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. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier. The people are represented by Mr. Darden and Miss Clark. The jury is not present. The record should reflect that this morning I had a chambers conference with counsel to discuss a questionnaire that will go to the jurors this afternoon inquiring of them if they are desirous of extending the hours of deliberation into a later session during the evening hours and whether or not they are desirous or willing to deliberate on Saturdays, with the understanding that any deliberations must be conducted here at the courthouse and in the jury deliberation room. We also discussed--and excuse me. Counsel had no objection to the questionnaire proposed by the court. Also, the record should reflect that the court has directed counsel to be available on a one-hour's call for the purposes of responding to questions by the jury and also requests for read back. And the court has indicated also that a longer time period to be available for the purposes of rendering a verdict will probably be in place, but we will discuss that when the time comes. All right. Anything else we need to discuss before--put on the record before we conclude with Mr. Darden's argument?

MR. NEUFELD: Your honor, may I just go around?

THE COURT: Sure. All right. Deputy Trower.

MR. SCHECK: Your honor.

THE COURT: Mr. Scheck, good morning.

MR. SCHECK: Good morning. I just wanted to register for the record certain objections, one in particular to Miss Clark's argument, and get some determination from the court on this issue. At one point in her argument she began making references to the defendant's not performing tests on evidence and started making comments about experts for the defense who never appeared in court or testified and what they did or didn't do. In particular, the comment that concerned me the most was in reference to EDTA testing. It is one thing to say that dr. Rieders didn't perform a test using the ms/ms machine, because that certainly came out and was impeachment in the testimony, but what concerned me was a reference, well, the defense had other experts and they didn't come in and give you test results, or anything to that effect, and that seems to me improper, because, first of all, it is commenting on a privileged area, I think that is 913. And secondly, I think we've already had some litigation on this issue where the court actually made a finding that the conduct of the prosecution in terms of trying to find out what, if anything, defense experts were doing in this area was, in the court's words reprehensible, so it seems to me that a comment on what other experts could have done with respect to their testing or did do or anything like that would be improper, although I have no objection to her making comments about dr. Rieders. I thought that--and I would like some kind of guidance from the court on that issue.

THE COURT: Miss Clark.

MS. CLARK: I don't know what to say, judge. I pointed out to the jury what is in the record. I pointed out the truth. And I think I was very specific about the people they called and they didn't call. What I pointed out in--to the best of my recollection, is that they called dr. Rieders to testify about someone else's tests. He performed none. He could have. I talked about dr. Gerdes and I talked about dr. Lee and I talked about dr. Blake. This is all in the record. I don't recall--I did not refer to other experts that were unnamed or that did not come into the record. I talked about the ones that were in the record, and that is why they didn't perform any tests. So I don't know what the complaint is.

THE COURT: All right. Mr. Scheck, do you want to--I mean, are there any case citations? Because primarily during the course of argument the prosecution counsel are entitled to comment upon the state of the evidence and the failure to call logical and material witnesses, and that is people versus miller, 50 cal.3D, 954, the court's comments at 996.

MR. SCHECK: No, no. It sounds like from her comments I heard something different, and if Miss Clark doesn't believe she said that or certainly isn't going to make that argument on rebuttal, then I guess we don't have a quarrel.

THE COURT: Okay.

MR. SCHECK: It seems to me, though, just to make the point very, very clear, it is one thing to comment on dr. Rieders on what tests he did or did not perform under the circumstances. I distinctly heard her say the defense has other experts that could have done that test and that I think is beyond the miller case and beyond proper comment on the record. And it appears that Miss Clark agrees.

THE COURT: Something based in the record, correct.

MR. SCHECK: Right, so it appears as though there is no disagreement here, but I am very concerned because--

THE COURT: All right. Let's do this: Let's have our computer maven, Mr. Blasier, see if he can find the appropriate comment and at the next recess we will take it up, if you feel it is something that is appropriate.

MS. CLARK: Your honor, I will tell you what--

THE COURT: No, no. We have just settled it.

MS. CLARK: No, because in case--I don't know--we can't all remember what we say over the period of hours, but I will say this: Any reference to other experts would have been they could have brought someone in, not they had someone available.

THE COURT: Miss Clark.

MS. CLARK: Assuming that is the case--don't do it? Wait?

THE COURT: The discussion is over.

MS. CLARK: All right.

THE COURT: All right. Thank you. 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. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: And Mr. Darden, are you prepared to continue on with your argument, sir?

MR. DARDEN: Yes, I am, your honor. Thank you. Good morning, sir.

THE COURT: All right.

CLOSING ARGUMENT (RESUMED) BY MR. DARDEN

MR. DARDEN: Good morning, ladies and gentlemen.

THE JURY: Good morning.

MR. DARDEN: I hope everybody--I'm sorry. Mr. Fairtlough, would you just briefly show that to counsel, if you can. I hope everybody had a good sleep last night. It was a long day yesterday, and I thank you. Let me thank you in advance for hearing me again this morning. I don't expect to take up the entire morning. In fact, with any luck, I won't take up more than half of it, but we will have to see. Well, you will recall where we left off yesterday. I was telling you about this defendant's relationship, this man's relationship with Nicole Brown, and I told you that it was a simmering relationship. You know, it was--it was a slow burn. It was a slow burn. And I described for you and discussed with you some of the testimony that you heard in this case, testimony you heard from witnesses about their relationship, and we talked about the 1985 incident involving the baseball bat and the Mercedes Benz. We talked about the--the 1989 incident and the fact that the police had been there eight times before. Both the defendant here and Nicole Brown both--both admitted that, so I guess it is true, right? We talked about the incident at the red onion when the defendant grabbed Nicole by the crotch in front of a bar full of strangers and humiliated her. We talked about that. We talked about his admission to Shipp about his jealousy after the 1985 incident. We never talked about the testimony we heard from Denise Brown. You remember the testimony from Denise Brown when she talked about some of the--the really, really nasty things he would say to Nicole? As you may recall, Denise, Denise Brown, Nicole's sister, testified that during the time that she was pregnant the defendant would call her names. Do you recall that testimony? He would caller a fat pig and he would call her a fat pig in front of other people. I don't know what you should--you should extract from that. I mean, have you ever heard of such a thing? I don't know. I would suggest, however, that that is some indication of how he really felt about her. You know, sometimes you get in a relationship, people get in a relationship, and you have one--one half of the relationship who is dominant and you have another half who is somewhat passive, and the dominant half dominates the other half and what--what effect do you spouse this would have on Nicole, that is, being called a fat pig by her husband while she is pregnant? What affect would that have on herself esteem. Because you are probably wondering, well, hey, if he did all of these things to her, if he said all of these things to her, why did she stay? Well, there is old song and the words used to go that--oh, I think it was the dramatics, I can't really recall, but there was a couple of lines in the song where they said the strong give up and move on and the weak give up and stay. You know, if you badger a person long enough, if you beat them down long enough, if you wear them down long enough, pretty soon you strip them of their dignity their self esteem, and they are weak and they are submissive and they can't go; they can't stay. You know how that is. Everybody knows how that is. We've all been in bad relationships before. You have friend, you see them in these bad relationships. Why? Why do they say? Why do they stay? Usually they feel they don't have a choice. They don't know that they have a choice. They forgot that they had a choice. And in their minds they have no choice. She is a fat pig. But we talked about that yesterday and we talked about justice and we talked about what the real issue in this case was about and I pointed the defendant out to you and I told you he killed her and you've heard the evidence in this case. He killed Ron Goldman. O.J. Simpson is a murderer. That is what the evidence indicates. That is what the evidence indicates. That is what the evidence shows. It shows that he is not just a murderer, but he is a double murderer, and that is unfortunate. It is unfortunate that I have to stand here and tell you this because I would rather be somewhere else. I'm sure would you rather be somewhere else. Who wants to really have to confront and deal with these issues? But we have to because we have a duty. Marcia and I have a duty and you have a duty as well. Your duty is to look at all the evidence, to be fair, be conscientious, be objective. And your duty is to look at all the evidence, the totality of the circumstances, everything.

We don't want you to just look at one piece. Don't just look at the prosecution's case. Look at the entire case. Look at everything. Because when you do, when you do, what can you say except he did it and we have proven it and we have proven it beyond a reasonable doubt. And we talked about the safe-deposit box yesterday and we talked about the fact that Nicole knew that she was going to die and we know that she knew that because she told the police that in 1989 and we know that she knew that because of what she saved for us, the roadmap she left for you in that safe-deposit box; the letters, the photographs, the will. You recall that testimony. And as we went through the progression here, through the history of his abuse of Nicole--and by the way, not every incident here on this chart is an incident necessarily of abuse, but we wanted to lay out the history of their relationship as well, and so that is why you see things like divorce and et cetera, so we are not trying to mislead you. But we thought it was important that you know how the relationship developed over the years. And this is an unusual relationship, you have to agree. There is something wrong here. Henry lee said there was something wrong. There is something very wrong here. This is a slow burning, simmering relationship, and it is just like I told you yesterday, the fuse is burning. The fuse is burning, folks, and it is getting shorter and it is getting shorter and it is just getting shorter. But this morning, you know, I want to take things a step further, if I may, if you will allow me to. Let's just cut right to the chase. Imagine the defendant in his bronco. He is full of anger and he is full of rage and it is nighttime and he is driving that bronco and he is full of jealousy and the fuse continues to burn and the focus of his anger is Nicole. For some reason in his mind she has done something that he can't ignore, something that has set him off. He is jealous, he is raging, he is raging, he is out of control. And he is in that bronco and he is driving as fast as he can toward Nicole's house and it is about ten o'clock. He is out of control, folks, he is completely out of control. And when he gets to Nicole's place he quickly parks the bronco and he gets out. It is ten o'clock. He is in his bronco. He is at Nicole's house. It is nighttime. But we are not even talking about June 12th. We are not talking about June 12th, 1994. We are talking about October 25th, 1993. All along I have asked you to be open-minded, to be open-minded about this man and who he is, and we have suggested to you, and I think we have proven to you, that he is not the person that you see on those TV commercials and at half-time in those football games. That is his public persona. We all have one. We all have one. We behave a certain way when we are in public and we behave another way when we are at home. You know what they say. Nobody knows what goes on behind closed doors. And the fact that you--we may see you and you may see us doesn't really mean that you know us or that you know me or you know Miss Clark or Mr. Cochran. You see us here in public. But what are we? What are we really? What are we really inside? What are we really at home? Well, we have a very, very nice example. Well, "Nice" is a bad choice of words. We have a very, very important example of who this man is, of who he is at home, of who he is in his private life. It is the private side, the other side of him. And I want you to listen to a tape, a tape of an emergency call, and you recall that I played that tape a long time ago, months ago, and you probably forgot about it up until yesterday, I hope, but I'm going to ask you to listen to that tape in just a moment. Now, you know some people say, well, how could--how could O.J. Simpson actually kill this woman and Ron Goldman when her kids are in the house? You know what I mean? They say, well, who would do something like that? Well, he would. Keep this in mind, if you will, if you think it is important. In 1989 when he beat her you will recall that when the police came and wanted to take her to Parker Center to have photographs of her injuries taken, you will remember that she said, "I don't want to go. I just want my kids. Just take me back home. Take me back home to my kids. My kids are at home. I want to be with my kids." The night he beat her his kids were in the house. And when you listen to this tape from October 25, 1993, after the first couple of minutes you will hear the defendant in the background yelling and screaming and raging. You will hear that rage and you will hear Nicole on the telephone say, "The kids are upstairs." The fact that the kids are in the house means nothing to this man. Mr. Fairtlough, Mr. Wooden.

THE COURT: Which exhibit is this, Mr. Darden?

MR. DARDEN: Which exhibit is this, Mr. Fairtlough?

MR. FAIRTLOUGH: 21.

THE COURT: Thank you.

(At 9:35 A.M., people's exhibit 21, a videotape, was played.)

(At 9:44 A.M. the playing of the tape concluded.)

MR. DARDEN: I think we have heard enough of that. You will have this tape in the jury room. I am just a messenger and I think you get the message and you get the message straight out of his mouth. You hear this man in the background raging. He is raging about a picture, a picture of a man he saw at Nicole's house, a picture of a man she had apparently dated how many months before? How many months did Nicole say? About 18 months or something like that. It is on the tape. And Nicole said on that tape as well that "It always comes up." This man, that issue always comes up. Apparently this man and that issue is of great concern to the defendant, of so much concern that he apparently just can't get it out of his system, he can't put it behind him, he can't forget it. He can't forget it. And you hear him back there yelling and screaming at Nicole. You hear the language and you hear the things that he is saying about her and you hear him in the background saying, "I don't give a shit any more." That is what he said, a old relationship, a past boyfriend, a boyfriend she apparently had at a time after she moved away from his home and after she filed for divorce. A year and a half and he still hadn't gotten over it. And it is October 25 of 1993, and Nicole doesn't know it at the time, she knows he is going to kill her at some point, but she doesn't know at the time that she only has eight months to live. Now, we offer this tape to you, as I said before, so that you would know who you are dealing with and because you have a right to see him, the private side of him. When you listen to that 911 call, as you take it back into the jury room, listen to the part where she tries to calm him, where she is on the phone and it sounds as though he is getting closer to you because you can hear his voice more clearly and his voice is raised even higher than before. And as she tries to calm him, she tries to calm him by using a calm voice of her own. You get what I'm saying? I mean she says, "O.J., O.J." About three minutes before she was in tears on the phone calling the 911 operator, but he comes near, he is enraged, she is trying to calm him down with a calm voice. What does that mean? Is that helpful to you at all? Let me suggest to you that what that means is that she has been there before. She apparently feels as if she has a way, some tack, some approach that might help calm him down. It is Nicole's approach to her problem when the defendant becomes enraged, a calm voice, and she is scared and you know she is scared. You can hear the fear, you can hear the terror in her voice when she calls the 911 operator, but he gets close and she gets to the point where she has to calm him down. She is the calm one. She is the one who is in jeopardy, but she is the one with the calm voice. 1993 was the same year that the defendant talked to Kato Kaelin. Remember Kato Kaelin was living at Gretna Green with Nicole. He was living in the back in the guest house. And he talked to Kato just before Nicole moved to Bundy. You remember that conversation? You recall that testimony?

This is an example of this man's control, of the control he had over Nicole, the control he exercised over her. Kato was living with her. Kato is going to be paying rent to her, to Nicole. This is money, this is income, okay? She is divorced from this man. She is not his wife. She is not his wife. She has not been his wife since 1992, okay? Kato lives there. She has no relationship, no intimate relationship with Kato. She has a right to have him live there in the guest house if she wants, and as she moves to Bundy, if she wants Kato to rent a room, she has that right. This is 1993. He has no right to interfere with that, but he wants to exercise control over her. This is about control. He is about control. This is all about control, ladies and gentlemen. It is all about control; the beating, the humiliation, all of that. That is how you control people. You beat them down, they lose their self esteem, you humiliate them and pretty soon they are like puppies. He talked to Kato and he said to Kato that it wouldn't e a good idea if he moved to Bundy, it wouldn't be right. You remember? Well, you know, you meet people and you get involved in relationships and he continued his relationship with Nicole and you have to take people at face value and take it how it comes to you, you know what I'm saying? If he wanted to be with Nicole, then he should would be Nicole the way she is, and if the way she is is that she needs a tenant to pay rent to make it or whatever, that is her thing. He should just accept that, but he doesn't. He talks to Kato and what does he do? He bribes him. He bribes him away from her. Kato was going to pay 450 to $500.00 a month rent at a Bundy. He bribes Kato and how does he do that? Kato, come live with me at Rockingham. We got the Jacuzzi, the estate, the tennis court. You got your own room. And what is it going to cost you? What is it going to cost Kato? Nothing, zero, zilch, scratch. It is free. He has bribed Kato away from her. And she is upset about it. You heard the testimony. Nicole talked to Kato and she begged him not to do as the defendant asked. She told Kato that he was being manipulated. This is control. But Kato told you from the witness stand that the deal was too sweet. It was a freebie, free stuff, free rent and board, free room and board. How could he turn it down? He turned his back on Nicole and Nicole was angry about that. Nicole named her dog Kato. Think about that. Nicole named her dog Kato.

I'm not suggesting to you that--that this man was angry and depressed and consumed with jealousy each and every moment of the day or each day that he was with Nicole. I'm not saying that. I'm sure that there were periods of calm. I'm sure that there were periods when they had a good time. I'm sure there were times and periods when things worked out great for both of them. But always beneath the surface looms this jealousy and this anger and this passion and that rage, the rage you just heard on that tape. And you know, if you are in Nicole's position and you know all about this and you know that, hey, there are certain things that can set him off, that can set that fuse to burning, that can make that fuse shorter and shorter, then you are going to tread lightly, right? You are going to try and do everything you can not to upset him. And that is control. They went back and forth in their relationship. They make up, then they would breakup. They would try to get together. They had kids. That sound natural, right? I mean, you know, there is nothing wrong with that, per se. And as I understand the testimony, as I recall, that they were together again in the spring of 1994.

Despite all of that, despite everything that had happened, that happened up until this point, 1994, she moves in January to Bundy and in the spring she begins dating the Defendant again. And Kato Kaelin told you from the witness stand that they had some kind of commitment, either to each other or she to him, I'm not sure of all the details, but you heard the testimony, and if my memory fails me, then, you know, rely on the testimony in case I'm incorrect. But they had some kind of agreement or commitment that she would date only him or wouldn't date anybody else before he left to go to New York for football season. She was supposed to date only him until August, and Kato said that that was a commitment, that they had that commitment. Well, somebody broke the commitment apparently. May 19, as I recall, is Nicole's birthday and for her birthday he gave her an expensive bracelet and on her birthday, as well as I recall, she was sick with pneumonia. That was the testimony, that she was sick, and I think someone said--and it may have been Miss Arnelle Simpson--that the Defendant had brought her soup, taken soup over to her on her birthday because she was sick, or maybe the day after her birthday, but sometime around that time period. But for some reason Nicole broke--broke off their relationship. She broke off the relationship. For some reason on may 22nd or thereabouts Nicole got the courage, the strength to break this relationship off. Now, you have to assume that when someone moves out of your house, that that is n attempt to break off a relationship, and you would think that he would get the point. And when she filed for divorce you would think that he would get the point. Then when the divorce is final you would think that he would get the point. But they go back and forth for whatever reason--and I'm not saying it is all his fault. I'm sure it is Nicole's fault also, if we can fault anybody for you, but she returns that bracelet on or about may 22nd, 1994. She couldn't be bought, she couldn't controlled any more. She had had enough. And I--and when you look at the things that transpire after may 22nd, 1994, you get the sense, don't you, that he finally got the message? It is over. It is over. She can't be bought. You can give me this expensive gift if you want to, that is fine, but I'm not staying in this relationship, take it back, and she gave it back to him.

And the Defense would like you to think that--that this was a--but there is no dig deal to this break-up, that Nicole Brown was upset, that he wasn't upset about it, but was he? Christian Reichardt testified from the witness stand for the Defense and he told you that the Defendant had been depressed during the weeks leading up to the murder also. He had been depressed because of his failing relationship with Nicole. He was depressed because she couldn't make up her mind as to whether or not she wanted to stay in the relationship. You recall that testimony? He was depressed about that. But it seems to me that perhaps his depression turned to anger. Do you have the IRS letter? In the days that followed--and we don't know everything that happened between them in the days that followed, but we know that at some point there was a letter that he wrote to her. We assume that he wrote it because his signature is on the back. And this letter has been marked as evidence and Mr. Fairtlough will get the exhibit number. The actual letter has been marked as evidence, and the letter is dated June 6th, and it is signed O.J., O.J. Simpson, and in the letter--now remember this is--there are no hard feelings here if you believe the Defense case. And this letter begins: "On the advice of legal counsel and because of the change in our circumstances I'm compelled to put you on written notice that do you not have my permission to use my address at Rockingham as your residence or mailing address for any purpose, including but not limited to information and tax returns filed with any taxing entity." Well what is this? What does this letter mean? How is this letter helpful to you? How many times do we break up with someone and then send them a letter a few days later or two weeks later in legalese? And what are the changes in their circumstances that he is referring to? The change in their circumstances is that she has decided that she does not want to deal with him any more and now he is out to hurt her, he is going to hurt her. This letter is People's 25, your Honor.

THE COURT: Thank you.

MR. DARDEN: Did Nicole have some kind of tax problem? Looks like it. In the last paragraph he says: "I cannot take part in any course of action by you that might be misleading to the IRS or the franchise tax board." What is he suggesting to her? How should she receive this letter? And look at the carbon copy. Mr. Cochran asked someone on the witness stand if they knew that Marvin Goodfriend was his accountant, as I recall. We've heard that Leroy Taft is his lawyer. A carbon copy to his lawyer and his accountant. What is going on here? This is supposed to be an amenable break-up? No hard feelings? This is control. This is a subtle threat. And if you disagree with me, fine. The Defense disagrees with me, that is fine as well. But let me tell you something. When the Defense began the Defense case--well, not the Defense case, but when Mr. Cochran did his opening statement, he told you about a witness he intended to call, and this witness seemed to be a pretty important witness and would seem to be, given the evidence that you've heard in this case.

He told you about a woman named Dr. Lenore Walker and he said to you at page 11783 that: "There is an expert in the U.S. whose name is Dr. Lenore Walker and that she is by all accounts the no. 1 expert in America on the field of domestic violence." And he said that: "She has been called by some the mother of the battered women's syndrome."

He went on to tell you that she was a psychologist and she had interviewed and tested the Defendant. The things that I am saying to you and discussing with you today, the testimony that you heard from the witness stand about the domestic violence, the beating, the abuse, the intimidation, the threats, the stalking, did they call one witness to rebut any of that testimony in the People's case? They called 58 witnesses in the Defense case. How many came to address the 1989 incident or the October 23, 1993, incidents that you heard on the tape? Why didn't they call Dr. Walker who could have put this all in perspective for you if what the witnesses said in this case aren't true? I mean, it wasn't true. Dr. Walker could have interpreted this letter for you, but they didn't call Dr. Walker. They wouldn't call Dr. Walker. They better not have called Dr. Walker. And Dr. Walker never stepped foot into this courtroom while you were here in the jury box. They are a group of very, very fine lawyers. They called some of the most expensive experts money could buy. But we didn't see Dr. Walker. We didn't she her explain to you why this letter is insignificant, if that is the Defense position, or why this cycle of violence that led up to Nicole's murder doesn't help to establish motive from a practical sense. And there is something that he said to you on page 11793, and I want to take a moment and shown it to Mr. Cochran before I read it, if I can.

(Brief pause.)

MR. DARDEN: When he finishes I want to read to you something Mr. Cochran told you he would present to you in this case.

(Discussion held off the record between Defense counsel.)

MR. DARDEN: And at page 11793 he said to you: "I'm going to tell you about the facts," he says, "So you will hear from Dr. Walker and you will hear about the battery of tests and I think you will find that she will say that in looking at Simpson, that in looking at O.J. Simpson, she tested him--and interviewing him and looking at him, at this point she finds no evidence of antisocial personality disorder, and I think you will find that becomes very important in this case." So where is Dr. Walker to come here to testify, to take--to take the witness stand, to sit in the blue chair and tell you that none of this is important, that everything I've told you for the last three hours is insignificant and unimportant? Where is she to tell you that he does not suffer from some antisocial personality disorder? She ain't here. And had she come here and expressed an opinion that this was unimportant, we would have cross-examined her, but they can't touch this. They can't touch this. This is important evidence. You have to consider it when you consider motive, when you consider the issue of identity, the identity of this man as the killer of these two people. You have to consider this on the issue of premeditation. This is important evidence. As the days proceeded on we know that he hired an interior decorator. As I recall the testimony, Paula Barbieri, his new girlfriend, you know, the one that he was so happy with--it is odd, but on the one hand they say he was happy with Paula Barbieri, and on the other hand Kato said that he told him, the Defendant told Kato that he, the Defendant, didn't know if Paula was the one. I don't know. But let me tell you something about this letter just to go back and this whole interior decorator situation. The fuse is burning and it is getting short, okay? It is getting short. He is trying to erase her presence, for instance, from his home, okay? This is how short the fuse is getting. He is trying to erase her presence from his home. He has hired an interior decorator to redecorate the bedroom, the master bedroom was it, and the bathroom. They are going to rip out the plumbing. The places she had been, they are going to change. They are going to erase her presence from the house. He is going to erase her presence from the house, or at least he is going to try. He is angry and he is upset. He has been rejected and he doesn't like that rejection and he is trying to get over her, he is trying to get beyond this. And so what does he do?

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

MR. DARDEN: And what does he do? And what does he do? They do work awfully hard so I can't get upset at them.

(Brief pause.)

MR. DARDEN: Page 19.

MR. COCHRAN: Your Honor, I'm not sure, what is the exhibit number on this? I'm not sure.

THE COURT: I believe it is--

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Fairtlough, what evidence exhibit is this?

MR. FAIRTLOUGH: I'm just about to look that up, your Honor.

THE COURT: Let me know. Mr. Darden.

MR. DARDEN: Oh, thank you. Thank you, gentlemen. So what does he do? He gets rid of her wedding photo, their wedding picture, puts it underneath the bed. He is trying to get beyond this, but he can't get beyond this because the fuse is burning, because he is upset and angry that the relationship was terminated by her. I mean, you look at this picture, you look at them, after you are divorced and after you break up with someone, you don't usually keep the pictures out, right? I mean you don't, but do you throw them underneath the bed? You put them in a box or you get rid of them altogether. That is what you do. But in this case, in his case, he is trying to get over her, but he can't. He can't get over her. He can't get beyond this. On the one hand he throws this picture underneath the bed and on the one hand she is out of sight and he hopes out of mind, but on the other hand, she is just beneath the bed or where has access to it, where he can grab it and where he can look at it. He is beginning to obsess with her, he is becoming obsessive with her and he is trying to replace her at the same time with Paula. His relationship with Paula supposedly blooms again all of a sudden at about this time right after she breaks up with him. If she broke up with him on May 22nd and by June the 6th or whatever he and Paula are back together and now they are ripping the plumbing out of the house, people need space, you need time when you end a relationship, especially one that lasted 17 years. He is trying to replace Nicole with Paula and he is trying to find some sense of control. But the fuse is burning. And I just wish Dr. Walker had been here to help explain this to you. I'm sure she could have done a better job of it than me--than I have so far. And so we move on. The days pass--and that photo was People's 536, the wedding photo. And the days pass and we begin to approach June 12th, the day of the recital. You recall that the Defendant had conversations with Kato Kaelin that day and he talked about Nicole, he talked about her dress, he talked about how short it was, he talked about the relationship being over, you know. It didn't appear--you tell me, maybe you disagree--that he and Kato Kaelin had that kind of relationship, the kind of relationship where he would vent his frustration, his frustrations regarding Nicole to Kato. I don't know. You saw Kato and I don't know why anybody would want to express their personal problems with Kato Kaelin, but he did and he talked about Nicole a couple of times that day to Kato Kaelin. And Marcia cross-examined Kato Kaelin and directly examined Kato Kaelin and they talked about those conversations, and as Marcia mentioned yesterday, you know, Kato had a bias and he was biased in favor of the Defendant. You know, he minimized things. That is not to say that he just outright lied about things, but he minimized things. I think he minimized the tone of the Defendant's voice when he talked about Nicole. I think he minimized how upset the Defendant was when he talked about Nicole, but hey, whatever, the Defendant is supposedly seeing Paula. And it is the day of the recital and what happened that day? Well, the fuse got shorter. I will tell you why. Paula, his new girlfriend, wanted to go to the recital, the recital where Sydney was going to be performing over at the school, and they had an argument about that, for lack of a better term. They had a disagreement about that. She wanted to go. He didn't want her to go. He wanted to go alone. He told Kato that, that they had a disagreement about that and she was upset. Well, why is that important? It is important because she left.

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

MR. DARDEN: It is important because Paula left, she left Rockingham, she left Los Angeles, but apparently he didn't know that. Apparently they had their disagreement about the recital. Paula got mad, Paula left town. It is pretty apparent that he didn't know that. I can't tell you how bad that disagreement was or if there were raised voices or whatever, we don't have any of that in the testimony or in the evidence in this case, but we do know that Paula left and that he didn't know where Paula had gone. And the fuse is getting shorter, because what happened that day is this: Paula, as a woman, I guess you know she is asserting her womanhood, she is supposed to be his woman, now she wants to go to the recital. Why not? He won't let her. Why won't he let her? Because he still has hope for Nicole. He still has some hope. He still has some hope. He doesn't want Paula to go to the recital. He won't let Paula go to the recital and Paula realizes why and she packs up and she leaves. That afternoon the Defendant called Nicole. And we will get the right photo board up.

(Brief pause.)

MR. DARDEN: That afternoon he called Nicole's house. He still has got hope. I mean, she has always come back, right? Each and every time that they have--they have gone back and forth many, many times. They have always gotten back together. She has always come back, but she isn't coming back this time but he still has hope. He is put in a catch 22 situation of sorts that day when he and Paula talk about her going to the recital. He has to make a choice that day. He is either going to go to the recital where Nicole is alone, you know, hope in hand, or he is going to choose Paula. It is either Nicole or Paula. If he takes Paula to the recital, takes her out in public, takes her around Nicole, takes her around the Brown family, he has made a choice now. Okay. It is public. Everybody knows he has made a choice. He is now with Paula. Because he couldn't make that choice because he still had hope and he still had hope for Nicole. So he called Nicole on June 12th. He called her and talked together at 2:18 in the afternoon. It was a four-minute phone call. And something happened during that phone call. Well, let me tell you what else. After he finished that four-minute phone call with Nicole, he tried to call Paula. As soon as he hung up with Nicole, he tried to call Paula in the 305 area code, Florida, right here, (Indicating). The phone call lasted--it began at 2:18, it lasted four minutes. At 2:22 he is calling Florida. Something happened. I don't know what happened. Something happened. Whatever happened during that phone call, he had a need to talk to Paula thereafter or immediately thereafter, but he is calling Florida looking for Paula. But we know from the testimony and the evidence in this case already that Paula is in Las Vegas in a hotel room being paid for by Michael Bolton. He doesn't know where she is. Sounds like she got upset, stormed off and went about her business, but he can't find Paula. He is having a problem with Nicole. He is about to lose all the women, both the women in his life, and the fuse is getting shorter, folks. It is getting shorter. And the frustration is building, okay, and the anger is building. And something has triggered his anger because in all of this--you know, this is a tension--this entire relationship over a ten-year period is filled with tension because of the doors being kicked in and the punches and the slaps and the intimidation and the control and all of this. This is a very, very tense relationship and things about are to explode because he has that conversation with her, he has that conversation with her, he can't find Paula. And by the time he gets to that recital that afternoon around five o'clock he is fit to be tied. He is angry. You heard the testimony of Candace Garvey, Steve Garvey's wife. She was also at the recital. She knows the Defendant. She had known him for a long time. He came into the recital. She and Steve spoke to him. They said hello, how are you, how you doing? What was her testimony? What was her response? There was no response immediately. If you recall her testimony, he had a blank stare on his face. He was distracted. She told you that it was as if he looked right through her, as if he didn't recognize that she was there. She told you that his demeanor that afternoon in the recital frightened her and she told you that he was angry. And Denise Brown testified as well about that recital and they told you that he was angry and he didn't look to be or act like the O.J. Simpson they had come to know. Candace Garvey said that he was distant, that his anger was simmering, that he had this look of simmering anger. He was in a slow burn and the fuse was getting shorter. Something set him off. And perhaps what set him off was this four-minute phone call at 2:00 in the afternoon. Perhaps his inability to find Paula that afternoon set him off. Okay. Now, the fuse is really burning now, the fuse is getting shorter, and there is going to be an explosion, folks. There is going to be an explosion. He arrives at the recital, he sees Candace Garvey, literally ignores her. He is angry. He takes a seat in the auditorium. He sees the Brown family seated in the auditorium, Juditha Brown, Lou Brown, Nicole's parents and her sisters. Nicole is seated with them or near them. He goes over to the Brown family and he greets everybody in the family, every one of them. He greets everybody but Nicole. He doesn't address Nicole. This is a family event, right? His daughter, Nicole's daughter, at the recital dancing, but he doesn't address that because he is angry, he is consumed with anger and the fuse is getting shorter. He doesn't appear to be like the O.J. that they knew, the man that they knew. Candace Garvey is frightened by his demeanor. What does he do? He takes a seat behind the Brown family. No seats near the Brown family. Nothing wrong with that, nothing wrong with the fact that he sits in a seat behind the Brown family, but as Denise Brown told you on the witness stand, after a few minutes he just abruptly got up and moved. He got up, took a chair, and in the dark in this dark auditorium, because the program was going on, he takes that chair and he moves into the corner and he sits in the corner of the auditorium. Denise Brown told you that she could not understand, she did not understand why he did that. She told you on the witness stand that she didn't say anything to offend him. Nobody said anything to offend him. Why is he so angry? Who is he angry at? Well, common sense will tell us that he is angry at Nicole. Why? Because he didn't address her. But for another reason as well. As he sits there in the corner in the dark, he is isn't watching the program on the stage. He is watching Nicole. Candace Garvey told you this, Denise told you that as well, that whenever they looked over at the Defendant that he was not looking at the stage or the program on the stage or the kids dancing up on the stage. They told you that every time they looked over in that dark corner at the Defendant he was staring at Nicole. He was staring at Nicole. And that simmering anger that he had, folks, he was about to lose control. There was a--the fuse is getting shorter, the fuse is getting shorter, and there is about to be an explosion, he is about to lose control, and he is about to lose control like he did on those earlier occasions. And sure he didn't kill her on those earlier occasions in October of `93 or in 1989. But that was then and back then the fuse was a lot longer. But now the fuse is way short and it is awfully short. And when the program was over, when the program was over, clearly he knew that the relationship was over. In the past he had done things to Nicole and she had come back, but not only that, the Brown family, he still had the Brown family, but when you consider the evidence in this case, you see that after the recital, Nicole and the kids and the Brown family went to the Mezzaluna for dinner. They didn't invite him to go. He has been rejected, completely rejected. He has been rejected in public and this is how these things work. This is how these things work. You may sit here and think, oh, well, you know, this isn't such a big deal. Why, sure, perhaps in your lives and in your relationship this wouldn't be such a big deal, but you have to put it in the context of the relationship that they have had. This is a big deal. It is a big deal to him and he is rejected in public. They go off to dinner. He is left to go off to dinner with Kato Kaelin. You know, he isn't used to rejection, by the way. He is a celebrity. We talked about that earlier. Celebrities get the best tables, you know. You always get everything you want. You get what you want. There are no rules for celebrities. But on June 12th he isn't getting what he wants and so he goes home.

And the fuse is getting shorter and it is getting shorter and he talks to Kato Kaelin and he complains about the dress she wore and the fuse is getting shorter. Christian Reichardt was called by the Defense and he testified that he spoke to the Defendant at nine o'clock that night and that when he spoke to the Defendant that the Defendant was jovial, happier than he had been in weeks. He went from simmering anger at the recital to jovial at 9:00 P.M. that night. Well, what happened? Why is that? It is because the Defendant has developed a plan, he has come up with a plan to rid himself of the problem that has plagued him for 17 years. And he talks to Reichardt. He called Reichardt, as a matter of fact, if you believe that testimony. So many weird things going on that evening, he wants $5.00 for the skycap, Kato gives him a twenty, he is driving the Bentley to McDonald's, he is calling Christian Reichardt at nine o'clock and he tells Reichardt that he is packing. Right then at nine o'clock he is packing to go to the airport. That was the testimony from Reichardt. But then you have these other witnesses come in, Miss Arnelle Simpson and Gigi, the maid, they come in and they tell you that he always packs at the very, very last minute and rushes around the house and now everybody knows that, that he does that. What is going on here? Why is he packing now? Why is he doing these things with Kato Kaelin? Why is he jovial all of a sudden if you believe Christian Reichardt? Because he has a plan and he knows what he is going to do. He has had enough. The public rejection that day is enough, folks. Let me tell you, the fuse is so short at this point that he is about to explode. The next thing we know he is in that Bronco. He is in the Bronco at ten o'clock or earlier. We don't know when exactly he got into that Bronco, but we know that at ten o'clock he is into that Bronco and he is driving in that Bronco. And why wouldn't he be? How do we know that? We know that, as Miss Clark said, because he keeps the phone in the Bronco and he is panicked and he is out of control and he needs someone or something to help calm him. And so what does he do? He calls Paula. But he calls Paula in two places. He calls Paula at a 310 area code in L.A. and she isn't there. Then he turns around and he calls Paula at a 305 area code and she ain't there either.

Paula Barbieri probably could have stopped this whole thing that night if she had been there to receive his phone call, but now Paula is gone, Nicole is gone, and whose fault is all of this? It isn't his fault, it isn't the Defendant's fault. It is Nicole's fault, it is Nicole's fault, and that is--even in 1989 when he beat her, when he came out of the house he blamed her. Remember when he spoke to Edwards? He didn't want her in the house any more. He had two other women. Then we come to find out that she found out that he had been to two women and she was upset about that and wouldn't sleep with him, but he took it out on her. When you listen to the October 25, 1993, 911 tape, he is blaming her because she had a relationship with a man a year and a half before she had moved out, after she had filed for divorce when she was literally a single woman out there on her own. He always blamed her. Everything was her fault. And his break-up, his problems with Paula, the fact that he lost Paula was her fault. It was her fault because she went back and forth in terms of their relationship. And the fuse was short and the fuse was about to explode. Are you going to take a 10:30 break, your Honor?

THE COURT: Yes.

MR. DARDEN: And the bomb will explode when we come back.

THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break at this time. Remember all my admonitions to you. We will stand in recess for fifteen minutes.

(Recess.)

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

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. 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. Darden, you may continue with your argument.

MR. DARDEN: Thank you, your Honor. We are getting there. I've talked much longer than I had ever expected, and I don't apologize for that, because I think it is necessary that we have this discussion.

THE COURT: Mr. Darden, if you would keep your voice up just a little so I can hear you. Thank you.

MR. DARDEN: So I apologize in a sense I guess, but I have a duty and you have a duty and I'm not going to have much of an opportunity later I think to talk to you, and so I wanted to share these things with you, because I think they are important and because I think they may help guide you in your deliberations.

But when we left off we were talking about the fuse, how short the fuse was getting and how the Defendant was on his way to Bundy in that white Bronco, the same Bronco he drove that night in October in 1993. And so he is on his way and he is panicked and he is out of control and he is calling Paula and he can't find Paula. He calls her in L.A., he calls her in Florida. She is no where to be found. He can't find her. He has lost her. And he has lost Nicole. And whose fault is this? It is Nicole's fault. He made a choice that day. He chose Nicole over Paula and he lost them both. And so he arrives at Bundy, and Miss Clark discussed with you yesterday the details of the murder, of both murders, and I don't want to, you know, repeat all that she said, but one of the things that she said that I just want to elaborate on a little bit is his choice, his weapon choice, the use of a knife. This is a rage killing and it is up front and it is personal and that is why you see all the brutality that you see. Common sense tells us that. I mean, we know that just from life experience and from living in L.A., we know what kind of killing this is. This is a rage killing. And he is using a knife because he is there to settle a personal score, a personal vendetta that he has. He stabs this woman in the neck. He is right there. I mean, it is one-on-one. And the rage that he has, the anger, the hate that he has for her that night at that time, it is like it flows out of him and into the knife and from the knife into her, into her. And he kills Goldman and he kills her in this rage. And let me make it clear to you, he is in rage, but he has made a conscious decision, a premeditated decision, a deliberate decision to go there and do what he is about to do with this woman, otherwise why would he take a big knife with him, right? He killed her that way because he wanted to make a statement, he wanted to teach her a lesson, he wanted to let her know, he wanted her to be there face-to-face, to know just who it was who was doing this to her. With each thrust of that knife into her body and into Ron's body, there is a release, you though, a small release, like a tiny time capsule, like contact, there is a release, a gradual release of that anger and that rage and he stabs and he cuts and he slices until that rage is gone and until these people are dead. And after that rage is gone he is better. One of the most remarkable things about this case that is after this man, him, (Indicating), after he did this to these two people, he didn't run away, he didn't jog away, apparently he didn't limp away. You heard agent Bodziak's testimony. He just walked away. He had released all of that rage and that anger during this homicidal fit he was having as he killed these two people. Now, I'm just a messenger. I hate to be the one to stand here and tell you about these things, but this is a murder case. This is what he did. All these things we talked about, these are the things that he did. This is how he lived. This is his life, okay? And so I think we have come full circle at this point. We have shown you that he had the opportunity to kill. We have shown you that he had the motive, that he had a motive to kill. We have shown you in this trial that he was physically capable of killing. We have shown you that he had a reason to kill. We have shown you that he would have killed, could have killed and did kill these two people. He is a murderer. He was also one hell of a great football player, but he is still a murderer. And so we have come full circle. There was Ron and there was Nicole and--Ron, he was just at the wrong place at the wrong time. Nicole, she was in the wrong place for a long time, and there is this common factor, this common element between the two of them, one thing they had in common with this man, this Defendant. And so we began with them, two very much alive, vibrant human beings. We went through 1989 and 1985, through the beating he inflicted on her and we went from that in `85, into 1989, and we came to this point on June 12th at Bundy.

MR. FAIRTLOUGH: Your Honor, could you cut the feed.

MR. DARDEN: So we have come full circle, and the only common element in all of this and the only direction in which all the evidence points is to O.J. Simpson. And I told you when this began that I had the hardest job. Nobody wants to do anything to this man. We don't. There is nothing personal about this. But the law is the law and it applies to us, it applies to you, it has to apply to him.

He made a promise a long time ago. He promised to love and to cherish and to keep her. He married her and he made those promises to her. He promised to be her husband and he was. And let me say to you that every wife killer or ex-wife killer starts off as a loving husband, and in every household where there is a marriage between a man and a woman there is a picture just like that picture right there, (Indicating). There is a picture just like that on every mantle in every home where the husband killed the wife. What he did that night on June 12th, the night of June 12th, to these two people, this brutality, is a violation of every law, high and low, that we can possibly think of. And I suppose there are some people that say, hey, we should cut him some slack, and you know, if this were a case of, you know, theft or embezzlement or something like that, you know, you can always make restitution, but this is a very, very serious charge. Two people are dead. Let me say that what you do in this case is entirely up to you. You are the jury. When I sit down, I sit down. I'm done. I have completed my duty. I have done what the law requires me to do.

I have lived up to the oath, my oath as a member of the District Attorney's office. And I presented, we hope we presented the best evidence we could. And if we didn't present the best evidence we could, don't hold that against us. I just want you to--you know, when the time comes to go into the jury room, I just want you to--somebody, somebody just say let's calm down, let's elect a Foreperson, let's read the law, let's take a minute and let's just look at the evidence. I would just like you to use your common sense when you do. When you do that, when you use your common sense, when you try to be objective, when you remove all of the emotion out of this case, when you remove all of the sympathy and passion and when you just look at the facts, the evidence as best you can, you will come up with the right decision. The world is watching and everybody wants to know what you are going to do. Marcia Clark and I know you are going to do the right thing under the law. And whatever you do, the decision is yours, and I'm glad that it is not mine. Let me turn my attention, and hopefully yours, to the Defense case, if I can talk about that a little while. They put on a Defense. They called 58 witnesses and they called 58 witnesses in this case to hopefully raise a reasonable doubt in your mind as to the guilt of this man. You heard from some real, real muckity-mucks, some real big shots in the field of science and forensic science and DNA, and you heard from Henry Lee, a real impressive group of experts. I suppose when you consider our case, you have to consider their case as well, and you have to assess the credibility of their witnesses, just like you have to assess the credibility of our witnesses, and when it comes to assessing the credibility of witnesses, you apply the same standard, regardless of whether it is a Defense witness or a Prosecution witness. You have to decide whether or not that expert testimony is worth anything or what it is worth. I hope that when you do that, I hope you keep in mind that, you know, people made a lot of money testifying in this case and you should consider that on the issue or question of whether or not those witnesses are biased. But study the Defense case carefully, I insist that you do, as painful as some of it might be for you.

But consider this: The Defense that they put on in this case, it wasn't really an affirmative Defense, wasn't the kind of Defense where they showed you that he wasn't there, okay, at the time of the murder. They never--they never did that. They never showed you that. What they did was they attacked all of our evidence. Well, not all of it. They didn't attack the domestic violence. There are lots of things that they attacked initially, only to find out of course, only for you to find out that they didn't have a chance with it. But what you really wanted to know in that Defense case, and I can't talk to you directly, but I'm going to assume you are reasonable people, you have common sense, good common sense, you are all successful at life. What you really wanted to know, correct, maybe I am wrong, but what you really wanted to know is where was he at the time of the murders? Right? Where was that Bronco? Have they proven to you that that Bronco was not at Bundy or could not have been at Bundy? That would have been very helpful to you. Would that not have been impressive to you? Isn't that the kind of evidence you want to hear, that you want to see, credible reliable evidence on that issue. That is the kind of evidence that raises a reasonable doubt. They didn't do that. They didn't put on that kind of evidence because they couldn't put on that kind of evidence. They don't have that kind of evidence. We all know where the Bronco was at 10:15. It was at Bundy. You would have liked to have known that some other person was with Nicole Brown or Ron Goldman, right? I mean, wouldn't you like to have--wouldn't you not have liked to have seen some evidence from some witness that the person--

MR. COCHRAN: Your Honor, this is improper.

THE COURT: Overruled.

MR. DARDEN: --that killed these two people was someone other than the Defendant? When Mr. Cochran spoke to you during his opening statement, he talked to you about witnesses, witnesses that he intended to call, and he gave you the name of those witnesses and he told you what they were going to say. You know, we did the same thing. I did the same thing. You know, on domestic violence I told you I was going to call a few other people. I didn't. I think you got the point. And I can't keep you here forever. Apparently this sequestration thing is a real drag, right, and I would like to end this experience, and I can understand that, but he promised to present to you the testimony of some witnesses who, had they testified, could have--could have perhaps raised a reasonable doubt in this case. So where are all those people? Who are those people? Well, one of those people he mentioned was a woman named Rosa Lopez? Do you remember this in his opening statement? He said that Rosa Lopez was the maid that lived next door to 360 north Rockingham and she would come had here and testify that the Bronco was parked at 8:00 P.M. that night, the night of June 11th, that it was parked in the exact same place the police found it the next day and that it was parked in the exact same manner, tail sticking out, remember that? He said he was going to present that testimony to you. He was going to call this witness. Well, where is she? Where was she? You would have liked to have heard that testimony, wouldn't you? He didn't call her. He told you about a woman named Mary Anne Gerchas and he told you that she would testify that she was out on Bundy Avenue and that she saw four men running, two Hispanic men, two white men, and that a couple of the men wore knit caps, we have a knit cap at the death scene, and that this happened at about 10:45. That is what the Defense told you they would do. They told you they would call Mary Anne Gerchas to give you that information, and you probably--you may not remember all the names, but I'm sure you remember that when you heard this that, wow, the Defense is going to call these people, whoa, this is going to be some dog fight. I mean, these people are going to come in here and they are going to provide an alibi. Rosa Lopez is going to give an alibi by showing that the Bronco had been there all night. Mary Anne Gerchas was going to come in and testify that, hey, there were other persons, other men apparently running from the area near 875 south Bundy, a few of them wearing ski caps consistent with perhaps the real killer, a killer other than this man here. Did they call Mary Anne Gerchas? What happened to her? Where is that testimony? You would want to hear that, wouldn't you? And right after they talked about Gerchas they talked about a man named Tom Lang who was supposedly down the street who also saw somebody. They told you that Tom Lang saw Nicole Brown standing on the street at Bundy embracing--embracing someone, and that Tom Lang, as he stood there on the street, also saw a man standing some distance behind them, a man who appeared angry, a man standing there with his hands clenched looking at Nicole and this other person, the person she was embracing. It is right there in the transcript at page 12,225. Where is that person? We already talked about Dr. Lenore Walker. Where is Dr. Walker? He told you Al Cowlings would testify. Where is A.C.? He told you that the Defendant was out chipping golf balls. He told you Paula Barbieri was going to come in and testify about her relationship with the Defendant. We didn't get Paula Barbieri. What did we get in terms of her relationship with the Defendant? We got other people, people on the periphery, the stuff you needed to hear to raise a reasonable doubt, and you are reasonable people, never got presented in this case. It never got presented. What you got was a lot of smoke. You got people like Gerdes telling you that the crime lab is, you know--can't be relied on, but then the substrate controls are all clean. You got guys like Professor MacDonell out doing glove experiments where he has taken his own blood and then he is putting it on a new pair of Aris gloves and he is rubbing it around like this, (Indicating), to see if they shrink.

When you look at the Defense in this case you will see that it really isn't helpful at all. It is all smoke. It really is all smoke. And you know, you are going to have to be careful when you deal with that Defense evidence. Some of it was pretty good, though. I mean, that stuff they did to Fuhrman was textbook stuff from a legal perspective, but even that you have to look and say, well, what does it do for us? It upsets us. But then you have to look at all the evidence and see how it is helpful, if it is helpful at all. They called demeanor witnesses and witness to testify to the Defendant's demeanor after the murders, and Marcia Clark talked to you about that, you know. Murderers don't walk around with neon signs saying "I just killed somebody." People do things, commit crimes like this, especially a rage killing like this one, he will calm down, they will calm down and they want to get away with it. He wanted to get away with it, so he certainly isn't going to do anything that is going to draw attention to him. But they showed you these photographs. They showed you photographs of the Defendant and some women at an event the night before the murders. Remember that? Because he had Carol Connor, the woman with the keyboard vest come in and testify about the event the night before. Remember she told you that she witnessed an exquisite romantic moment between the Defendant and Paula Barbieri? Well, what does that do for you? How does that help you resolve this case? It doesn't help at all, especially when you consider the fact that he and Paula had a disagreement, for lack of a better term, over his refusal to let her go to the recital the next day. But beyond that, it is a picture. He is at this big fancy event and somebody says "Will you please pose with us for a picture?" Well, when somebody takes your picture, what is the first thing they say? "Cheese." What point is it? What good is it? What value is a picture like that when somebody is posing for you? And even in that video after the recital, he sees the video camera. He looks right toward it. Posed-for pictures are worthless. And they call that guy McKay. Remember Mr. McKay who worked for the AARP--was it the AARP or the American Association of Psychologists or something like that in Chicago, and there was a golfing event and the Defendant came to the event as the spokesperson for Hertz and Mr. McKay and the Defendant and two other gentlemen took a picture together. They are posing for a picture. Not only are they posing for a picture, the Defendant is basically at work, he's a spokesperson for Hertz. It is his job to go out and play golf with these people. So how does that help you? There is nothing in the record that establishes for you--and I guess Dr. Walker could have done this--whether or not, you know, murderers have neon signs over their heads that indicate they are a murderer. How do you know? How do you know? Whenever you watch TV you watch the news and some brutal killing happens and it is the neighbor, they always interview the neighbors of the neighbor who did the murder and the neighbor says how was he? How did he act? What kind of guy was he? Well, he was a nice guy. They always say that. You don't know. You can't tell. The testimony you heard about demeanor on the airplane and at the airport was a waste of your time really, but if you want to attach some significance to it, you go ahead, it is up to you. I mean, you are the jury. And the only demeanor really that is important was his demeanor that night, you know, after he got into that Bronco and headed toward 875 south Bundy. But this Defense that they have put on in this case is what we in the profession call a shotgun Defense and it is the Defense as old as the law. Way back in the day--way, way back in the day, even back when I was in law school, old lawyers and old law professors shared with us the old school approach to a Criminal Defense case, and every lawyer knows this. You are a Criminal Defense attorney and you have a tough case. This is what you do. You argue the law. And if the law is against you, you argue the facts. And if the facts are against you, you raise hell and blame somebody else. When the facts and the law are against you, blame the police, blame the Prosecution, point the finger elsewhere, create a smokescreen. And that is what they have done in this case, ladies and gentlemen, smoke and mirrors. That is it. That is what you've got. They put on those timeline witnesses. Remember Ellen Aaronson and Danny Mandel, Judy Telander, Pilnak. Remember Pilnak? She was the woman that had two watches. If you haven't learned anything else about this case, I'm sure that you have learned that there are people who are banging at the door to get in on this case. Those people and the testimony they had to offer really wasn't helpful at all. I mean, Danny Mandel and Ellen Aaronson were on a data blind date. They went to the Mezzaluna. They say that they walked past Bundy. In fact, Ellen Aaronson gave an interview to the police the day after the killings and she told the police that she passed Bundy at eleven o'clock, but once she heard about the Prosecution's theory of the case, well, what does she do? She went back to the Mezzaluna, she talked to Mandel. They got together and they attempted to reconstruct what they did that evening. She told the police she passed at eleven o'clock. Mandel told the police they passed between 10:28 and 10:32 and he knew that because he checked his watch, but even Mandel, even Mandel himself didn't know whether he passed 875 south Bundy that night or not. He didn't know. He didn't know until--if it ever happened, he didn't know until he and Aaronson got together and started putting their notes together trying to do as they say, to reconstruct what happened. His time and passage at 875 south Bundy contradicts her time. They got together on this story because they got together and attempted, as they say, to reconstruct what happened. What good is this testimony to you? And if they want to say they passed at 10:28 and there were no dead bodies out there, well, fine. I don't know how they can say that. I mean, they are on a date, they are looking at each other. That pathway is pitch dark and we know that. We know that because when the bodies were discovered the police were called and Riske said he couldn't even see any bodies up that pathway when he first arrived and got out of his car. He had to walk all the way up the pathway and use a flashlight. The only reason anybody found the bodies was because of Kato. Not Kato the human, Kato the dog. So how much attention were they paying to that particular pathway? There are lots of pathways leading to lots of condominiums on Bundy drive. That testimony isn't helpful to you at all, but hey, deal with it whatever you like. Then they called Francesca Harman. Remember her? She testified that at 10:20 she was driving west on Dorothy, okay, and she is driving west on Dorothy south of Bundy and she got to Bundy and she made a right-hand turn. She didn't see any bodies. Then I asked her some questions. I said, well, when you made that right-hand turn at--at Bundy, did your headlights hit 875 south Bundy? I mean, did they sweep across the front of the condominium? What was her answer? No. I asked her did your lights hit the gate at 875 south Bundy? She said no. So I asked her this: Did you tell the Defense that your lights didn't hit the gate at 875 south Bundy? And what was her response? I didn't have to. They were in the car with me. They took her out on a test drive to have her show them the route she took that night. It was clearly apparent that she could not have seen what was in front of 875 southbound because her lights never hit the front of the location and they called her to testify anyway. What does that say about the Defense case that you heard? Well, it says they are desperate. That is what it says. We are not wedded to a 10:15 time frame, okay? The killings very well could have happened at 10:15, but they could have happened at 10:17 also. They could have happened at 10:21. We called witnesses to the stand to testify to a point in time that they first heard the wail of that dog, of Kato, because we know that the wail was a plaintive wail and we know the dog was in distress, and so we know that something was happening, something very bad was happening to the dog's master. And if the dog was first heard around 10:15, I don't know, that may mean that the Defendant is hiding outside and the dog is aware of it. It may not necessarily mean that the killing happened at that specific time. It happened somewhere around 10:15. We can't give you the exact time. We can't give you the exact time to the minute. If they want to push the time to 10:30, push it to 10:30, because anyway you look at it, he has still got time to get to Bundy because we know he is in the Bronco at 10:03. He has got to time to get to Bundy and do these killings and get back to Rockingham by 10:54 or 10:45. Their witness, Robert Heidstra, told you that on the Sunday night you could easily drive from 875 south Bundy to the Defendant's house and he knows that because Heidstra, he worked next door at the Salingers, okay? He worked at the Defendant's neighbor's house. He told you that you could drive there from 875 south Bundy under four minutes on a Sunday night easy. So it doesn't make--it makes us no difference. Makes us no difference at all as far as all of the timing is concerned. But they also called Denise Pilnak, the woman that wore two watches, and she came in here and showed you her two watches so that you would find her credible and believe her because she wanted to get in on this case. Weird stuff. Weird stuff. But you--I don't know. She testified that she drove--what did she drive? No, she came home with Judy Telander and she made some phone calls and she kicked Telander out of her house at a certain time and all of this and how--all of that. How does she know that? Well, because six months after the murders she put together this timeline, six months later. So how is that helpful? Then there is Telander and she is describing her drive up Bundy or around or near Bundy and near Bundy. You know what is weird is that when you look at Telander's testimony and you look at Harman's testimony and you look at Heidstra's testimony and you look at Pilnak's testimony and you look at Aaronson's testimony and you look at Mandel's testimony, all of these Defense witnesses, and what you see, what you come away with is this: These people were all at Bundy at the same time basically. If you believe them, they are all basically on Bundy at the intersection or within view of 875 south Bundy. They are all there in this small area basically at the same time. But when you talk to them, when they testify, they all tell you they didn't see any cars, they didn't see any people walking, they didn't see each other. Mutually exclusive, they mutually exclude each other. All of that testimony, they contradict themselves. They contradict themselves. And I'm not here to say these people are lying or whatever. They may just be mistaken, I don't know. But you have to evaluate their testimony and I just think it is important that you--that you take note of that. And I hope as well that you would take a look back at the timeline witnesses, if that is what we can call them, the ones that we called, Mark Storfer who was concerned that the dog barking might wake his little boy, and so he told you what time it was. He looked directly at the clock and he was interviewed the next day, the day after the murders. He knew what time it was when he heard the dog barking. Look back at Eva Stein. She lived in the condo directly above the walkway where the bodies were found. She lived right next door at 873 south Bundy. I believe her time was 10:20. Was it 10:30?

MS. CLARK: 10:20.

MR. DARDEN: It was 10:20. Those are the People you can rely on in terms of time. They are right there. They live there, they live right there near 875 south Bundy.

So you've heard the Defense and you have heard the Prosecution case, and as I said before, you are going to have to make the decision in this case, and you know, whatever decision you make we will live with. But after I finish talking to you today, the Defense is going to talk to you, and I don't know who is going to talk to you or who is going to talk to you first. I would ask that you listen and listen as attentively as you have listened to me, apparently, but I'm going to ask you as well that you keep in mind that as you listen to them consider this: Hope at least that they can somehow extrapolate from all the evidence we've heard in this case where the Defendant was at the time of the murders. If he ain't the murderer, where was he? Maybe they can tell you that based on the evidence in this case. And they put on a Defense, and bear in mind and insist I think if they can explain to you what happened to O.J. Simpson's Aris light 70263 gloves, the gloves found at the murder scene, the same style of gloves purchased by Nicole, the same style of gloves you see him wearing in that January 6, 1992, game photo. Where are his gloves? They called 58 witnesses. They called the maid, Gigi Guarin. They called Miss Arnelle Simpson. He never owned a pair of those gloves. I don't recall the Defense asking them if he owned a pair of those gloves. I don't recall the Defense asking the maid, the woman who kept the closet, who put things up, who did the laundry, I don't recall them asking her if he owned a pair of gloves like that, like the ones we found at Bundy, like the one we found behind his house. And I don't recall them asking the maid whether or not he owned a pair of Bruno Maglis. This is stuff you would want to know. Insist that the Defense explain to you just who does--who kills two people wearing $200.00 leisure shoes if it ain't this man, if it ain't this Defendant? Ask them to explain to you why the bloody shoeprints leading away from the body are size 12, his size. And where did all that blood come? Why is it when he spoke to Tom Lange, he told Tom Lange the shoes he wore the night before were white Reeboks? They put on a Defense and you would expect that if the man that Allan Park saw entering the Defendant's house that night was not the Defendant, would you have expected them to call that man to tell you that, hey, it was me. It wasn't the Defendant, right?

If O.J. Simpson did create or cause those thumps on the wall behind Kato Kaelin's room, what did it? When he hears these the Defendant doesn't seem too concerned those. Kato is frightened enough to grab a flashlight, he is frightened enough to tell the woman he is talking to on the phone, hey, if I'm not back in ten minutes, call the police, worry about me, or words to that effect. But when he tells the Defendant about these thumps on the wall, he isn't too concerned about it. He has Westec Security. We know that because the police talked to Westec, because they entered his house. Did the Defendant call the police to say, hey, I may have a prowler on my property? Did he tell Kato to? Did he call Westec, his private security, to come check this out? Did they? No. Why not? Because he knew. The Defendant knew who caused the thumps on the wall. It was him. Why did he lie to Allan Park about being asleep? He wasn't asleep. And there are a variety of questions, a variety of questions that you ought to insist be answered, that should be answered by you, by the Defense before you even consider acquitting this man of these very, very brutal crimes. The whole thing with the cut on his hand, what a fluke that is. Are you going to fall for that? They talk about cover-ups. That is a cover-up. That is a cover-up. Ask them to explain to you how--how it is, if there were two killers, how the other one got out of that bloody criminal scene without leaving any evidence of his presence. A major, major question in all of this is what happened to that little black bag, the bag on the driveway, the one that Kato offered to go get that night just before the Defendant left for the airport? The Defendant said "I will get it, I will get it." What happened to that bag? Has it been seen since? The Defense--well, we know that some of the luggage apparently taken to Chicago by the Defendant was seized by retired Judge Delbert Wong. Remember the Louie Vuitton bag, the one the Defendant came back from Chicago with, the one he gave to Robert Kardashian? You saw it on tape. What happened to the little black bag? What happened to the contents of that Louie Vuitton bag? When you look at the tape, you see Kardashian standing there in front of the Defendant's house and you can tell that that bag is full, but when that bag comes to Delbert Wong, to Judge Wong, when it is pointed out to him, when it is seized by him months and months later, there is nothing in the bag. The bag is empty. What was in that bag? Ask them to explain to you why it is that if he didn't do it, why then is there a ton of evidence pointing to him and only to him. And ask them to explain to you, hey, if this is a rush to judgment, why then did the police go out to that house eight times prior to 1989? Why didn't they ever arrest him? And if this is a rush to judgment, why did the police stand out in front of the house, in front of 875 south Bundy that night for a couple of hours doing nothing, as the Defense has asserted, doing nothing but waiting for Vannatter and Lange? That is a rush to judgment? This is no rush to judgment. Unfortunately this is just how things go. Those cops got out there to conduct a murder investigation and that investigation led them to Rockingham. They followed the blood trail. Using your common sense and when you evaluate all the evidence, you should do the same thing, take a look at the crime scene and follow that blood trail, because when you do, you are going to follow it right into his house, into his yard, into his bathroom, into his bedroom, right into his lap. And that blood trail went nowhere else. It didn't go anywhere else and it didn't go to any other person. When I began this discussion with you last night, you know, I talked to you about justice and what justice really means in this case. And it just means doing the right thing under the law. I mean, basically that is all it means, following his instructions, just do what he tells you to do, the way he tells you to do it, and you will be fine. And I've spent hours talking to you and I've talked to you about the explosion, about that fuse, how the fuse gets shorter. We have explained to you the--that he had the opportunity and the means and the motive to do it and that he did it. And we discussed a little bit about the smoke. We talked about the smoke the Defense has put up. You got to find--you have to find your way through the smoke. One of the first things they are going to tell you is the Prosecution's case lasted six months and ours lasted two months. They are going to tell you that. You just keep in mind who was cross-examining those witnesses for days and days and days about minutia, about minutia. There was a lot of minutia in this case and you know it was because you didn't write it down. The Defense got lost in minutia in their attempt to confuse you and to raise a reasonable doubt.

Well, let me explain justice to you this way and then I will sit down and I will be quiet. The People put on their case, the Defense put on their case, and I assert that the Defense case is a bunch of smoke and mirrors, all about distracting you from the real evidence in this case. So imagine the smoke and imagine a burning house. Imagine that you are standing in front of a burning house, and from inside that burning house you can hear the wail of a baby, a baby's cry, a baby in fear, a baby about to lose its life. And you can hear that baby screaming. You can hear that wail. Now, that baby, that baby is justice. This is baby justice. Usually justice is a strong woman, but in this case justice is just a baby. And you hear that baby and you hear that wail and you see the smoke, you see the Defense. There is all this smoke in front of you and you feel a sense--you have a sense of justice and you have a sense of what the law requires and you have a strong commitment to justice and to the law and you want to do the right thing while justice is about to perish, justice is about to be lost, baby justice is about to be lost. And so you start to wade through that smoke trying to get to that baby. You have got to save that baby, you have to save baby justice, and you happen to run into smoke, find your way through the smoke, and if you happen to run into a couple of Defense attorneys along the way, just ask them to politely step aside and let you find your way through the smoke, because the smoke isn't over, okay? The smoke is good to get heavier because they are about to talk to you. Let's use your common sense. Wade through the evidence. Get down to the bottom line. And please do the right thing. It has been a Honor to appear before you and we will wait for your verdict.

THE COURT: Thank you, Mr. Darden. All right. 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. Ladies and gentlemen, that concludes the Prosecution's opening argument to you. What is next is the Defense argument, and what I'm going to do at this time is take an early break as far as you are concerned. As with when the Prosecution argument started, you noticed that they used some demonstrative boards for you that were not actually in evidence, and what I need to do now is to preview the ones that the Defense is going to use to see if they are appropriate and acceptable for use during the course of the argument, so that is what we will be doing here in the courtroom for the next--probably take us about a half hour or so to do that. So I'm going to let you go early for lunch. However, while you are up there at lunch, I'm going to ask that the bailiffs pass out to you a one-page questionnaire, and I have some questions that I wanted to ask of you about the deliberations, and you will notice that we have a new table in the jury room today because we are getting down to the point where we are actually going to start the deliberations shortly in this case. My guess is the way that we are going with the arguments--they are going a little faster than I had anticipated, and my hope is that you will actually have the case in your hands and started deliberations on Monday. That is my hope and expectation. In any event, I'm going to ask you about what your desires are as far as the hours and days of deliberation. Do you want to work a formal 9:00 to 5:00 day? Do you want to work an evening session? Do you want to work on--say, put in a half day or a full day on Saturday? If so, you will have--all the deliberations, by the way, have to be done here in the courthouse and in the jury room. But those are questions that I need to ask of you to see what your feelings are, because obviously you are the ones who are doing the work in this case. Also, I needed to tell you some things about limitations on visitation while deliberations are in progress, and I wanted your thoughts on that as well. So it is a one-page questionnaire. Give it some thought. Keep these answers private to yourself, and when I get your responses, then I will make determinations as to the length of the deliberations and the nature of visitation during deliberations. All right. So you all remember my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, and don't allow anybody to communicate with you with regard to the case. Fill out the questionnaire. Have a nice lunch. And we will see you back here at 1:30 and we will start the Defense argument at 1:30. All right. Have a nice lunch.

(At 11:44 A.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; WEDNESDAY, SEPTEMBER 27, 1995 1:35 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: Back on the record in the Simpson matter. All parties are again present. The jury is not present. The record should reflect that over the noon hour, we had an informal showing of the argument boards produced by the Defense. Counsel, any comment before we resume with the jury?

MS. CLARK: Yes, your Honor. The People have a couple of objections to lodge.

THE COURT: Miss Clark.

MS. CLARK: I filed with the court a couple of motions. One dealt with the potential for Mr. Cochran to mention either Detective Fuhrman's invocation, the other--and with the potential for referral to matters contained on the tape that were deemed inadmissible by this court. And we have proposed a--we have proposed a remedy should such violation occur, and the Defense response doesn't appear to be very responsive to the People's motion. So the People would urge the court to instruct counsel that if he does violate the court's order by mentioning Detective Fuhrman's invocation or if he does violate the court's ruling with respect to the content of the tapes that was deemed inadmissible by referring to them in some manner in closing argument, that the appropriate sanction and one that would prevent--that would make his violation not worthwhile, not worth doing, is to say if you do mention such a thing, this is the remedy. "I will instruct the jury that Detective Fuhrman did not plant the glove." The remedy has to be something that makes it unworthwhile for the Defense to violate the court's order. Otherwise, if all it is is a monetary sanction or an admonition that it's improper in front of the jury, that would not be--that would not give the Defense incentive to abide by the court's ruling. And so the People urge the court to make sure that the Defense does not violate rulings by giving--making a sanction onerous enough so that it would not be worth their while to do so. With respect to the burden of proof chart, does the court want to hear that now?

THE COURT: Yes.

MS. CLARK: We filed the motion. Did the court have an opportunity to read our motion on it?

THE COURT: No. I have not seen it.

MS. CLARK: I think--

THE COURT: Do you have the chart handy?

MS. CLARK: I do. Do you have an extra copy there?

THE COURT: Thank you.

MS. CLARK: Did Miss Robertson give it to you?

THE COURT: Yes.

MS. CLARK: Okay.

MR. DOUGLAS: Would the court like to see the board, your Honor?

THE COURT: Yes. Miss Clark.

MS. CLARK: The problem with this board is that it's extremely misleading and it's going to confuse and mislead the jury on a matter of law. And it's one thing to draw reasonable inferences from the record and from testimony to say we've heard this, we've heard this, therefore that, but there is no misinterpretation of how that is permitted.

And counsel although can ask--although counsel can ask the jury to draw unreasonable inferences from the record and that is what he will do, I do not think there's any authority permitting counsel to ask the jury to misinterpret the law, which is what this invites them to do by creating the impression that the burden of proof is so overwhelming, it would be unbelievable that we could get a conviction in any case if it were as stated on this chart. It's misleading in five ways. First of all, it contains phrases, several of them, that supposedly describes thresholds of evidence that don't exist and have never been a part of the definition of reasonable doubt. It contains the phrases "Highly unlikely," "Less than likely," "Probably not unlikely" and a variety of others that the court has seen. All of these are used to describe thresholds of evidence that fall in the category of not guilty according to the chart, but none of them find their way into the penal code section 1096, definition of reasonable doubt. So it's misleading in that respect. Secondly, it's misleading because it contains terms in the not guilty range that are consistent with guilty. For example, the phrase "May not be" is used to describe a threshold of evidence in the category not guilty when in fact under 290, the jury is entitled to convict the Defendant if all they have is some possible doubt. Excuse me. And as the court knows, I did go over with the jury at some length the fact that a mere possible or imaginary doubt is not sufficient to raise a reasonable doubt. What this chart conveys to the jury is that mere possible doubt is sufficient. It contravenes the burden of proof by saying that certain terms--by certain of its terminology in some of those levels, what they say is not guilty is actually guilty. You see what I mean? So, third, it's also misleading because it implies that proof beyond a reasonable doubt is absolute doubt. I mean, absolute certainty. In other words, no doubt at all. It does that by implication by having the bottom of it not guilty or absolutely not guilty, creating the impression at the top of that which is the burden of proof we have to carry is absolute certainty. There's nothing in this world that could be proven with absolute certainty. That's why we have proof beyond a reasonable doubt as a standard. Yet by implication, that is what the chart seems to infer to the jury and that's direct misinterpretation of the law.

Fourth, it's misleading because it uses terms that are synonymous, treating them like they're distinct categories. For example, the terms "Probably not," "Less than likely," "Unlikely," they're synonymous, but in this chart, broken down as though they're separate gradations when, in fact, they're all the same. Same thing with "Perhaps" and "Suspected." So they create gradations that really don't exist. It's a figmentary kind of depiction of all of the levels that a person might have a belief and so it amplifies the burden of proof unfairly. Fifth and last, the chart is misleading because the visual nature of the presentation of the degrees of proof suggest indirect and unsubstantiating numerical levels of certainty. It would imply that there is some kind of numerical level that could be attached to what constitutes guilt beyond a reasonable doubt. And the inference drawn here by the number of levels that they have, if you work it out mathematically, is that 93 percent equals guilt beyond a reasonable doubt. That's improper and we don't categorize our burden of proof by mathematical probabilities or by quantities that can be mathematically defined. That would be impossible to do. It's misleading to the jury and it's improper. So we would ask the court--urge the court strenuously not to permit this chart as the jury will be misled to what the People's burden of proof really is and what is meant by proof beyond a reasonable doubt.

THE COURT: All right.

MS. CLARK: And then--and Mr. Mayvis points out correctly, as we cited at the end of the motion, your Honor, the freeman case makes it very, very clear that to vary from the standard reasonable doubt instruction is a perilous exercise, and this chart varies substantially from the definition given to the jury in their jury instruction and from the definition given in penal code section 1096. And for all of these reasons, because it is misleading and because it is a very dangerous practice and because it may very well give the jury a misimpression of what the burden of proof really is, it should not be allowed. Counsel's also previewed for us the--laser show they intend to play. What counsel has attempted to do is subvert the court's ruling concerning the video clips by using stills from videotape, and I thought the court said we couldn't do that and yet, that's what they've done. So instead of playing the moving picture, they took the video clip and just used a still from that. I don't--

THE COURT: My recollection though is that the Prosecution array that was displayed to us also included static photos of persons while testifying.

MS. CLARK: I thought we were precluded from using them.

THE COURT: Not the static photos, no.

MS. CLARK: Oh, I didn't know that.

THE COURT: Yeah. The actual use of the videotapes. But if you want to say this is so and so, this is what the person--this is who it is, this is what they testified to, that's permissible.

MS. CLARK: Oh, okay.

THE COURT: All right.

MS. CLARK: Never mind.

THE COURT: All right.

MS. CLARK: With respect to--there's one other thing, your Honor. They showed stills of the glove demonstration with Mr. Simpson, a number of them with him trying on the gloves in front of the jury, but there's a number of them which is in effect using a video clip. Now, if they want to use that and if the court wants to permit them to use that, then we would ask the court in fairness to allow us to play the whole tape rather than just those segments being shown by the Defense.

THE COURT: Okay. All right. Mr. Blasier, you handling this matter?

MR. BLASIER: I am, your Honor. Let me--

THE COURT: Good afternoon.

MR. BLASIER: Good afternoon. With respect to the--I guess it's a prophylactic instruction that they want in case we do something wrong, then this is what our punishment is going to be. I've never heard of anything like that. We know what the rules are. We know what we can say, can't say, and I am sure if we say something we're not supposed to say, they'll jump up, you know, holler at us and whatever will happen will happen. I think it's absolutely ludicrous for us to sit here and debate whether we might do something wrong or if we do, what should happen about it. I think that's a foolish motion quite frankly. As to the charts, the burden of proof chart, I've probably used that chart in every trial I've done in the last five years. It's never been excluded. I've never been told by a court I can't tell the jury what I think reasonable doubt is. They were allowed to tell the jury what they think reasonable doubt is. That's part of argument. That's what argument is for.

The court reads the instruction. Those are the words in the instruction. We're entitled to say this is how we think you should interpret that. There's nothing on there about percentages. I guess they went so far as to count up the little boxes and add them altogether and divide them up and say we are going to make some argument that 93 percent or seven percent I guess is reasonable doubt. That's foolish. We're not going to offer any kind of a statement like that. The freeman case talks about the court's instruction. For the last five years, I've also asked the court to give my own instructions on reasonable doubt and I never get those. They always give 2.90. But I've never been precluded from saying this is what we think reasonable doubt is. They're going to have another shot at the jury. They can get up and say that's a lot of hooey. You shouldn't look at it that way, you should look at it this way. So I would--I think there's nothing wrong with that chart. As to video clips, if they want us to show the whole thing, we'll be happy to, of the glove demo.

THE COURT: All right. When we're talking about the glove demo, both sides want to use that?

MS. CLARK: No, your Honor. It's not a matter that we want to use it. It's a matter that I don't think it should be allowed for either side. And what I was saying is that, you know, they have some stills they want to show which are, of course, you know, just the parts that are most favorable to them. But I think it would be inappropriate to use them. We could have used it in our opening argument. That was the plan that we had until it was ruled that we couldn't. But the problem with the glove demonstration was that it's an act of mobile thing. To take still shots from that is very misleading to the jury and it has penalized the People because we couldn't--we felt we couldn't use it.

THE COURT: Well, my recollection is that the Prosecution argued against the use of videotape because it's not the official record.

MS. CLARK: That's right. That's right. Our position hasn't changed, your Honor. I think the court's ruling was also that we could only--at the point that the court was saying we could use videotape, the court was saying that it could only be taken of the witness in the blue chair, and this doesn't qualify.

MR. BLASIER: This is not a tape of testimony. This is a picture of the demonstrative demonstration that was done, and we only had two stills by the way.

THE COURT: When do you anticipate getting to that?

MR. BLASIER: May I have a minute?

MR. DOUGLAS: Hour and a half.

MR. BLASIER: Hour and a half.

THE COURT: All right. Let me see it. Let me see the excerpt that you propose to use or the stills--I'm sorry--that you propose to use.

MR. BLASIER: The stills?

THE COURT: Yeah.

(Brief pause.)

MR. BLASIER: That's it.

THE COURT: All right.

MR. BLASIER: Submit it.

THE COURT: All right. Submit it?

MS. CLARK: With respect to the glove photos? The only point I wanted to add, your Honor, other than the fact that we would have used this ourselves in opening argument, is that if--these photographs are misleading because they only show a portion of it. But in order to show all--I mean, either the clip should be shown or none of it should be shown, and I think that none of it should be shown. Counsel can argue it as we argued it, but I don't think this is appropriate and certainly not the stills that they're using.

THE COURT: All right. Thank you, counsel. All right. As far as the Prosecution motion for preemptive instruction, admonition or warning to the Defense regarding Detective Fuhrman and regarding the McKinny tapes, the court finds that to be premature. I trust that counsel know what the law is regarding appropriate argument by counsel. The evidence code is clear that counsel may not argue or mention the invocation and I'm sure Defense counsel know that the sanction will be swift and severe, and I don't think it's necessary for the court to take any action at this time. As far as the chart regarding burden of proof, reasonable doubt, that is a very familiar chart to the court. I've seen it before. I'm sure I'll see it again. The objection to that is overruled. The objection to the clips of the glove demo is sustained. It is not part of the official record. All right. Anything else? Are we ready? All right. Deputy Trower, let's have the jurors, please.

MS. CLARK: Judge, what's our break schedule?

THE COURT: 3:15. 3:15, and we are going to quit at 7:45 tonight.

MS. CLARK: Then 5:00 to 6:00 dinner break?

THE COURT: 5:00 to 6:00, breaking at 7:45.

MS. CLARK: Okay.

MR. COCHRAN: May we approach one second, your Honor?

THE COURT: Sure. Miss Clark.

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

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

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

THE JURY: Good afternoon.

THE COURT: As I mentioned to you, we had some preliminary matters we had to take up out of your presence. We're now ready to proceed with the Defense argument. Mr. Cochran.

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

THE COURT: You may proceed.

(Closing argument by Mr. Cochran)

MR. COCHRAN: Judge Ito, my colleagues on the Defense, my colleagues on the Prosecution, the Goldman family, the Brown family and to the Simpson family. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

MR. COCHRAN: The Defendant, Mr. Orenthal James Simpson, is now afforded an opportunity to argue the case, if you will, but I'm not going to argue with you, ladies and gentlemen. What I'm going to do is to try and discuss the reasonable inferences which I feel can be drawn from this evidence. At the outset, let me join with the others in thanking you for the service that you've rendered. You are truly a marvelous jury, the longest serving jury in Los Angeles County, perhaps the most patient and healthy jury we've ever seen. I hope that your health and your good health continues. We met approximately one year and one day ago on September 26th, 1994. I guess we've been together longer than some relationships as it were. But we've had a unique relationship in this matter in that you've been the judges of the facts. We have been advocates on both sides. The judge has been the judge of the law. We all understand our various roles in this endeavor that I'm going to call a journey toward justice. That's what we're going to be talking about this afternoon as I see to address you. The final test of your service as jurors will not lie in the fact that you've stayed here more than a year, but will lie in the quality of the verdict that you render and whether or not that verdict speaks justice as we move towards justice. Now, you'll recall during a process called voir dire examination, each of you were thoroughly questioned by the lawyers. You probably thought, gee, I wish they'd leave me alone. But you understood I'm sure that this is very serious business. Our client, Mr. Orenthal James Simpson, is on trial for his life, and so we had to be very, very careful, both sides, in trying to get people who could be fair to both sides. You'll recall those questions, that you keep an open mind, which I hope you still have even to this day, that you wouldn't be swayed by sympathy for or passion against either side in this case, that you would give both sides of this lawsuit the benefit of your individual opinion. No one, no one can tell you what the facts are. That's going to be your job to determine. It's not a question of age or experience. We talked about that. This is one of those jobs where you kind of learn on the job, and so it's important that you fully understand that and that's why voir dire was so very important as we asked you all of those questions before you were sequestered, before you were actually picked. Now, each of you filled out the questionnaire and you answered the questions honestly I'm sure. You know, Sister Rose said a long time ago, "He who violates his oath profanes the divinity of faith himself." And, of course, both sides of this lawsuit have faith that you'll live up to your promises and I'm sure you'll do that. You know, Abraham Lincoln said that jury service is the highest act of citizenship. So if it's any consolation to you, you've been involved in that very highest act of citizenship. And so again, we applaud you and we thank you as we move toward justice. One other entity or group of ladies or two ladies that I should thank are our marvelous court reporters. They have been patient with us. They've been here from the very beginning. We very much appreciate them in their service and I especially appreciate them because sometimes I speak rather rapidly and they have a tough time keeping up with me. So I trust that today, if I start to speak too fast in my zeal, Miss Moxham and Chris will bring that to my attention. I'm sure they will. Now, in the course of this process where we're discussing the reasonable inferences of the evidence, I ask you to remember that we're all advocates. We're all officers of this court. I will recall the evidence and speak about the evidence. Should I misstate that evidence, please don't hold that against Mr. Simpson. I will never intentionally to that. In fact, I think you'll find that during my presentation, unlike my learned colleagues on the other side, I'm going to read you testimony of what the witnesses actually said so there will be no misunderstanding about what was said about certain key things. But remember that we are all advocates. And I think it was Miss Clark who said saying it so doesn't make it so. I think that applies very much to their argument. Ultimately, it's what you determine to be the facts is what's going to be important, and all of us can live with that. You are empowered to do justice. You are empowered to ensure that this great system of ours works. Listen for a moment, will you, please. One of my favorite people in history is the great Frederick Douglas. He said shortly after the slaves were freed, quote, "In a composite nation like ours as before the law, there should be no rich, no poor, no high, no low, no white, no black, but common country, common citizenship, equal rights and a common destiny." This marvelous statement was made more than 100 years ago. It's an ideal worth striving for and one that we still strive for. We haven't reached this goal yet, but certainly in this great country of ours, we're trying. With a jury such as this, we hope we can do that in this particular case. Now, in this case, you're aware that we represent Mr. Orenthal James Simpson. The Prosecution never calls him Mr. Orenthal James Simpson. They call him Defendant. I want to tell you right at the outset that Orenthal James Simpson, like all defendants, is presumed to be innocent. He's entitled to the same dignity and respect as all the rest of us. As he sits over there now, he's cloaked in a presumption of innocence. You will determine the facts of whether or not he's set free to walk out those doors or whether he spends the rest of his life in prison. But he's Orenthal James Simpson. He's not just the Defendant, and we on the Defense are proud, consider it a privilege to have been part of representing him in this exercise and this journey towards justice, make no mistake about it.

Finally, I apologize to you for the length that this journey has taken. But, you know, when you're seeking justice, there are no shortcuts. If you were to trade places with either side, you'd want someone to fight hard for you and vigorously, especially if it was a person who maintained their innocence from the very beginning of the proceedings. Some of you in voir dire talked about that. You've been involved in other cases where you felt the lawyers didn't stand up. Well, I certainly hope that in this case, on both sides, you felt the lawyers did their best to represent their respective positions. And we will continue I'm sure to do that so that although I apologize for the length of the trial, I hope and I trust that you will understand that in a journey towards justice, there is no shortcut. Finally, with regard to your responsibilities, we asked you at the very beginning to don't compromise. This is not a case for the timid or the weak of heart. This is not a case for the naive. This is a case for courageous citizens who believe in the constitution. And while I'm talking about the constitution, think with me for a moment how many times you heard my learned adversary say the Defense didn't prove, the Defense didn't do this, Defense didn't do that. Remember back in voir dire? What did the judge tell us? Judge Ito said the Defense could sit here and do absolutely nothing. One of you is from Missouri, and he reminded you--who's from Missouri here--saying to the Prosecution, you show us. Now, we didn't do that, but we don't have an obligation as you see--you heard from the jury instruction. And at the end, I will show you some others. We don't have to do anything. We don't have to prove anything. This is the Prosecution's burden, and we can't let them turn the constitution on its head. We can't let them get away from their burden. It's my job--one of my jobs is to remind you of that and to remind them of that. But that's their burden. They must prove Mr. Simpson guilty beyond a reasonable doubt and to a moral certainty, and we will talk about what a reasonable doubt means. And so now that we have this opportunity to analyze the facts of the case, I agree with one thing that Mr. Darden said. To this task, I ask you to bring your common sense. Collectively, the 14 of you have more than 500 years of experience. I know you're all young, but add that by 14--you won't hold that against me I don't think--500 years of experience. You didn't leave your common sense out in that hallway when you came in here. We're going to ask you to apply it to the facts of this case. I'd like to comment and to compliment Miss Clark and Mr. Darden on what I thought were fine arguments yesterday. I don't agree with much of what they said, but I listened intently, as I hope you'll do with me. And together, hopefully these discussions are going to be helpful to you in trying to arrive at a decision in this case where you don't compromise, where you don't do violence to your conscious, but you do the right thing. And you are the ones who are empowered to determine what is the right thing. Let me ask each of you a question. Have you ever in your life been falsely accused of something? Have you ever been falsely accused? Ever had to sit there and take it and watch the proceedings and wait and wait and wait, all the while knowing that you didn't do it? All you could do during such a process is to really maintain your dignity; isn't that correct? Knowing that you were innocent, but maintaining your dignity and remembering always that all you're left with after a crisis is your conduct during. So that's another reason why we are proud to represent this man who's maintained his innocence and who has conducted himself with dignity throughout these proceedings. Now, last night, as I thought about the arguments of my colleagues, two words came to mind. And I want to--I asked my wife this morning to get the dictionary out and look up two words. The two words were "Speculative" and "Cynical." Let me see if I can get those words that she got for me.

(Brief pause.)

MR. COCHRAN: I asked her--I was thinking about this case--to go to Webster's. And I want you to tell me what does it mean to speculate, what does it mean to be cynical, as I thought about my colleagues' arguments and their approach to this case and their view of this case. "Cynical" is described as contemptuously distrustful of human nature and motives, gloomy distrustful view of life. And to speculate--to speculate, to engage in conjecture and to surmise or--is to take to be the truth on the basis of insufficient evidence. I mention those two definitions to you because I felt that much of what we heard yesterday and again this morning was mere speculation. Understand this, ladies and gentlemen; that none of us in this courtroom were out at 875 Bundy on June 12th, 1994 after 10:30 or 10:45 in the evening, so that everything we say to you is our best effort to piece together what took place in this case. When people theorize about things that may have been and talk to you about short fuses, you're going to see it's just that. It's speculation. People see things that are totally cynical. Maybe that's their view of the world. Not everybody shares that view. Now, in this case--and this is a homicide case and a very, very, very serious case. And of course, it's important for us to understand that. It is a sad fact that in American society, a large number of people are murdered each year. Violence unfortunately has become a way of life in America. And so when this sort of tragedy does in fact happen, it becomes the business of the police to step up and step in and to take charge of the matter. A good efficient, competent, noncorrupt police department will carefully set about the business of investigating homicides. They won't rush to judgment. They won't be bound by an obsession to win at all costs. They will set about trying to apprehend the killer or killers and trying to protect the innocent from suspicion.

In this case, the victims' families had an absolute right to demand exactly just that in this case. But it was clear unfortunately that in this case, there was another agenda. From the very first orders issued by the LAPD so-called brass, they were more concerned with their own images, the publicity that might be generated from this case than they were in doing professional police work. That's why this case has become such a hallmark and that's why Mr. Simpson is the one on trial. But your verdict in this case will go far beyond the walls of Department 103 because your verdict talks about justice in America and it talks about the police and whether they're above the law and it looks at the police perhaps as though they haven't been looked at very recently. Remember, I told you this is not for the naive, the faint of heart or the timid. So it seems to us that the evidence shows that professional police work took a backseat right at the beginning. Untrained officers trampled--remember, I used the word in opening statement--they traipsed through the evidence. And it was interesting because the Prosecution didn't agree with that at the beginning, but later on in this trial, we heard Mr. Goldberg, talking to witnesses, use my words, "Traipsing" through the witness scene, that scene there at Bundy. He used our words because they understood. We knew what we were talking about. We were able to demonstrate it through the videos. They delayed unconscionably routine procedures in notifying the Coroners. They didn't call the criminalist out on time and yes, they allowed this investigation to be infected by a dishonest and corrupt detective. They did that in this case. And they may try to back away from it all they want, but that's very important, as you're going to see, to this case and the resolution of my client's innocence. Because of their bungling, they ignored the obvious clues. They didn't pick up paper at the scene with prints on it. Because of their vanity, they very soon pretended to solve this crime and we think implicated an innocent man, and they never, they never ever looked for anyone else. We think if they had done their job as we have done, Mr. Simpson would have been eliminated early on. And so this case is not--let me say it at the outset--is not about attacking the Los Angeles Police Department. We're not anti-police in making these statements. You're not anti-police. We all need the police. I just said we have so much crime in this country, we need the police.

But what we need and what we must demand, what all of us should have are honest, effective, nonbiased police officers. Who could demand less? Any of you say that's not what we should have? And so let me tell you about how we're going to proceed here this afternoon. The Defense has one opportunity basically to address you. This is after the Prosecutors are finished. I will address you first, and after I'm concluded--and I will talk generally about the lay witnesses and overview of the evidence and what you've heard. I will try not to bore you. I'll strive to be honest in my discussions, to be relevant, to be concise of what we talk about here. When I'm finished, Mr. Barry Scheck will come before you and address some of the forensic issues. And then finally, after Mr. Scheck finishes, I'll come back and conclude some concluding remarks regarding what you've heard over the course of the last two days at any rate. Now, you understand that because the Prosecution bears the burden in this case and in all cases, Miss Clark will argue last to seek to rebut that which we bring up. Presumably, she won't be back up here talking about all kinds of new things, but seek to rebut that which is being argued.

And let me tell you up front, if she brings up anything, we may be precluded from standing up saying, "Wait a minute, your Honor. Here's the answer to that." But you can then substitute your common sense, your judgment in that place, and that's required in this journey toward justice. Now, at the outset, let's talk about this time line for the Defense. I said earlier that Mr. Darden did a good job in his argument, but one thing he tended to trip over and stumble over was when he started to talk about our case. He doesn't know our case like we know our case. It was interesting, wasn't it, because first he stood up and started talking about the time line being at 10:15. Then he said, well, they didn't prove anything, but, "Golly, well, it may have been as late as 10:30." That's interesting, isn't it? Never heard that before. You look back and see what Miss Clark promised you a year ago. 10:15. 10:15 was all they talked about, and they were going to use, because of the incompetence of this investigation, the wail of a dog. So that's what we've been relegated to in this case because of this very, very important investigation.

But having said the Defense doesn't have to prove anything in this case, we did in fact. So Mr. Darden can talk all he wanted to about his theories about motive. They're just that, his speculative theories about motive. But when it came down to the end, he wasn't talking about motive, was he? He was trying to talk about our time line. Why would he do that? Let's talk about why he would. Because the Defense in this case called many witnesses who corroborated each other and who shattered the Prosecution's time line. Now, these are witnesses to a person who were known by the Prosecution, but discarded by the Prosecution. Why? Because they didn't fit their tortured, narrow window of opportunity. So when you invisualize for me that jig-saw puzzle where they want to reduce this case down to a jig-saw puzzle, the part that deals with opportunity is the time line. And we're going to start off with that because in a search for truth, let's look for the truth. Not some contorted, twisted truth, but the real truth, the facts that you heard during the course of this particular case. We think after you look at this time line for the Defense, you will agree with our earlier analysis. This is a case about a rush to judgment, a case where there's been obsession to win at all costs, and in the words of Dr. Henry Lee, something is wrong with the Prosecution's case. Let's start off with Francesca Harmon. Francesca Harmon is a lady who left the dinner party on Dorothy at about 10:20 P.M. she drove west on Dorothy and Bundy and turned north on Bundy. So she would be heading north toward 875. She saw nothing, heard nothing, no barking dogs, lady known, of course, to both sides. And so you see this graphic regarding Francesca Harmon. And I think to familiarize you with that, I think at 10:20, as I understand it, that's the approximate time that she would pass by or near Nicole Brown Simpson's home there. You see it with the "X" marked there in this photographic. That's Miss Harmon. We followed Francesca Harmon with Ellen Aaronson and Dan Mandel, remember, the two people who had been on their first date. They had gone to Mezzaluna. And they were interesting young people. I think you would find them credible. By the way, you hold all witnesses up to the same standard. No side has a priority on the truth. These are witnesses known to both sides. We're the ones, however, who elected to call them and bring them here for you.

You know, how they walked home from this first date at Mezzaluna, walking directly by the walkway at 875 south Bundy, and they said they passed by there. Remember, they were clear, they passed by there at 10:25. And you'll see the little kind of purple lines shows you the route they took. So they passed right in front of Miss Nicole Brown Simpson's home at 10:25. And you remember, they continued on. So they were over on Darlington Street by 10:29. She said that it took them about four minutes from the time they passed 875 south Bundy to get home that evening. This was their first date and I guess, as I recall, this was also their last date. They saw no blood, they saw no barking dogs. I submit to you, if the bodies had been there, they could have been seen. Now, why do I say that? I say that because we have a contact print in evidence--and I'm going to ask Mr. Harris, if he can, to show us this contact print. This is an item you will be able to take back in the jury room. This is a photograph taken by Mr. Rokahr at night and it will let you see, when Mr. Harris gets it into focus, that scene that particular night, what you could see with regard to this body. Your Honor, you may want to cut the feed on part of this. 33, Howard.

(Brief pause.)

MR. COCHRAN: Now--and this exhibit is what number, Mr.--do you have it? I believe it may be 86. I'll get it for you as soon as he takes it off, your Honor. Now, this exhibit--and we'll try to give them to your Honor when we first get them up there.

THE COURT: Thank you.

MR. COCHRAN: This exhibit no. 86 was a photograph that we got late in the trial from Mr. Rokahr, the photographer, who was called by us. You see that document over there? That's a contact sheet. Remember, we talked about all of these photographs in sequence, and this first roll were taken at night. This is going to be a very, very important role for you as this case progresses. This is a photograph at night of what you could see from across the street. And there were lights in and around there. And so when Mr. Darden stands up here as an advocate and tells you it was pitch black and you couldn't see anything, this is the photograph that was taken before the sun came up. This photograph was taken at night. It's not pitch black.

We know also that, according to the evidence, blood had flowed down that walkway. There were bloody paw prints that went southbound on Bundy there. So you see that photograph. You see that photograph. Now, you can be an advocate. We're all sworn to do the right thing. We talked about his oath. Your oath is also to tell the truth. It's not pitch black. We have the evidence. And I am going to try to do that throughout where they have misled you and have said things not correct. I'm going to try and straighten it out for you. Mr. Harris, why don't you tell the court now what that number is.

MR. HARRIS: 1369.

MR. COCHRAN: No. 1369. And that's Rokahr. We're going to come back to some other photographs on that, but you'll recall his testimony. And the reason why 1369 is so important is because it is undisputed that at 10:25, Mandel and Aaronson walked passed there. If there was blood down on that sidewalk, if there had been--a killing had taken place, if there were dogs barking or wailing, don't you think given that, that had you been out there, you'd see it?

So the time has come now to stop all this folly and fantasy. Let's deal in reality and in the facts of what took place and what you can see with your own eyes. I don't want you to speculate or theorize. When I sit down, I want you to understand what the facts are of this case. Mr. Harris, you can take that down. After that, we had Denise Pilnak and Judy Telander. You know, and I think, again, as advocates, we have a responsibility to treat all of these witnesses with respect. These people didn't ask to come down here. These people don't ask to be maligned. I don't think anybody really wants that with the exception of one or two, and most of them were called by the Prosecution. So when Denise Pilnak, the lady who wore two watches, comes in here and tells you--I ask you to judge her credibility like you do all the witnesses the court has instructed you. You hold all witn