police dispense with the fourth amendment requirement of a warrant and probable cause in order to engage in search activity, they have to come to a court and get justification and they can't just make up the reasons afterwards to present a plausible explanation. If we wanted to demand that kind of misconformity with the fourth amendment, then we've got to enforce the fourth amendment.

THE COURT: People.

MS. LEWIS: Your Honor, once again, I've sat here and listened to the Defense bluster and engage in a lot of rhetoric when it comes to the search and seizure issue. They have attempted to make this record, the same points repeatedly with this court to no avail. Now, we have here, of course, some newly--it's not really newly discovered evidence. I don't even know if frankly there's--well, I don't know how to characterize this since it's evidence that happened, if it happened, after the testimony at the motion to suppress. So it's--while it's newly discovered, it's also after the effect evidence. At any rate, let's--now, what I heard Mr. Uelmen saying is that they were reviewing their motion to suppress the entry onto Rockingham and that's all they're doing. So I'll address just that focus. And that, of course, was the hearing that was initially heard by the magistrate in municipal court and which this court has had two occasions now to have to reconsider if that would be affected by anything newly discovered by the Defense, the most recent being whether the Fuhrman tapes would have affected that emergency ruling, the court did not have to reach that issue. Now, there's a couple reminders I want to make. First of all is that the bishop court--bishop case, which is cited within my last response to their last motion to renew based on the Fuhrman tapes, is that that court is the one that construes that newly discovered evidence as applied to a motion to suppress made below and it causes the Superior Court, which is acting as the reviewing court in this instance, that the court should look to new trial motions in determining the standard. And we know from my cite of Wicken to the court and Epstein and we know from the bishop court itself that the appellant courts consider evidence, newly discovered impeachment evidence as evidence which tends to impress weakly because it doesn't go to the heart of what was testified to, but it's only calling one of the witnesses a liar in something that witness testified to indirectly rather than directly by direct proof of something other than what the witness testified to. So we do start off from the base that we have many types within this trial on a collateral matter, and that is whether indeed there was any--

THE COURT: I don't know that I consider a statement that is in direct contravention to testimony as being collateral.

MS. LEWIS: As I was saying this, I have a reason for saying that, your Honor. It's the inconsistent statement of the witness who testifies. So in that sense--but still is collateral, but the main reason I say that, your Honor, and the point I want to make early on in talking to you about this motion is that the state of law now, then and for quite a few years now is that the subjective intentions of a police officer, whether it be to arrest someone, to detain someone or to enter a residence in exigent circumstances, is not controlling anymore. That was pre-proposition 8 law. And one case in particular I would like to cite to the court because it's a 1995 case, People versus Hull, H-U-L-L, at 34 Cal. App. 4--

(Brief pause.)

MS. LEWIS: I'm sorry--34 Cal. App. 4th, 1448. And in that particular case, which was in 1995 as I mentioned, the Defense argued in this case that the court had to determine whether the officers' entry in to arrest the Defendant was both objectively and subjectively reasonable before it could decide the search and seizure issue or whether the entry was appropriate under exigent circumstances, and the Court of Appeal directly held no, that was old law, that was pre-prop 8 law. You know, we have prop 8, Lance W., remember all those cases, which I know you've heard countless suppression motions with regard to subjective intent of an officer no longer controls and it doesn't frankly even have any relevance in the instant situation because all of the circumstances known to the officers warranted what they did. And what I'm pointing out is the most obvious thing. I won't save it until last, but in addition to the newly discovered evidence of the Fiato brothers and Agent Wachs yesterday, the court has heard from Commander Bushey, who said he ordered these officers to go over to the house. So regardless of whether Detective Vannatter may have considered Simpson a suspect in his own mind, that's not why he went there. And even if that's why he went there, it does not matter, your Honor, because the law says you look at the objective facts and what would be objectively reasonable for an officer to do and not what was in a particular officer's state of mind, and the hull court makes that plain and clear in rejecting the Defense argument to the contrary. It upheld the exigent search in that case.

THE COURT: 1448, page?

MS. LEWIS: 1448. It may still be in the advance sheets rather than bound volume. But it's final. Somebody double-checked for me with the Court of Appeals. It's still published and final.

THE COURT: What edition is that from?

MS. LEWIS: Happened to be 3rd District, your Honor. But, of course, any state Court of Appeal's opinion is binding on any Superior Court.

THE COURT: Indeed it is.

MS. LEWIS: As you are well aware, I know.

THE COURT: Yes.

MS. LEWIS: I'd just like to throw in that happens to be 2nd District. This does not happen to be--

THE COURT: Just professional courtesy.

MS. LEWIS: Uh-huh. So, your Honor, here we have a few things for the court to consider. We have whether--and the basic premise, remember, is for you to determine whether this evidence would have affected the ruling of the magistrate below. And I submit that when you look at this in conjunction with the state of law, which is the officer's objective state of mind does not matter, and when you look at it all, the newly discovered evidence or the new evidence I should say, including Commander Bushey's testimony that they were ordered to go there to make notification, it's clearly something of too little import to have caused the magistrate below to grant the suppression motion, and that's basically what had to have happened. And if you recall, as I argued the other day, the bishop court indicates that mere relevance is not the standard in terms of whether it would have affected the ruling of the magistrate below. It has to be more substantial evidence, something more substantial and something akin to what the new evidence would be on a new trial motion that could warrant a court granting a new trial and what would likely lead to a court granting a new trial based on newly discovered evidence. And as I pointed out the other day, as Wicken and Epstein remind us, the--for a court to grant a new trial based on a new witness on newly discovered evidence which goes only to credibility or impeachment is virtually unheard of. It's just simply not done because it is considered collateral. And so to go back to that, in terms of talking about collateral evidence, this evidence is collateral in the sense that his subjective state of mind didn't matter. Now, it ended up--Detective Vannatter ended up testifying extensively to that, but I submit, especially if you look at the correct standard that you have to apply in determining whether entry onto Rockingham was proper, he could have been a suspect. There would have been nothing wrong with Detective Vannatter feeling that he was a suspect if he had. The point is, he didn't. But if he had, it is the ex-husband of--excuse me--the ex-wife of someone who is murdered and, you know, that person--until you rule out people and can start to narrow it down, everyone is suspect, so that anyone closely associated with this person is a suspect. So the point to all this is not that his state of mind is critical in terms of the motion to suppress, but only that the Defense has tried to get the jury to disbelieve Detective Vannatter. And it's interesting in this regard that they are only now bringing a motion, renewal of the motion to suppress. I don't know if they watched the news last night and decided maybe they'd better do it for the record or something, but it's amazing to me that was not their first line of attack as it was I believe with the Fuhrman tapes. It's only today as virtually an afterthought, after the jury has heard all this evidence and they've gotten in front of the jury, that they decide, wait a minute, maybe we ought to ask for a motion to suppress as well. So I think their lack of timeliness--well, certainly the court if it were inclined could find it was untimely, but I know this court actually wants to look at it.

THE COURT: Well, no. Actually, what happened is, during the course of the 1054.7 hearings where this information was first disclosed to the court by Mr. Hodgman and Mr. Yochelson, I discussed with Mr. Hodgman and Mr. Yochelson the likelihood that this renewed 1538.5 motion would be one of the obvious consequences of that disclosure if the witnesses did, in fact, after their interview testify in the manner which they did yesterday. And when the disclosure was actually made to counsel--and my recollection, Miss Lewis, is that you were not present during our chamber's conference where these matters were actually turned over to the Defense. That was one of the suggestions, that there would be a renewed 1538.5. So this is not something that comes as a surprise to me that this is here. I think we've all been on notice this is coming.

MS. LEWIS: Well, it's not a surprise because--and we expected it and I even wrote a brief in anticipation of it, which I don't believe the court needs to address this additional matter which hasn't been reviewed. But the fact that we expected it, it doesn't mean we--in fact, we were surprised to the opposite. That just actually drives home my point, your Honor. I don't know if the Defense--I don't believe, because I haven't been told so, that the Defense ever raised it before today, is something that they wanted to do even though we all expected it because we just had that experience with the Fuhrman-McKinny tapes. So we all knew and certainly the Defense knew, having just brought the motion on the McKinny-Fuhrman tapes, that they had the right to do this, and that's why I'm surprised that they didn't do it sooner or didn't give notice, didn't make an issue of it sooner. So I don't think this-- let me put it this way. I believe the record supports the court denying it as untimely. However, I know you to be a conscientious Judge who likes to not have to--not to use that as a ground. So that's why I am going on to talk about these other things, but certainly it doesn't appear to be timely. Just because we expected it doesn't make it timely. I mean a lot of counsel forego doing things, just tactical matters, you know, that are expected and they end up not doing tactical matters. This could have been one of those situations, particularly where they may have felt the gamble was worth it to see if they could have your Honor hear it--have the jury hear it without risking the jury not hearing it by your limiting it only to a motion to renew and the motion to suppress. In other words, so they wouldn't have the evidence considered for two purposes. Maybe they were afraid you'd split the baby or something and not let them put it before the jury if we had a motion to suppress. So there are certainly tactical reasons supported by the record why they could have decided not to bring one, and here now that they had their cake and eaten it too in terms of the jury hearing all this stuff, they have nothing to lose at this point by now bringing up this motion at this last late hour after you've already ruled in their favor with regard to all those witnesses, both Fiato brothers and Agent Wachs, who testified yesterday. So they have nothing to lose whatsoever now. But I submit their initial lack of notification was a tactical decision on their part not to bring it earlier when they should have timely brought it. In addition, there are additional cases besides the hull case, your Honor, that's simply the most recent and is certainly the most on point in terms of being an exigent circumstances case where the officers forced entry into a home. Mr. Uelmen makes the repeated point about the officers' actions once they entered onto the premises. That also reminded me of something if I recollect correctly--and I think I do because I reviewed this recently. Detective Vannatter's testimony was, once they had been at the premises for something like 45 minutes, they had contacted Westec, they knew the Defendant--Westec had no knowledge of the Defendant being out of town. They saw a light on--I forget if it was upstairs or downstairs, but some light in the interior of the residence. I think they saw a light on the outside. I can hear Mr. Cochran real loudly. If he wouldn't mind just cutting it down a little bit. Thank you. So they saw light on in the residence. I believe it was upstairs. But anyway, it was inside the residence. They rang at the bell, they couldn't arouse anyone. Westec said they had no knowledge of him being out of town and that I believe Detective Vannatter indicated he did become concerned for the lives and welfare of the Defendant who was in there. So that flowed naturally. So they did have additional reason besides Commander Bushey ordering them to notify them for the reasons Commander Bushey articulated eloquently in court. They did have good reason to go onto the premises and try to find him. And their actions once they entered the premises were consistent with trying to find Mr. Simpson. They went up to the front door, knocked on it, got no response. They went to the first guest house, the first guest room down there and knocked on Kato's door. He didn't tell them Simpson wasn't home, he didn't know or he didn't say anything at this point in time. I guess he knew because he helped him take off. But the state of the record is, he did not say anything at that point in time to these officers.

So they went on to Arnelle's room while Detective Fuhrman appropriately stayed behind to see if there was anything suspicious about this man who looks like--Kato lives in the Defendant's guest house--considering the murders that had just transpired. Excuse me. He picked up his clothing, asked, "Are these the shoes you wore last night," totally consistent with wondering if he might have been the murderer, looking to see if there's blood or dirt on the bottom of those shoes and then, you know, in terms of Kato describing the thumps. But the other--these detectives, all the three detectives went ahead for their primary purpose, and their primary purpose was to find the Defendant. And that's when Arnelle initially said, "Isn't he home," something like that. And so she was aware. Also about that time, I think that either Arnelle said the maid was off this week or after they first--she let them inside the main house, that they looked and saw the maid's room, which was downstairs, where the bed was made and it was clear the maid wasn't working that night. So they didn't have to worry about her safety and run upstairs for her.

And then they got ahold of Cathy Randa. Cathy Randa told them the Defendant had gone to Chicago, and they got ahold of him there. So all--everything they did was consistent with a search for Mr. Simpson. And for the Defense to reiterate about four detectives going to the Rockingham for these purposes, your Honor, we just heard Commander Bushey say it's not unusual in this case. You have two murders, and one of them you may have to do something to take care of--you have a grieving family--indicated it may be appropriate for a detective or officer to stay with him until a clergy person arrives. There may be other witnesses to be interviewed. There's a lot of potential things that could happen. So to have four detectives go to the home when it's O.J. Simpson and the police being especially circumspect to do everything because they know they're subjected to higher scrutiny than perhaps they had been and have been indeed throughout this case--and I'm not saying higher than should be, but higher than normal certainly. They were subjected to heightened scrutiny and went on and on and on, has gone on and on and on.

Here again, right at the end of the evidence in the case, we're arguing the same stuff again with regard to their actions. But their actions were proper. Certainly if only two detectives had gone and had been needed for emergency help, they would have been scrutinized for not having additional detectives available to handle it. So all of the actions and conduct of these detectives when they arrived there and reasons for going over the wall, all of them were pretty much circumspect. Detective Fuhrman would have been negligent in his duties as a police officer not to investigate the noises that Kato described on the wall, and he did what was appropriate in that situation. The officers--the detectives in this case acted appropriately throughout all of those circumstances and that timing. And if Detective Vannatter was tired and getting up in years, got time to write up the affidavit, he may have made some errors. And the court already found those. But I don't think the affidavit that he made when he was tired after being called up in the middle of the night--which the detectives were called in the middle of the night. The affidavit he had to get out quickly for purposes of a search warrant that day. I don't think you ought to consider his credibility in that line. I think you ought to look at the testimony yesterday and the testimony of Detective Vannatter of the eight days he was on the witness stand. The court had a lot of opportunity to observe him and listen to him and decide for yourself, if you find it necessary to decide, whether he was credible. And all of that was after the court had to rule on the search warrant affidavit. So certainly the search warrant affidavit is something they're not re-raising that in terms of the fourth amendment issues. So I don't think that's what the court should look to in terms of deciding that indeed this newly brought motion to suppress should be denied.

MR. UELMEN: Four brief points, your Honor. First, with respect to the timing of this motion, I don't think it can be seriously argued that this motion is not timely being made.

THE COURT: Counsel, don't waste any--

MR. UELMEN: Okay.

THE COURT: --time on that.

MR. UELMEN: Our concern was that the court not have to hear the testimony twice. It was obviously relevant for the jury to hear, and now we're asking that the same evidence be incorporated into the motion. Point two is, the testimony that we have asked the court to now consider as newly discovered evidence is the testimony of Detective Vannatter, the Fiato brothers and Special Agent Wachs. I did not mention Commander Bushey, and the reason I did not mention him is specifically because his evidence is not newly discovered. Commander Bushey was available to the People at the time the motion was heard before the magistrate. There is no basis for the People to offer Commander Bushey now as newly discovered evidence that was not previously available to the court. But in any event, we would remind the court that there was no testimony by either Detective Vannatter or Detective Fuhrman that they were responding to any order from Commander Bushey. In fact, Commander Bushey was never mentioned by either Detective Vannatter or Detective Fuhrman in the course of their testimony on the motion to suppress. So we would contend that even though he is not newly discovered, Commander Bushey is for any purpose of this motion irrelevant. The third point, the issue presented here is not the subjective belief of the officer versus the objective belief of the officer. The issue here is the credibility of the officer. The question here is whether we should believe these officers in terms of the circumstances that they have outlined as giving rise to their reasonable belief that they needed to make an immediate entry and that their purpose in making that entry was to look for victims or to make a notification as opposed to being engaged in a search either for a suspect or for evidence of a crime. And when you boil it all down, what we have here on this motion to suppress are two police officers, Detective Vannatter and Detective Fuhrman, and on the evidence now before the court, the court with the newly discovered evidence must make a new finding with respect to their credibility. This court is no longer bound by the finding with respect to the credibility of these officers that was made by the magistrate. And with the evidence that is now before your Honor, the evidence of the Fuhrman tapes in terms of Detective Fuhrman's approach to the investigation of criminal activity and his propensity to simply create a reasonable explanation after the events have taken place, the evidence of Detective Fuhrman's perjury and the testimony in this trial, the evidence with respect to Detective Vannatter's misrepresentations in the affidavit that this court found justified a conclusion of reckless disregard for the truth and now the impeachment, the direct impeachment of Detective Vannatter by three witnesses who testified that he indicated O.J. Simpson was a suspect from the beginning, this court is simply left with a record of two liars, and two liars cannot corroborate each other.

THE COURT: Thank you, counsel. All right. We'll take our midafternoon recess at the moment. I'll read the hull case and come back and give you my ruling.

MR. COCHRAN: May I say one thing before you take a break?

THE COURT: Yes.

MR. COCHRAN: Just a matter of calendaring, how we proceed after that. Will the court consider taking Mr. Scheck's and the People's request for judicial notice when we come back?

THE COURT: I'd like to resolve the Sims issue next.

MR. COCHRAN: That will involve Mr. Scheck also. Sims and then those two issues that involve him also. What I want to know is the status of the jury. You know, the question is whether the jury will be brought in tomorrow.

THE COURT: I'm sorry?

MR. COCHRAN: The question is whether the jury will be brought in tomorrow.

THE COURT: That is correct.

MR. COCHRAN: We need to do that.

THE COURT: Which is why I'd like to resolve that next.

MR. COCHRAN: Resolve those two? Thank you, your Honor.

THE COURT: All right.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. With regard to the renewal of the 1538.5, I think Mr. Uelmen is correct, that the court's evaluation is that of the witnesses who have testified in support of the motion at the preliminary hearing. And, therefore, the testimony offered by the Prosecution of Commander Bushey is not admissible at a renewed 1538.5. And so the record should reflect that in making these determinations, the court has not considered Commander Bushey's testimony since the Prosecution may only recall witnesses who testified in the original motion. Having said that, the court has evaluated the testimony of Agent Wachs, Craig and Lawrence Fiato and also evaluated the circumstances that--circumstances in the context that surround those discussions, and the court in noting the context, that is drinking beer in a hotel room and standing around smoking on the smoking deck on the 18th floor, strike the court as being relatively informal circumstances and the context leads the court to believe that the comments if, in fact, made by Vannatter--and I believe they were--I don't find significant weight can be placed upon them. In evaluating what impact that has on the credibility of Detective Vannatter for these purposes, I find that it does not have significance or overriding impact that would cause this court to reevaluate the original finding. The conduct outside of the Rockingham residence, when viewed objectively, does not indicate a search for the Defendant to arrest him or to otherwise invade his home. The officers stayed outside the residence for a considerable period of time. They attempted to get a response from the residence inside and were unable to do so. Rather than at that time breaking and entering, they sought assistance from the Westec alarm company. The Westec alarm company responded. The information that they gave to the officers raised the concerns even more, the indication being that there was no information that the Defendant was out of town or should have been out of town and that there should have been a housekeeper on the premises at the time that should have been in a position to respond to the knocking and the ringing of the police officers. The Prosecution is correct that the standards cited in hull by Justice Nicholson is the standard that is applied to cases subsequent to the imposition of proposition 8. So the court's previous ruling stands. All right. Let's move on to the Henry Lee notes and whether the Defense should be allowed to recall Mr. Sims. Mr. Scheck, do you want to address that issue?

MR. SCHECK: I would rest on the arguments. I think that--

THE COURT: I just wondered if you could--a word of interpretation on Dr. Lee's notes then. What I have before me--and this is Defense discovery pages 764 through 770 and on the--

MR. SCHECK: If you tell me which day.

THE COURT: This is April 2nd. And am I correct in assuming that O-Tolidine tests were done on the B sock and that results, positive results were noted inside--on the inner surface on the B sock?

MR. SCHECK: That it appears to me that in some areas, that's true. There are a number of areas on that sock. Yeah.

THE COURT: All right. Mr. Scheck, do you have any other explanations as to why the court should allow the recalling of Mr. Sims in light of--it appears that the Defense had possession of the sock at Mr. Taylor's facility in Altadena, which is, you know, a local community here, that the previous complaint was that at the LAPD, that Dr. Lee was not given a professional welcome and was not accorded appropriate equipment. But it appears that at Mr. Taylor's facility, Dr. Lee and Professor MacDonell had free access to the sock, were able to test it, examine it microscopically, to take photographs, to do testing. And is there a reason why we should go beyond at this point?

MR. SCHECK: I think I stated the reasons before. The court wants to hear them again?

THE COURT: Well, in light of what I see here, can you tell me--

MR. SCHECK: I don't think this makes any difference. I mean, assume--let's--there were earlier notations by Mr. Sims as to what he saw in November. He was the first person who saw the socks in their pristine form. Then in July, he and Dr. De Forest make additional examinations in light of what the Defense witnesses said about the A sock. They then come up with information that corroborates the fact that there's a wet transfer from surface 1, surface 2 and surface 3 on the B sock. Now, let's posit--and I don't think these notes are definitive of anything, but let's posit that our expert missed it and that our expert found it. It's exculpatory. It's exculpatory.

THE COURT: People. Forgive me for reasking, Mr. Scheck, you know, but I had a lot of other issues I had to contemplate. So when I ask to revisit an issue, I'm not--

MR. SCHECK: No, no, no. Your Honor, I was trying to be succinct.

THE COURT: Thank you. Miss Clark.

MS. CLARK: I don't think I understand Mr. Scheck's argument. But, first of all, the diagrams make it clear that Mr. Lee saw the--made the relevant observations back in April at Mark Taylor's laboratory. That's what the O-Tolidine tests are all about. That's why you have the diagrams and the number of pages devoted to sock B. I think it lists positive, negative, positive, negative showing the entire list of testing stains that he did. So they obviously knew about it back in April. Obviously, they chose for reasons they're most aware--perhaps they thought that the sock a stain was more probative and they could elicit better expert testimony about it. In calling--let me see if I can frame this. Tactically speaking, your Honor, what they do in calling only Gary Sims is attempt to put the issue in front--they have the testimony of Mr. MacDonell. Assume hypothetically, your Honor, that Mr. MacDonell looked at sock B and said, "I'm not going to be able to give you your planting theory on this one. It doesn't look right. There's a couple of yarns that indicated transfer. You can't say it's transferred from the surface 2. It could be a transfer as a result of Mr. Simpson's bloody finger, and I just can't give you what you want on that." So what they do is, they call Gary Sims to testify to the few yarns that seem to be--that give a positive result with the presumptive test. His observation of those couple of yarns--and leave it at that--linking the inference on Mr. MacDonell's previous testimony--and this way, they get all the inferences they want and all the implications they want without ever having to be shown up for the fact that he cannot link it up with Mr. MacDonell's testimony.

It will then be up to the People to set the record straight, no. 1, that the surface 3 stain cannot--or can't call it a stain. It's really so tiny--but what they see on surface 3 cannot necessarily be attributed to a transfer from surface 2. No. 2, if there were planting, you'd see far more than a handful of yarn transfers. No. 3, that it could easily have been transferred by a bloody finger or, no. 4, that it could have been the result of a phenolphthalein test or, no. 5, from the way the socks were laying, the toe folded up on the ankle in one photograph, I think it shows--

THE COURT: Let me ask you this, Ms. Clark. One of the things that concerned me--let me tell you two things that concern me. One--actually three things. One, these notes from Dr. De Forest were turned over relatively recently, at least the ones that were held back for 1054.7 purposes, which I then ordered disclosed, which was within the last week or 10 days. Secondly, Gary Sims was the Prosecution's witness who gave--testified to the wet transfer stains on sock a and did so I thought in a very concise way. Thirdly, during the course of our discussions when we had Mr. Sims back here, the Defense did ask for permission to retake him as a Defense witness to go into the areas that they wanted to go into at that time. I told them that I would likely allow that. Then you objected or I think it was Mr. Darden who actually had objected and indicated no, if they want to take him as his own witness, let them call him in their case. So I said so with that representation I'd hate to drag Mr. Sims back, but I did tell them I would allow Mr. Sims to be recalled. So I'm kind of in a situation because of objection, we've got to drag him back.

MS. CLARK: Well, your Honor, you know, I disagree. One thing we did not get to litigate--

THE COURT: I might add that I think tactically, they believe that Sims is a good believable witness before this jury.

MS. CLARK: I don't--fine. Tactically--

THE COURT: And for him to say that there's evidence of wet transfer, that's tactically great for them.

MS. CLARK: No. 1 thing, I do not recall him ever testifying there was evidence of a wet transfer on sock A. I remember him discussing the powder that he saw on surface 3, but I don't recall him saying it was a wet transfer.

THE COURT: Mr. Scheck--excuse me just a second. Mr. Scheck, do you have Dr. De Forest's notes, the ones where it does discuss the wet transfer?

MR. SCHECK: I don't think Miss Clark is disagreeing with Dr. Forest's notes saying wet transfer. I think what she's saying, previously Mr. Sims had offered testimony which allows her to argue that the stain on sock a is not a wet transfer, but is flaking from fibrils that arose from the cutting.

THE COURT: I got it.

MR. SCHECK: That's precisely why you are in trouble on sock B, because he says something differently.

MS. CLARK: Well, you know, I've talked to Mr. Sims. We're not in trouble--excuse me--but nevertheless, the problem that I have with the Defense posture of saying we can recall him on--in our case in chief is, the court did not give us an opportunity to be heard with respect to whether it was an appropriate thing to do. The court is aware this is an unusual posture to be in. But the court is aware that at the time we presented Gary Sims, we were in our rebuttal case. The Defense had rested their case subject to Whitehurst only. They sought no provision for Gary Sims or any other witness. And the People specifically requested the court that the conditional resting be not permitted to expand the Defense case out to the outer realms of the universe because they have not formally rested. Otherwise, we can go on for many--I mean, keep calling people, so can the People. We've got to end somewhere.

THE COURT: Let me see counsel without the court reporter, please.

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

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Is the matter submitted?

MR. SCHECK: Yes, your Honor.

THE COURT: All right. I will allow the reopening for Mr. Sims. I'll direct counsel to call Mr. Sims this evening or later this afternoon, reinterview him with regards to this one particular issue and make a tactical determination whether or not you still want to present that. All right. Okay. Exhibits, Mr. Douglas.

MR. COCHRAN: Your Honor, was the next thing to be that judicial motion of Mr. Scheck's?

THE COURT: Okay.

MR. SCHECK: That way I can go call Mr. Sims.

MS. LEWIS: I know we're not ready. I told the Defense we're not ready on exhibits this afternoon.

THE COURT: Mr. Douglas, how many exhibits are there?

MR. DOUGLAS: Your Honor, there are 130 or so of the People's exhibits that they have sought to introduce since we began our case on July the 10th and then there's a question of those exhibits that the Defense has offered since we last had that issue a few weeks ago.

THE COURT: So how many total do we have?

MR. DOUGLAS: Approximately 160.

THE COURT: All right. Miss Lewis, when are you going to be ready to--

MS. LEWIS: I'm not going to be arguing. I'll defer to Miss Clark as to when we are going to be able to argue exhibits.

THE COURT: I assume we are going to do this the same way, that we'll sit down informally, decide which ones we are going to fight about.

MS. CLARK: Right. We are going to be doing jury instructions tomorrow, right?

THE COURT: I was hoping to do it today. Looks like we're not going to make it.

MS. CLARK: During the course of jury instructions--we have people preparing on this right now. So I'd like maybe until the afternoon break.

THE COURT: There's a lot of you, only one of me.

MS. CLARK: On the exhibits?

THE COURT: Exhibits and instructions.

MS. CLARK: Right. I don't have a feeling for how long the jury instruction argument is going to be.

THE COURT: Well, you've got 42 special instructions offered. So--

MS. CLARK: Some--I think some are going to be more hard fought than others. It's really hard to gauge that. We can be prepared--we have to go through all of these exhibits. I think the ones that I have highlighted here are the ones that Mr. Douglas is objecting to.

MS. LEWIS: That was 42 from the Defense.

THE COURT: All right. I'll tell you what. Let's hear the motion for judicial notice, and then we'll launch in and see how far we get on the other matters.

MS. CLARK: We don't have the Defense objections to our exhibits and I think that we had almost completed the Defense exhibits the last time around, didn't we?

THE COURT: Just about.

MS. CLARK: How many remaining Defense exhibits have we not litigated? Do you know, Mr. Douglas?

THE COURT: I'll tell you what. Let's do the judicial notice issue now, and then we'll take a break, and I'll take you and Mr. Douglas back in chambers and we'll schedule this. All right.

MS. CLARK: We need the Defense objections to ours. They only have 30. Pretty easy to handle. We knew what they object to in our exhibit list before we--

THE COURT: Okay. We can do this informally. All right. Mr. Scheck--I'm sorry--Miss Lewis, you're the proponent of the request for judicial notice?

MS. LEWIS: Actually, Mr. Goldberg.

MR. GOLDBERG: Good afternoon.

THE COURT: I knew I'd get it right sooner or later. Good afternoon.

MR. GOLDBERG: We're asking for judicial notice, your Honor, in relationship to several questions in four areas that were propounded to Dr. Lee. I don't know whether the court had an opportunity to read our request for judicial notice.

THE COURT: Yes.

MR. GOLDBERG: It's actually fairly brief and succinct and I hope states our position rather clearly, but I'd just like to emphasize that, the key points for your Honor because I know that you've been covering a lot, as the court has previously pointed out, in the last few days.

There are four areas that we're complaining of. The gravamen of all of them is that in each one of these instances, there were a series of questions that were asked Dr. Lee that had the clear and unmistakable effect of conveying to the jury the overall impression that the Prosecution somehow unilaterally determines when and under what circumstances the Defense can have access to evidence as opposed to the court making those kinds of determinations or at least having a substantial role in making those determinations. And also, these questions were couched in language and the testimony was couched in language which elicited testimony to the effect that--that Dr. Lee was prohibited or denied access or wasn't allowed access to the evidence until certain dates. The first such instance, your Honor, is in relationship to the inspection of the socks. And the court will recall that there was fairly extensive testimony by Dr. Lee about how he felt he was treated at LAPD and the extent of the time that he had to look at the socks, only being 20 minutes I think he testified, even though in actuality, I think he had more, but he implied that it was only 20 minutes. In reality, the socks had returned from the Department of Justice on November the 22nd of 1994, and there was no application to this court to look at the socks between November 22nd and February the 16th. And clearly, Defense could have done it before February the 16th. I think it was the Defense that decided to do this the very last moment before it was sent to the Department of Justice. So this is a wrongful impression that has been created in front of the jury. The second item was that the Defense asked a number of questions about the Bronco that were couched in terms of asking Dr. Lee, "When were you first allowed to visit the Bronco," or, "When were you first permitted to look at the Bronco," and words of that kind. They used that sort of language on a number of occasions. On some of the occasions, we objected and objections were sustained. But this was one of those instances where we felt that the answers to the questions still left the impression that somehow it was the People that were not permitting Mr. Lee to look at the Bronco. And again, this is an area where the Defense never made any application for this court or complained to this court about Dr. Lee's access to the Bronco. The third area was in relationship to the inspection of the Bundy crime scene where Dr. Lee said that he was ordered by someone, I don't know who--we weren't able to confirm this one way or the other--that he could only be at the crime scene for 20 minutes. However, he never made any application to this court nor was any complaint ever lodged with this court. Actually what happened was, I believe prior to the time I came on the case, there was an informal agreement or maybe a formal agreement between the parties that the People would have reasonable access to the Rockingham location for certain inspections, that the Defense would also have reasonable access to Bundy. But the unmistakable impression was left before this jury that the only access the Defense had was this 20 minutes and they were ordered that they could only be there for 20 minutes and were prohibited doing the kind of testing that Dr. Lee would have liked to have done. And the fourth item that was testified to by Dr. Lee is that he stated that Mr. Shapiro had told him that the only photographs that they had received from the Los Angeles Police Department in terms of crime scene photographs were second or third generation photographs. As the court knows both from your experience as a Prosecutor and also as a Judge, we always provide in discovery original photographs from negatives, which was done in this case and is done in all cases. In fact, I don't even know if we have the capacity to routinely provide anything other than that in terms of a photo--shooting photographs and then providing second or third generation copies. So the jury has been left with the impression that we gave the Defense less than satisfactory evidence. That is clearly not true and we believe that that misimpression should be rectified. Therefore, we are asking that the court take judicial notice, as the People have requested in our application for judicial notice, as to these four items. What the court is being asked to do is take judicial notice of the law of the state of California in terms of discovery obligations and inform the jury that the People do not get to unilaterally make these kinds of decisions, that applications can be made in front of the court. That is mandatory under the code of evidence. And then we also ask the court to take judicial notice of the court's own files, that certain applications or orders were not sought for these four specific items of evidence, and that is permissive, that the court can take judicial notice of that under the California rules of evidence. So we would respectfully request that the court take judicial notice of these items in order to correct these misimpressions in front of the jury.

THE COURT: Thank you.

MR. SCHECK: Your Honor, this reminds me of that scene in one of my favorite legal movies, I think it's My Cousin Vinny, where the Defense lawyer gets up and says, "Everything that man just said"--and I'll just--after the Fiato brothers. So it's incorrect both on the facts and the law. I actually had to go up and look at all the page references here that they filed, and I'm concerned about Mr. Goldberg's page references. He says the Defense also implied the Defense was wrongly denied access to inspect the Bronco. Now, the questions were at the bottom of page 43022: "Dr. Lee, before I move on to the next series of boards, I'd like to ask you briefly some questions about the Bronco. "Did you have an opportunity to personally inspect, examine or look at the Bronco? "No. "Question: Could you do a reconstruction of the Bronco? "I cannot do a reconstruction because I do not have a direct examination, observation of the original condition."

That was perfectly clear. He was going to give very limited testimony just from photographs, and he explained when you can do reconstruction and when you can't and if you don't look at it, you can't do it. He was only explaining the limitations of his testimony. Now, with respect to the examination of the socks on February 16th, Mr. Goldberg is again in error with respect to the motions that went back and forth on access to this evidence. And I don't believe that he was yet active in this case. So he doesn't have the same recollection of this as I think you and I do. And that was that there was extensive and extraordinary litigation about access to the biological evidence in this case and when we could do testing and when we could do anything more than simply examining or looking at it, and even then, under what conditions and circumstances. And the fact of the matter was that the socks were under examination and Prosecution took the position that they weren't finished testing until Mr. Sims' report was out, and that was in January. Now, unbeknownst to us, if they had actually sent the socks back at some point to the LAPD unbeknownst to us, it wasn't clear to us that they had finished testing because they were sending them back and moving them back and forth and they hadn't completed, finished their DNA testing. And as the court distinctly recalls, when we finally, after weeks of negotiation, had reached a plan to send physical evidence to Albany--and Dr. Lee's testimony was completely accurate as to what the terms and conditions of those orders--that order was in terms of being able to look at it and examine it. When we had done that, this whole issue of EDTA testing arose. That is that the Prosecution said, "We want to do EDTA testing on certain designated items of evidence; in particular, the socks." And, of course, the socks were the items of evidence that we wanted an opportunity to examine firsthand and do testing on the most. And in your chambers with Mr. Yochelson and Mr. Hodgman present, I turned to the court and said, "Well, if we get Dr. Lee down here from that conference in Seattle, can we have an opportunity to look at the socks?" And what followed is 100 percent accurate in terms of Dr. Lee's testimony as to what the terms were, that a courier was flying out--

THE COURT: They were about to be packaged up, sent out.

MR. SCHECK: We sat there waiting. And you can bring Mr. Hodgman and Mr. Yochelson down here, and they'll tell you that every syllable that Dr. Lee uttered about what those facts and circumstances were were true. And as far as what went on in the evidence processing room, I was a witness and I know what I saw. Now, Dr. Lee testified to what happened there and those are the circumstances that they put together in terms of his inspection of the evidence. Those are the boards that Mr. Harmon chose to put in. That was the testimony they chose to elicit from Mr. Yamauchi. Dr. Lee expressed himself clearly about what he thought of it. They've got to live with it. They did it. As far as access to the crime scene is concerned, Mr. Goldberg indicates that he is in no position to give a factual refutation as to what the terms and conditions were of Dr. Lee's inspection of the Bundy crime scene. The record is very clear that Mr. Shapiro had sent letters to the police department and had made requests to the Prosecution and the people at the crime lab for Dr. Lee and Dr. Baden to have access to the evidence as they were testing it. Miss Kestler made very clear that that would not be permitted, that it was not their policy, they were going to get to--deal with it when they wanted to, how they wanted to and we've had a lot of litigation about access to the evidence. And those were the terms and conditions. He wanted to get the crime scene as soon as possible. Their argument in closing is going to be that some of the observations he made there that day should be ignored by the jury because some other unknown people might have left imprints on the walkway. And we have to live with that, but our access to that crime scene was limited and they have to live with what they did with it. Those are the accounts. He has said nothing here that in any way contradicts the facts as Dr. Lee stated them. Then there was the whole issue of the photographs. I actually looked every one of these quotes up, and at 42895, all Dr. Lee has said--these are three pictures given by attorney Shapiro. At 43241 to 43242, it's Mr. Goldberg as I understand who asks if the picture on our board is a photo of a photo, and it was made clear that we had small original photos given to them and then we blew them up as photos of a photo. That's all that's there. He asked that question. The--then there is testimony on 43276 to 43277 where Mr. Goldberg shows the new and much better pictures that Agent Bodziak testified were prepared in August for purposes of confronting Dr. Lee on the witness stand, and Dr. Lee said: "Don't have picture as good as this." And then he indicated that even this picture, which was an overall picture of the walkway, was taken at an angle and it was selective in that it was focused on Bruno Magli prints and not any other prints, and that's what he said. Then he was asked something to the effect of, "Well, didn't you ask for better quality prints?" And he said:

"I asked Mr. Shapiro. He said that's all he had." Now, that raises one issue which I think frankly is the genesis for this whole motion which I'll get on to in a second has no basis in law whatsoever. But I'm even concerned about the facts here. And that is, there's a significant motion pending before this court with respect to the contact sheets. Because I'm sure the court's recollection of this is pretty clear. And that is, we are asking for these contact sheets from day one and they're going to have to listen in closing argument to the testimony of Mr. Rokahr and what we were finally able to do when we got those contact sheets. Now, the record is indeed somewhat ambiguous. Mr. Hodgman can't recall whether or not we asked him for negatives. The court's recollection may govern on this because I think some of these requests were actually made in your presence. It's Mr. Neufeld's recollection and my recollection we did ask for negatives as well as contact sheets. But the point was, they were in the exclusive control of the Prosecution. And nobody disputes that we asked for contact sheets all the way through and didn't get them. And the contact sheets reveal an extremely important fact about when that picture was taken of mark Fuhrman pointing to the glove, a very important fact in this case.

MS. LEWIS: Your Honor, I'm sorry. We seem to be on to a different motion here. We're all shaking our heads here.

MR. SCHECK: No. The point is, that motion is pending and I'm saying it as directly as I can. This motion is frivolous and it's done because the court has put that under submission, is going to give that contact sheet motion serious thought. And factually, none of these things even state what they say. He never talked about wrongful denial. He just stated the facts as they were. The citations they make here don't support their position. Now, as for their legal position, their legal position is bereft of one case citation, and that's for a very good reason, because it is a complete misunderstanding of what one can do with respect to judicial notice. They are not asking for judicial notice of the statutes or some public record or fact or anything that's laid out in 451. What they're actually asking for is that judicial notice be taken that if the Defense filed a motion or if the Defense--of the fact that if the Defense filed a motion for certain kinds of relief, then the court would have granted it. That's essentially what they're asking for in each of their requests, and it's inappropriate unless--it's inappropriate period. And what it would really require is for the court to take judicial notice and summarize every single discovery request that was first given to the Prosecution and rejected and all the different motions that went into the litigation of access to the evidence in this case, which was fiercely litigated, including the court's decision that they could continue testing all the way through the case and withhold access to certain evidence. I've tried to look back at that file, and it's numbing and it seems to me wholly inappropriate for this kind of judicial notice to be taken for which there is no citation whatsoever that one can take judicial notice about court orders that were not requested, not note the ones that are relevant, on point, that did make requests, including informal requests to them, as were directed to do by the discovery sections, and it is totally not called for in light of the testimony that they cite here. So this application is wholly without merit on the facts and the law and I submit to the court it's really just a "Make way" because they're worried about something else that the court still has under submission.

MR. GOLDBERG: Thank you, your Honor. Well, that's the first time I think I've heard My Cousin Vinny cited as a legal authority in a court of law. What perhaps counsel doesn't know, I believe that citation was overruled in the more recent movie of, a few good men. Your Honor, what we have is a situation here where counsel through his clever phraseology and asking of questions--I don't think it's Dr. Lee's fault--creates certain impressions in front of a jury which are obvious to anyone who is listening to what is going on, obvious to this jury which are untrue. And the issue is, does the Prosecution get an opportunity to show that it's untrue. Yes, we can, and we can do that by offering evidence, and we could have offered evidence or we can do that in other ways that are permissible under the California evidence code. That is judicial notice. And when the court is either required to take judicial notice or may take judicial notice, that is an appropriate avenue to take to counter evidence that was offered and impressions that were created in front of this jury. I've already tried to state the factual basis for the record and perhaps would invite the court to look at this again because it's not just a question of reading the literal language and the very careful phraseology that Mr. Scheck used, but a question of the court evaluating the overall impression that it created and whether wrongfully created an impression that should be remedied and that should be set straight if the People are entitled to set it straight. Just very briefly, your Honor, just to give the court an idea of this overall statement that I'm making that in general, misleading information was put before the jury, on 42900, Mr. Scheck asks: "All right. Now, Dr. Lee, you mentioned before that arrangements were made so that the Defense experts for the first time could actually examine items of evidence in this case at Albany Medical Center on February 17th and 18th and 19th, correct?" It's not really a complete sentence or thought, but what is clearly stated here is that the first time that they could actually examine items of evidence was on February the 17th, 18th and 19th, that they didn't have any ability and weren't allowed to examine evidence before then. Similarly, on the very next page, 42901, Mr. Scheck asks: "Were you able to, you or other Defense experts, to your knowledge, were you given an opportunity to actually examine physical evidence by touching it, microscopic examination, prior to the shipment of that evidence to Albany on February the 17th, 1995?" And he said, "Yes." So again, it's making it sound like we did not give them the opportunity. Well, they didn't ask. They didn't make an order, an application for this court. When the socks had been returned on November 22nd, I believe Mr. Harmon sent a letter to say that the socks are back. Between November the 22nd and February the 17th, they could have asked to see the socks, and they didn't. But they have been led to believe, the jurors, that we did not allow them to--unilaterally said, no, you can't see these, the court didn't have anything to do with it. We just said, you can't see them and they didn't get a chance to see them before February the 17th. It's a misimpression.

On 43030, in relationship to the Bronco, Mr. Scheck asks the following question on line 7: "Couldn't get to see the Bronco itself? "Answer: No." Then on line 15: "By Mr. Scheck: You did not see the Bronco itself? "No, I did not." Well, what does couldn't get to see the Bronco mean? On 43022, he's asked the question: "By Mr. SCHECK: Dr. Lee, before I move on to the next series of boards, I'd like to ask you briefly some questions about the Bronco. Did you have an opportunity to personally examine and look at the Bronco? "Answer: No." So clearly, again, the unmistakable impression is being conveyed to the jury that somehow we did not give him the opportunity and he was denied access to the Bronco-- I'm sorry. Mr. Cochran, are you finished?

MR. COCHRAN: I was talking to my client.

MR. GOLDBERG: I know. But it's a privileged conversation with your client and I could hear what you are saying. Thank you. Then in relationship to the photos, on 43276, he's asked the following series of questions by me: "Doctor, did you ever ask the Defense to provide you with higher quality pictures? "Answer: I get the information. That's all the picture we get. It's total out of sequence, mixed up like a deck of card. I spend lot of time trying to make some sense out. "Question: But when you got it from Mr. Shapiro, did you say, `please send me some examination quality photos'?

"Answer: I did ask it. He said that's all he get. He took it back right away. I don't have the photograph." Now, Mr. Scheck, when he read this exact quote, he said that Mr. Shapiro said, "That's all he has." He didn't say, "That's all he has." He said, "That's all he get." Well, who did he get it from? The People. So again, what is clearly being stated is that all we gave him were photographs that were not examination quality. You know, I don't know why the Defense does this. I don't know why they create misimpressions that are very easy to rectify, that are very easy to set straight either through evidence or through the provisions that are allowed by the California evidence code and then complain when we try to do it. But Mr. Scheck did this. The questions are obviously very, very carefully worded and carefully phrased, but I think now we should have the opportunity to set the record straight. And under California law, judicial notice is an appropriate way of doing it. We are simply asking the court to take judicial notice of what the law is. It's a correct statement of law and the court can decide when access can be granted or denied to evidence, and we are asking the court to take judicial notice of its own finding that such applications were not made and we would ask the court to do so.

THE COURT: All right. Thank you, counsel. All right. Under ordinary circumstances, the request for a court to take judicial notice of certain facts, statutes, one of the basic requirements is that, A, either there be no reasonable dispute as to the fact or circumstance that the court is asked to take notice of or that the facts are easily susceptible of determination. These discovery issues were hotly contested throughout this case and there remains controversy today. There's nothing we agree upon here between the sides. These are matters that could have or should have been resolved during the course of the examination of the witness in question. The request for judicial notice is denied. All right. Scheduling of exhibits.

MS. LEWIS: Could I mention this, apparently an additional litigation that needs to happen? The court recalls the Gretchen Stockdale issue where we served her with a subpoena. She said she gave them to the Defense. We tried to get them from another source, and I believe the court was carbon copied a declaration indicating the original source erased them in the normal course of business. And apparently thereafter, we asked the Defense for them and apparently they--well, the note I have indicates Defense destroyed them.

THE COURT: Let me ask you this. Do we anticipate litigating this? Because the indication I got from Miss Clark is that both sides, subject to a final decision as to Mr. Sims, were going to rest. So there's no point in going into Gretchen Stockdale unless somebody is going to call her as a witness.

MS. LEWIS: This notice has just been sent down from Miss Clark.

MR. COCHRAN: That was my understanding. Further, Mr. Shapiro was the one who's handling that. He's not here.

MS. LEWIS: May I just indicate, still on the plate--since they are going to call Gary Sims, the court allowing it, we haven't yet decided not to litigate this. That's the note I just got from Miss Clark. Apparently she wants to litigate it.

MR. COCHRAN: The problem is--I don't want to litigate this now, but there has to be a reason. She just can't walk in and call Gretchen Stockdale. There has to be a reason to rebut something. That's what the law requires. They don't have that. They said they have rested. The Gary Sims' issue came up before. I would ask you to take it up tomorrow when Mr. Shapiro is here, your Honor, if we are going to deal with it at all.

THE COURT: Yes. Mr. Shapiro was the one who was handling that aspect of it. Okay. What we have left then is the motion for an instruction regarding the contact sheets, the instructions in general and exhibits.

MS. LEWIS: I think Mr. Hodgman is most familiar with the contact sheets. Is that something that has yet to be argued?

THE COURT: No. That's under submission at this point. But that was a request for an instruction. So that's part of our instruction discussion. Who is going to handle the instructions discussions?

MR. GOLDBERG: Instruction--

MS. LEWIS: Jury instructions for the case?

THE COURT: Yes.

MS. LEWIS: I believe we anticipate handling that tomorrow. I may be mistaken, but I believe Mr. Kelberg is going to handle that for our side. He teaches I think--

THE COURT: Okay. Are there any of the exhibit matters we can resolve this afternoon?

MR. DOUGLAS: If the court pleases--

THE COURT: Mr. Douglas.

MR. DOUGLAS: --I have the majority. Although Mr. Scheck and Mr. Neufeld have not yet given me their lists, but we can begin perhaps with my identifying those exhibits to which there are objections and start the process in that manner.

THE COURT: Why don't we do this then. At this point, I would suggest then that--

MS. LEWIS: Miss Clark designated me in her place.

THE COURT: I was going to say, why don't we just take a recess and go over--we'll have Mrs. Robertson gather up the exhibits that have been introduced after a certain date. We'll just take them one at a time, and then we'll litigate, after we pare it down, the ones we have to fight over, then take care of those.

MS. LEWIS: Three additional motions pending that Mr.--

MR. GOLDBERG: Your Honor, that's the Henry Lee notes, discovery violation motion. The court had ruled there was a discovery violation, and the late disclosure of certain notes related to Dr. Lee that the court had not imposed any sanction, asked the People to file a statement of what the prejudice was, which we did on September the 11th of `95. I don't know whether the court had an opportunity to read that.

THE COURT: I have to admit that's something that had slipped my mind for a while lately.

MS. LEWIS: You know, Mr. Goldberg spent a considerable time and effort in detailing and indicating prejudice we suffered for the court's instruction.

THE COURT: We will take that up during the course of our instructions then.

MR. COCHRAN: One aside. One thing I was going to say--I was just talking to Mr. Scheck about it. Some of us may take our leave, but if in the event--how long does the court expect to be here? In the event that Mr. Scheck speaks with Gary Sims and there's some resolution one way or the other, we would like to let you know this afternoon. It might have--

THE COURT: I will be in the courthouse at least until 5:30. And as you know, Mrs. Robertson can always get in touch with me.

MR. COCHRAN: We may try to let you know something by that time.

THE COURT: I would appreciate that.

MR. COCHRAN: If that's appropriate, your Honor.

THE COURT: What we'll do is, we'll stand in--let me ask you this. Miss Lewis, do you know when Mr. Kelberg would be available?

MS. LEWIS: In the--

THE COURT: How early tomorrow morning would he be available? Dean Uelmen, are you available as early as 8:00?

MS. LEWIS: Mr. Kelberg gets up beyond my wildest dreams, ungodly hours of the morning. That's his normal schedule. Your Honor, I do need to make a phone call to Mr. Hodgman and make sure I was the designated--

MR. COCHRAN: I don't think it's Kelberg. When he left this time, he said he wasn't coming back again.

THE COURT: Mr. Uelmen, are you available at 8:00?

MR. UELMEN: I'm available at the court's convenience.

THE COURT: All right. Why don't you check and see if Mr. Kelberg is available. We'll start our informal jury instruction conference then at 8:00 tomorrow morning. I would like to get this done tomorrow because I would like to instruct Friday. All right. We'll take a recess. I'll have Mrs. Robertson summon up the items and then we will have an informal conference on the exhibits. Anything else? I'm always afraid to ask that question. All right. We'll be in recess. Thank you, counsel.

(At 4:20 P.M., an adjournment was taken until, Thursday, September 21, 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 Wednesday, September 20, 1995 volume 227

Pages 46718 through 46922, inclusive

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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

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I N D E X

Index for volume 227 pages 46718 - 46922

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Day date session page vol.

Wednesday September 20, 1995 A.m. 46718 227 P.m. 46818 227

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PROCEEDINGS

Motion re use of video during argument 46819 227

Motion re limitation of arguments 46838 227

Motion re renewal of 1538.5 46856 227

Motion re Defense request to recall 46886 227 Gary Sims

Motion re judicial notice 46897 227

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S (Rebuttal) witnesses direct cross redirect recross vol.

Bushey, Keith 46736mc 46753c 46786mc 46796c 227 D. (Further) 46799mc 46800c

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Bushey, Keith 46736mc 46753c 46786mc 46796c 227 D. (Further) 46799mc 46800c

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EXHIBITS

Defense for in exhibit identification evidence page vol. Page vol.

1382 - Syringe 46802 227