Department no. 103 hon. Lance A. Ito, judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Kardashian, Mr. Blasier, Mr. Neufeld, Mr. Scheck and Mr. Cochran. The people are represented by Miss Clark and Mr. Darden. We are in argument. Let's have it quiet in the courtroom, please. All right. Deputy Trower, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. 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: We are in the midst of the final arguments. Mr. Cochran, you may continue with your argument, sir.
MR. COCHRAN: Thank you very kindly, your Honor. Good morning, judge Ito. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
CLOSING ARGUMENT (RESUMED) BY MR. COCHRAN:
When we concluded last night, ladies and gentlemen, we had discussed a number of things, and I'm sure you have them very much in mind. To summarize some of the things that we talked about and put it in perspective, we talked about a police department who from the very beginning was more interested in themselves and their image, and that carried through. We talked about socks that appeared all of a sudden that weren't there, socks where evidence was planted on them. We talked about police officers who lie with immunity, where the oath doesn't mean anything to them. We talked about messengers where you couldn't trust the message. We talked about gloves that didn't fit, a knit cap that wouldn't make any difference, a prosecution scenario that is unbelievable and unreasonable. In short, we talked about reasonable doubt. We talked about something that has made this country great, that you can be accused in this country for crime, but that is just an accusation, and when you enter a not guilty plea, since the beginning of the time of this country, since the time of the Magna Carta, that sets the forces in motion and you have a trial. This is what this is about. That is why we love what we do, an opportunity to come before people from the community, the consciences of the community. You are the consciences of the community. You set the standards. You tell us what is right and wrong. You set the standards. You use your common sense to do that. Your verdict goes far beyond these doors of this courtroom. As Mr. Darden said, the whole world is watching and waiting for your decision in this case. That is not to put any pressure on you, just to tell you what is really happening out there. So we talked about all of those things, hopefully in a logical way. Hopefully something I said made some sense to you. Hopefully as a advocate, you know my zeal, you know the passion I feel for this. We've all got time invested in this case. But it is not just about winning, it is about what is right. It is about a man's life that is at stake here. So in voir dire you promised to take the time that was necessary, and you have more than done that. Remember I asked you, though, that when you got down to the end of the case, when you kept all your promises about coming here everyday and taking these notes and paying attention, and you know, listening to us drone on and on and on, that pretty soon it would be in your hands and then you couldn't just rush through that, could you? And we tried to make it a little more simple with regard to the issues, but still we are going to have twelve minds coming together, twelve open minds, twelve unbiased minds to come together on these issues. And you will give it, I'm sure, the importance to which it is entitled. Please don't compromise your principles or your consciences in rendering this decision. Don't rush to judgment. Don't compound what they've already done in this case. Don't rush to judgment. Have a judgment that is well thought out, one that you can believe in the morning after this verdict. I want you to place yourself the day after you render the verdict, when you get up and you look in the mirror and you are free, you are no longer sequestered, you will probably look for each other but you will be happy to be home again. But what is important, look in that mirror and say, have I been true to my oath? Did I do the right thing? Was I naive? Was I timid? Or was I courageous? Did I believe in the constitution. Did I believe in justice? Did I do my part for integrity and honesty? That is the mission you are on in this journey toward justice. And now yesterday I touched briefly on some of Mr. Darden's argument and we talked a little bit about the fact of his contention about motive. We talked about his analogy about a fuse. And I referred to him as dr. Darden with regard to what he had to say, and I thought I would just summarize briefly this morning the response to what he had to say and what he tried to weave together. As I said, he talked about an incident in 1985, an unfortunate incident between two people who were married. There was no arrest, there was no physical violence. The one incident in `89, the one he is not proud of, the one he wrote those letters about, the one he apologized for and said he was sorry, and there is no physical violence after that. In the 1993 call, the 911 call, you listen to that entire tape when they cut it off and you will remember that it is unfortunate when anyone has an argument, but you listen carefully to what Mr. Simpson is arguing about, what he is talking about and what the discussion is about. Mrs. Simpson mentions the children and he says, "You weren't worried about the children when you were doing so and so on the couch." He is pretty graphic, but any man or woman would be upset over what he is talking about on that tape. There was no physical violence. There is no excuse for him kicking the back door, but by the end--you remember what Kato Kaelin said and what the police officer said. They resolved this matter. It was an argument, it was loud and raucous and they moved on. There was no fuse after that. And this was during a time, you will recall, that in January of 1992, when they first agreed to separate. You don't hear anything about a dispute, but Miss Nicole Brown Simpson moved out. There was not my question about a dispute. When she got this divorce at the end of `92, there was no dispute. They were both dating other people. He is with Paula Barbieri for that like whole year and then, you know, it wasn't Mr. Simpson who pursued Mrs. Simpson; it was her who wanted to get back with those kids. You heard Arnelle Simpson and then they agreed, but he put on provisos on that. She couldn't move back in that house. She still kept her own house. Who is controlling whom? Who is pursuing whom when he talks about fuse? There is no fuse. They get back together and they tried to make it work. It lasts for almost a year.
My learned friend has the dates all wrong. It is around mother's day when they break up. You remember there is testimony from Kato Kaelin with a pediatric aids affair where Paula Barbieri goes with O.J. Simpson, early part of may, after mother's day, after they break up, with the kids Sydney and Justin. Now, we know they had been friends. Even when they broke up they were friends. You know how you know that? Remember the barber, Juanita Moore, nice lady who came in here and talked about O.J. Simpson not having dandruff, not having treated hair? And she said she came to the house the first part of may and there was Nicole there over at O.J.'s house. There is no fuse. Then they go on later that month. They break up. Even after being broken up, what does Arnelle tell you? That when Nicole gets sick, none of these other people who she may be seeing or whatever, it is O.J. taking her soup trying to help out. Now, you do that for your ex-wife or your ex-boyfriend or whatever. There is no fuse. There is no strings attached to that. He goes on with his life because now he is back with Paula. He had been with her the year before. And Miss Clark tried to get Kato Kaelin to ask, didn't he take Paula someplace in the summer of `93 when she knew they were now back together? And Kato says no, I don't think so, because they made this arrangement to date each other exclusively, and that is what happened, you see, and so we get all the way back past may into June and there is no trigger, there is no fuse, there is nothing going on. The only fuse, the only trigger is in Mr. Darden's mind. The evidence isn't there. And they spent all this time about motive. There is none. These were two people who divorced. The case was settled. They had their homes. They moved on. Christian Reichardt tells you that night he is happier than he had been for a long time because he had gotten his life together and moved on. And so I just wanted you to put that in perspective. If that wasn't enough, you look at that video of June 12th and the photograph of him with his daughter and you see whether or not this is a happy man just getting on with his life. So when he rhetorically asked the question why didn't we call Lenore Walker, I say back to him, why didn't you call Lenore Walker if she had something bad to say about O.J. Simpson? It wasn't necessary. It wasn't necessary. It wasn't necessary. As you know, we could be here forever calling one witness after the other. Sooner or later you were going to revolt and I wouldn't blame you. Mr. Darden agrees, we had to cut it off at some point. So I hope that when you look about this so-called board of abuse and they have things about a divorce, you put this in perspective. Absence of motive tends to establish innocence. That is what the jury instruction says. Evidence of other offenses are introduced for a very limited portion in this case. The bottom line is the positive things in this man's life, the good days far outweigh the bad things. And in your life, in all of our lives we just hope at the end, when we must ultimately meet our makers, that the good days have outweighed the bad days, and in this marriage the lasting monuments and memorial to this marriage are these two beautiful children. They had more good days than bad days by all of the evidence. These two people loved their children. They may have gone separate ways, but they loved their children. That is why he was back in town, to go to that recital, that recital where there is so many people, where it is in this auditorium where Nicole Brown Simpson gets his tickets. You know, that is why they are talking in the afternoon, to make arrangements, and she is the one who holds a seat for him. This is what happened on that date. This isn't about any argument. This is a family thing. So Mr. Darden wants to make a big thing and says, well, he had to go out to dinner with Kato, he had to catch a plane. See the evidence for what it is. Understand these things. Put them in perspective. And so you use your common sense. There is no fuse with regard to that. It is important for you to know that. Take a look at that video when you are back there. Take a look at all of the evidence. In this case Miss Clark in her argument on several occasions said that Mr. Simpson was cut on his razor sharp cell phone. Well, that is not what the evidence is, is it? That is not what was said. I read you what dr. Baden said about that and so we can use these words, but let's hopefully be accurate as we try to say those things.
Now, let's go back to where we were when we broke last night. We had started talking about the messengers in this case. We talked briefly about Vannatter and about all of his big lies. Lies become very important because he is the co-lead investigator in this case. From the very beginning he was lying to you. And it was interesting--and I thought about this last night after I left you. Just about ten days ago, a week or ten days ago, Vannatter took that stand again, and you saw him, you had a chance to again observe his demeanor, and you are smart, you know when somebody is lying and not telling you the truth. I don't have to go into that. You don't need the jury instruction. You have got this visceral experience and you have got your experiences in life and you know when somebody is lying. And he said something really interesting. It was really preposterous when you think about it. He said, "Mr. Shapiro, Mr. O.J. Simpson was no more a suspect than you were." Now, who in here believed that? Did he really think he was going to come back in here and we were going to believe that that O.J. Simpson was no more a suspect than Robert Shapiro? That is what he told you. Big lies. You can't trust him. You can't believe anything he says because it goes to the core of this case. When you are lying at the beginning, you will be lying at the end. The book of Luke talks about that. Talks about if you are untruthful in small things, you should be disbelieved in big things. There is no question about that. We have known that all along. So this man with his big lies--and then we have Fuhrman coming right on the heels and the two of them need to be paired together because they are twins of deception. Fuhrman and Vannatter, twins of deception who bring you a message that you cannot trust, that you cannot trust. Let's continue on where we left off then with this man Fuhrman who says some very interesting things in the course of his testimony, and as we talked about Vannatter's big lies, we have Fuhrman's big lies. Vannatter, the man who carried the blood; Fuhrman, the man who found the glove. You will recall that he was asked, as I read to you yesterday briefly, the question well-phrased by lee bailey, "Have you ever used this `n' word in ten years?" Went right back to `85. And he picked that `85 date. You know why? Because of the Kathleen Bell letter. Just like they knew about it, picked that date, so he knew he was lying. Honed in on it. Liars can be tricky. And so he was at that point trying to pin it down for you, ten years, `85 to `95. This was like in February of this year. He says also he never met Kathleen Bell at this marine center. He tells you that Rokahr, the photographer, took this photograph after seven o'clock in the morning. Remember that? Go back through your notes. And the reason he tells you that is because he wants that photograph of him pointing at the glove taken after he supposedly finds the glove at Rockingham. Now, you may not have caught that right at the beginning when this was happening. He says he took the photograph at Rockingham after seven o'clock A.M., after they returned from Rockingham. You know they all go over to Bundy after five o'clock. Strike that. At Bundy. They all go over to Rockingham at five o'clock, from 5:00 to 7:00, and so it becomes very, very important, as we look at this photograph in a few minutes. Rokahr then comes here near the end of the case, and there has been nobody called to refute him in rebuttal, and says these photographs on this contact sheet are all taken while it is dark. He says he could tell the difference in a photograph taken an hour and a half before sun rise, 5:41, 5:42, and an hour and a half afterwards, so then why then is this big liar in the crime scene with access to the glove and the hat? Why is he down there pointing at this glove where he is walking all in the blood and everything when he wants you to believe it is seven o'clock? Now, we know it is not seven o'clock. You see that photograph up there? That is Mark Fuhrman pointing. You see the envelope. Pointing under this neatly arranged cap. Glove supposedly just happened to fall right under that bush in that fashion. That is what you are asked to believe. There he is pointing at it. Well, now let me tell you why you recognize it. You recognize Fuhrman, personification of evil. When he is doing is that he is trying to tell you this is an important piece of evidence here and I just came back from Rockingham and this matches the glove found over there. That is what he tells you. But he is lying again. He is lying and that is why he is central to this case, because he hadn't even been to Rockingham at that point and he is tracking in that blood at that point and that becomes very important because you remember he slips up and says "In the Bronco" at some point. You get "In that Bronco." He put a bloody footprint in that Bronco. Are his shoes size 12? He talks about "In the Bronco." He talks about them. Remember there is a question he was asked about gloves and lee bailey asked him about. Well--he says, well--he is talking about gloves and he says, "Them." He never explained that. He says "Them." Does that mean two gloves? He said, "I saw them." Is that two gloves? Why would you say "Them"? He is intelligent enough to come and lie to you. So that picture, that photograph there, that seals their doom. That seals their doom. This man who in `85 in his mind started this, this man who is asked to go over and help O.J. Simpson and notify him and take care of the kids, this man, this perjurer, this racist, this genocidal racist, this is the man. And he says then inferentially he didn't plant the glove and now we know about these photographs, when they were taken, and you will have that contact sheet and you will see a photograph of Miss Nicole Brown Simpson and the last two on the roll taken at nighttime with the flash at 4:30 or so in the morning. Why else is this important? Because they are going to tell you, well, he didn't have an opportunity to get the glove or get access to anything. Remember they brought all these police officers in here, including Lieutenant Spangler, to say, well, you know, we were just watching Fuhrman the whole time. First of all, you knew that was a lie at the beginning. Why would they necessarily be watching him. They were always covering for him anyway. But we know that wasn't true because remember Rokahr got there shortly after three o'clock. Rokahr goes to that back alley and he sees Riske who is back there then. Remember Rokahr sees Riske in the back alley. Rokahr doesn't even see Fuhrman for like a half hour after he gets there, he says, and all of a sudden Fuhrman shows up. Where has he been? What has he been doing? And then Riske is out in the front of Bundy there and Riske testifies about the taking of this photograph. He wants to place the time later, but he said it is before the sun comes up, before daylight. That has to be because we've stipulated to it before 5:41. So inadvertently he corroborates Rokahr, but Rokahr knows because he took these photographs. Why then, ladies and gentlemen, is he pointing at this glove when he hasn't even been over there? Why then would they try to tell you he doesn't have time at Bundy when he is by himself for this period of time? He is not with Spangler; he is walking around by him. Why then is he walking in that crime scene and why does he lie to you and said he didn't have access to the crime scene? These are the facts. These are the facts. I haven't made them up. This is what you heard in this case. This is what we have proved. Some of it came in late; some of it came in early, but our job here is to piece this together so that you can then see this, so when he refers to the gloves as "Them," that has never been cleared up for you and he can't. That is a Freudian slip when he talks about "In the Bronco." And there was a dispute. Well, did he really say that? Remember the tape was played at the preliminary hearing and his voice was heard saying "In the Bronco." You can see all these things. He is strolling down to Rockingham, the big man, figuring a way to do this, to carry out this plan, this spot he has in his mind since 1985, to make the big score, and so Rokahr severely impeaches Fuhrman about these photographs, and once again, these photographs speak a thousand words. Concluding about Riske, he said on cross-examination that the photograph pointing at the glove was taken at least forty minutes before daylight, the sun rose at 5:41, maybe a little bit late, but it was before daylight and so we know that. That is now clear. Why did they then all try to cover for this man Fuhrman? Why would this man who is not only Los Angeles' worst nightmare, but America's worse nightmare, why would they all turn their heads and try to cover for them? Why would you do that if you are sworn to uphold the law? There is something about corruption. There is something about a rotten apple that will ultimately infect the entire barrel, because if the others don't have the courage that we have asked you to have in this case, people sit sadly by. We live in a society where many people are apathetic, they don't want to get involved, and that is why all of us, to a person, in this courtroom, have thanked you from the bottom of our hearts. Because you know what? You haven't been apathetic. You are the ones who made a commitment, a commitment toward justice, and it is a painful commitment, but you've got to see it through. Your commitment, your courage, is much greater than these police officers. This man could have been off the force long ago if they had done their job, but they didn't do their job. People looked the other way. People didn't have the courage. One of the things that has made this country so great is people's willingness to stand up and say that is wrong. I'm not going to be part of it. I'm not going to be part of the cover-up. That is what I'm asking you to do. Stop this cover-up. Stop this cover-up. If you don't stop it, then who? Do you think the police department is going to stop it? Do you think the D.A.'s office is going to stop it? Do you think we can stop it by ourselves? It has to be stopped by you. And you know, they talked about Fuhrman, they talked about him in derisive tones now, and that is very fashionable now, isn't it? Everybody wants to beat up on Fuhrman, the favored whipping boy in America. I told you I don't take any delight in that because you know before this trial started, if you grow up in this country, you know there are Fuhrmans out there. You learn early on in your life that you are not going to be naive, that you love your country, but you know it is not perfect, so you understand that, so it is no surprise to me, but I don't take any pride in it. But for some of you, you are finding out the other side of life. You are finding out--that is why this case is so instructive. You are finding out about the other side of life, but things aren't always as they seem. It is not just rhetoric, it is the actions of people, it is the lack of courage and it is a lack of integrity at high places. That is what we are talking about here. Credibility doesn't attach to a title or position; it attaches to the person, so the person who may have a job where he makes two dollars an hour can have more integrity than the highest person. It is something from within. It is in your heart. It is what the lord has put there. That is what we are talking about in this case. And so why don't they speak out? Why do they take him to their breast? Compare how our prosecutors treat Fuhrman as opposed to Kato Kaelin. Look at how they treated mark partridge as opposed to Kato Kaelin. Look at how they embraced him. And now they want to distance themselves. These same people say, oh, he is not important, but the Rokahr photograph puts the lie to that. He is very important. And what becomes so important when we talk about these two twin demons of evil, Vannatter and Fuhrman, is the jury instruction which you know about now and it says essentially that a witness willfully false--I think Mr. Douglas is going to put that up for us--
"A witness willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars." Why is this instruction so important? We got the bullet points up there. First of all, both prosecutors have now agreed that we have convinced them beyond a reasonable doubt, by the way, that he is a lying perjuring genocidal racist and he has testified falsely in this case on a number of scores. That is what his big lies tell you. And when you go back in the jury room, some of you may want to say, well, gee, you know, boys will be boys. This is just like police talk. This is the way they talk. That is not acceptable as the consciences of this community if you adopt that attitude. That is why we have this, because nobody has had the courage to say it is wrong. You are empowered to say we are not going to take that any more. I'm sure you will do the right thing about that. So that what then it says we must do is you have the authority, you may reject the whole testimony, you can then wipe out everything that Fuhrman told you, including the glove and all the things that he recovered with the glove. That is why they are so worried. That is why when people say Fuhrman is not central, they are wearing blinds. They have lost their objectivity. They don't understand what they are talking about. It is embarrassing for learned people to say that, but they are entitled to their opinions, but we are going to speak the truth. In a courtroom you are supposed to speak the truth. A witness who walks through those doors, who raises his or her hand, swears to tell the truth. You've heard lie after lie after lie that has been exposed and when a witness lies in a material part of his testimony, you can wipe out all of his testimony as a judge of the facts. That is your decision again. Nobody can tell you about that. Lest you feel that a greater probability of truth lies in something else, they said wipe it out. This applies not only to Fuhrman, it applies to Vannatter and then you see what trouble their case is in, because they lied to get in there to do these things when Vannatter carries that blood. They can't explain to you why he did that, because they were setting this man up, and that glove, anybody among you think that glove was just sitting there, just placed there, moist and sticky after six and a half hours? The testimony is it will be dried in three or four hours, according to MacDonell. We are not naive. You understand there is no blood on anything else. There is no blood trail. There is no hair and fiber. And you get the ridiculous explanation that Mr. Simpson was running into air conditioners on his own province.
THE BAILIFF: Excuse me, your Honor. We need to take a break.
THE COURT: All right. Anybody else?
THE COURT: All right. The record will reflect that we now have our complete jury panel. Mr. Cochran.
MR. COCHRAN: Witnesses willfully false in one material part, distrusted in others. These two form basically the cornerstone of the prosecution's case. Now, you know people talk all the time, well, you know, you are being conspiratorial and whatever. Gee, how would all these police officers set up O.J. Simpson? Why would they do that? I will answer that question for you. They believed he was guilty. They wanted to win. They didn't want to lose another big case. That is why. They believed that he was guilty. These actions rose from what their belief was, but they can't make that--the prosecutors can't make that judgment. Nobody but you can make that judgment. So when they take the law into their own hands, they become worse than the people who break the law, because they are the protectors of the law. Who then polices the police? You police the police. You police them by your verdict. You are the ones to send the message. Nobody else is going to do it in this society. They don't have the courage. Nobody has the courage. They have a bunch of people running around with no courage to do what is right, except individual citizens. You are the ones in war, you are the ones who are on the front line. These people set policies, these people talk all this stuff; you implement it. You are the people. You are what makes America so great, and don't you forget it. And so understand how this happened. It is part of a culture of getting away with things. It is part of what looking the other way. We determine the rules as we go along. Nobody is going to question us. We are the LAPD. And so you take these two twins of deception, and if as you can under this law wipe out their testimony, the prosecutors realize their case then is in serious trouble. From Riske to Bushey they came together in this case because they want to win. But it is not about them winning; it is about justice being done. They have other cases. This is this man's one life that is entrusted or will be soon, to you. So when we talked about this evidence being compromised, contaminated and corrupted, some people didn't believe that. Have we proved that? Have we proved that it was compromised, contaminated and corrupted? And yes, even something more sinister--I think you will believe we do, but there is something else about this man Fuhrman that I have to say before I am going to terminate this part of my opening argument and relinquish the floor to my learned colleague Mr. Barry Scheck, is something that Fuhrman said. And I'm going to ask Mr. Douglas and Mr. Harris to put up that Kathleen Bell letter. You know, it is one thing, and I dare say that most of you, when you heard Fuhrman said he hadn't used the "N" word, that you probably thought, well, he is lying, we know that is not true. That is just part of it. That is just want the prosecutors want to do, just talk about that part of it. That is not the part that bothers us on the defense. I live in America. I understand. I know about slights everyday of my life. But I want to tell you about what is troubling, what is frightening, what is chilling about that Kathleen Bell letter. Let's see if we can see part of it, and I think you will agree, so I want to put the focus back where it belongs on this letter and its application to this case. You will recall that god is good and he always brings you a way to see light when there is a lot of darkness around, and just through chance this lady had tried to reach Shapiro's office, couldn't reach it, and in July of 1994 she sent this fax to my office, and my good, loyal and wonderful staff got that letter to me early on. And this is one you just couldn't pass up. You get a lot of letters but you couldn't pass this one up because she says some interesting things. And she wasn't a fan of O.J. Simpson. What does she say? "I'm writing to you in regards to a story I saw on the news last night. I thought it ridiculous that the Simpson Defense team would even suggest that there might be racial motivation involved in the trial against Mr. Simpson." Yes, there are a lot of people out there who thought that at that time, and you know, you can't fault people for being naive, but once they know, if they continue to be naive, then you can fault them. That is what it is and this is why this case is important. Don't ever say again in this county or in this country that you don't know things like this exist. Don't pretend to be naive any more. Don't turn your heads. Stand up, show some integrity.
"And so I then glanced up at the television. I was quite shocked to see that officer Fuhrman was a man that I had the misfortune of meeting. You may have received the message from your answering service last night that I called to say that Mr. Fuhrman may be more of a racist than you could even imagine. I doubt that, but at any rate, it was something that got my attention. "Between 1985 and 1986 I worked as a real estate agent in Redondo Beach for Century 21 Bob Maher Realty now out of business. At the time my office was located above a marine recruiting center off of pacific coast highway. On occasion I would stop in to say hello to the two marines working there. I saw Mr. Fuhrman there a couple of times. I remember him distinctly because of his height and build, you know, he is tall.
"While speaking to the men I learned that Mr. Fuhrman was a police officer in Westwood." Isn't that interesting? Just exactly the place where Laura McKinny met him. "And I don't know if he was telling the truth but he said that he had been in a special division of the marines. I don't know how this subject was raised but officer Fuhrman says that when he sees a Nigger, as he called it, driving with a white woman, he would pull them over. I asked what if he didn't have a reason and he said that he would find one. I looked at the two marines to see if they knew he was joking, but it became obvious to me that he was very serious." Now, let me just stop at this point. Let's back it up a minute, Mr. Harris. Pull it back down, please. If he sees an African American with a white woman he would stop them. If he didn't have a reason, he would find one or make up one. This man will lie to set you up. That is what he is saying there. He would do anything to set you up because of the hatred he has in his heart. A racist is somebody who has power over you, who can do something to you. People could have views but keep them to themselves, but when they have power over you, that is when racism becomes insidious. That is what we are talking about here. He has power. A police officer in the street, a patrol officer, is the single most powerful figure in the criminal justice system. He can take your life. Unlike the supreme court, you don't have to go through all these appeals. He can do it right there and justify it. And that is why, that is why this has to be routed out in the LAPD and every place. Make up a reason because he made a judgment. That is what happened in this case. They made a judgment. Everything else after that is going to point toward O.J. Simpson. They didn't want to look at anybody else. Mr. Darden asked who did this crime? That is their job as the police. We have been hampered. They turned down our offers for help. But that is the prosecution's job. The judge says we don't have that job. The law says that. We would love to help do that. Who do you think wants to find these murderers more than Mr. Simpson? But that is not our job; it is their job. And when they don't talk to anybody else, when they rush to judgment in their obsession to win, that is why this became a problem. This man had the power to carry out his racist views and that is what is so troubling. Let's move on. Making up a reason. That is troubling. That is frightening. That is chilling. But if that wasn't enough, if that wasn't enough, the thing that really gets you is she goes on to say: "Officer Fuhrman went on to say that he would like nothing more than to see all niggers gathered together and killed. He said something about burning them or bombing them. I was too shaken to remember the exact words he used. However, I do remember that what he said was probably the most horrible thing I had ever heard someone say. What frightened me even more was that he was a police officer sworn to uphold the law." And now we have it. There was another man, not too long ago in the world, who had those same views who wanted to burn people, who had racist views and ultimately had power over people in this country.
People didn't care. People said he was just crazy, he is just a half-baked painter. They didn't do anything about it. This man, this scourge, became one of the worse people in the history of this world, Adolph Hitler, because people didn't care or didn't try to stop him. He had the power over his racism and his anti-religion. Nobody wanted to stop him, and it ended up in world war ii, the conduct of this man. And so Fuhrman, Fuhrman wants to take all black people now and burn them or bomb them. That is genocidal racism. Is that ethnic purity? What is that? What is that? We are paying this man's salary to espouse these views? Do you think he only told Kathleen Bell whom he just had met? Do you think he talked to his partners about it? Do you think commanders knew about it? Do you think everybody knew about it and turned their heads? Nobody did anything about it. Things happen for a reason in your life. Maybe this is one of the reasons we are all gathered together this day, one year and two days after we met. Maybe there is a reason for your purpose. Maybe this is why you were selected. There is something in your background, in your character that helps you understand this is wrong. Maybe you are the right people at the right time at the right place to say no more, we are not going to have this. This is wrong. What they've done to our client is wrong. This man, O.J. Simpson, is entitled to an acquittal. You cannot believe these people. You can't trust the message. You can't trust the messengers. It is frightening. It is quite, frankly frightening, and it is not enough for the Prosecutors now to stand up and say, oh, well, let's just back off. The point I was trying to make, they didn't understand that it is not just using the "N" word. Forget that. We knew he was lying about that. Forget that. It is about the lengths to which he would go to get somebody black and also white if they are associated with black. That is pretty frightening. It is not just African Americans, it is white people who would associate or deign to go out with a black man or marry one. You are free in America to love whoever you want, so it infects all of us, doesn't it, this one rotten apple, and yet they cover for him. Yet they cover for him. And so how do we do it and what do we do with regard to this man? Well, we call some witnesses. And you recall these witnesses. And before I talk about these witnesses just briefly, and I'm going to conclude my remarks with regard to them, I indicated to you that by the nature of this case I'm going to pass the baton to Mr. Barry Scheck. You have been great from the standpoint of listening and watching, and I stayed longer than I planned to, but I hope you agree that some of these things were important. And I will get one more time to conclude with some concluding remarks after Mr. Scheck finishes. The good news is that Mr. Scheck and I will both hopefully finish today and turn it back over to Miss Clark, so in a day or so you are going to get this case. You don't have to hear lawyers talk to you any more. It will time to hear you talk, time to hear you speak out. And I will be happy. I will be able to relax tonight knowing that soon it will be in your hands. We are real comfortable about that, all of us, and you should know that, so please give Mr. Scheck the attention to which you've given me. And understand all parts of this case are very important and it all ties together because it is--all the evidence in this case went through that LAPD and that black hole over there, that cesspool of contamination and you listen into him about what he has to say in that regard. Mr. Darden said that in a textbook fashion we had impeached Mr. Fuhrman. We thank him for that. We take no pride in that, but that is what did happen. In addition to calling Kathleen Bell where you saw her--and she is not the kind of lady that--you know, in looking at her--you probably remember her. Unless you know it would be very interesting--you know he is lying about not knowing her, but this man used these words and these racial epithets so much he probably can't remember who he said it to you. He said it to whoever came in contact with him, on tape. Can you imagine the gall about that that you would have these racist views and yet would you put it on tape? Thank God he put it on tape. And so Kathleen Bell came in here and told you the same things in those letters. You saw her. You observed her. You know she told us the truth. They couldn't mess with her because now we had those tapes. And then there was Natalie Singer. Barely knew this man. He was dating her roommate. This man is an indiscriminate racist. He talks so bad that she didn't want him back in the house. What does he say to her in her presence? "The only good Nigger is a dead Nigger."
You probably all heard that expression sometime in your background somewhere or heard somebody say this. And that is tremendously offensive. He just says it in the presence of his partner's girlfriend, like they are going to go on a date. I mean, I hope that in homes throughout this country people aren't acting like this. This happened to come to light, but I would be pretty frightened if I felt that the majority of people in this country acted like this behind closed doors or whatever. Because what you do in the dark is going to come to the light. Remember that. That is what this case is about. It came to the light and just in time to get it to you. So you saw her on the stand. You saw her graphically. We will talk about that. Any doubt in anybody's mind she is telling you the truth? Any one of you think she is not telling you the truth? And then finally we had Roderic Hodge, and this series of witnesses. And Roderic Hodge, intelligent young man, understands something about his rights, too, because when--after this run-in with Fuhrman and his partner when he is in the back of the police car, Fuhrman turns around and says to him words that I want you to remember in this case, "I told you I'd get you, Nigger," that is what he tells Roderic Hodge. Why is that important? Because from 1985, when he went on that one call involving the Mercedes, that was this man's mind-set vis-à-vis O.J. Simpson, I'm going to get that guy. And in `89 when he wrote that report, indelibly impressed on his mind, and in `94 he had his chance, still in west Los Angeles, he had his chance. So Hodge is important because you can espouse all these epithets and talk theoretically about your racism, but when it is directed toward a human being--and I said to him, "Mr. Hodge, tell this jury how that made you feel." He said, "It made me feel angry and upset and frustrated." It was dehumanizing in a free society. But this man, Fuhrman, does it with immunity and his partner sat there and heard it and didn't report it. There is something rotten about this kind of conduct, that it is going on too long, and so that is why he is important. But the capper was finding those tapes, something that you could hear. Lest there be any doubt in anybody's mind, Laura McKinny came in here, and I can imagine the frustration of the Prosecutors, they've had the glove demonstration, they have seen all these other things go wrong and now they got to face these tapes. And they didn't know how to handle her. Quite frankly, she was a reluctant witness. You know that. Mr. Darden asked her those questions where he became negative with her. She is very smart, not like some others who didn't know how to handle it. He says, "Why are we having this negative conversation? Why are you acting and treating me like this?" I didn't try to stop him about cover-ups and things. "Why are you asking me these questions? I am the one who is here under subpoena. Why are you treating me like this?" You know it is true because they have heard the tapes. Why are you messing with this lady? You obviously get so wrapped up with what you are doing, I guess. Why are they messing with this lady? We owe a debt of gratitude to this lady that ultimately and finally she came forward. And she tells us that this man over the time of these interviews uses the "N" word 42 times is what she says.
And so-called Fuhrman tapes. And you of course had an opportunity to listen to this man and espouse this evil, this personification of evil. And so I'm going to ask Mr. Harris to play exhibit 1368 one more time. It was a transcript. This was not on tape. The tape had been erased where he said, "We have no niggers where I grew up." These are two of 42, if you recall. Then this was his actual voice.
(At 10:00 A.M., Defense exhibit 1368, a videotape, was played.)
MR. COCHRAN: This is the word text for what he then says on the tape. Now, you heard that voice. No question whose voice that is. Mr. Darden concedes whose voice that is. They don't do anything. Talking about women. Doesn't like them any better than he likes African Americans. They don't go out and initiate contact with some six foot five inch Nigger who has been in prison pumping weights. This is how he sees this world. That is this man's cynical view of the world. This is this man who is out there protecting and serving. That is Mark Fuhrman. And he is paired in this case with Phil Vannatter. They are both beacons that you look at and look to as the messengers that you must look through and pass. They are both people who have shown that they lie, will lie, did lie on the stand under oath. And you know, one little parenthetical thing how these people all try to stick together from the standpoint of law enforcement. The FBI agent come in here and he talks about--when I bring out the facts he says that Vannatter says they are not there to save lives. On cross-examination, he says, well, I think he was being sarcastic, Vannatter was being sarcastic or maybe it was a joke. But you know, when I listened to that, I thought about that, I said, well, what is the joke? What is the sarcasm? Is the constitution this man's rights to be safe and secure in his home? Is that the joke? Is that the sarcasm? Sad state of affairs. That is the lead detective I'm talking about, these two twin devils of deception. You think about it and keep them in mind. Thank you for your attention during this first part of my argument. I hope that during this phase of it I have demonstrated to you that this really is a case about a rush to judgment, an obsession to win, at all costs, a willingness to distort, twist, theorize in any fashion to try to get you to vote guilty in this case where it is not warranted, that these metaphors about an ocean of evidence or a mountain of evidence is little more than a tiny, tiny stream, if at all, that points equally toward innocence, that any mountain has long ago been reduced to little more than a molehill under an avalanche of lies and complexity and conspiracy. This is what we've shown you. And so as great as America is, we have not yet reached the point where there is equality in rights or equality of opportunity. I started off talking to you a little bit about Frederick Douglas and what he said more than a hundred years ago, for there are still the Mark Fuhrmans in this world, in this country, who hate and are yet embraced by people in power. But you and I, fighting for freedom and ideals and for justice for all, must continue to fight to expose hate and genocidal racism and these tendencies. We then become the guardians of the constitution, as I told you yesterday, for if we as the People don't continue to hold a mirror up to the face of America and say this is what you promised, this is what you delivered, if you don't speak out, if you don't stand up, if you don't do what's right, this kind of conduct will continue on forever and we will never have an ideal society, one that lives out the true meaning of the creed of the constitution or of life, liberty and justice for all. I'm going to take my seat, but I get one last time to address you, as I said before. This is a case about an innocent man wrongfully accused. You have seen him now for a year and two days. You observed him during good times and the bad times. Soon it will be your turn. You have the keys to his future. You have the evidence by which you can acquit this man. You have not only the patience, but the integrity and the courage to do the right thing. We believe you will do the right thing, and the right thing is to find this man not guilty on both of these charges. Thank you very, very much. I appreciate your attention. I think, your Honor, we may need a brief break because he has to be--
THE COURT: Exhibits?
MR. COCHRAN: Judge, yes.
THE COURT: All right. Ladies and gentlemen, we will take a 15-minute recess at this time. Remember all my admonitions to you. And we will see you back here in fifteen minutes. All right. We will stand in recess.
LOS ANGELES, CALIFORNIA; THURSDAY, SEPTEMBER 28, 1995 10:10 A.M.
Department no. 103 Hon. Lance A. Ito, Judge
(The Defendant not being present, represented by Johnnie L. Cochran, Jr., and Peter Neufeld, esquires; the People not represented.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in camera:)
THE COURT: I am going to recite the following facts that just occurred in open court after we recessed. Mr. Neufeld called my attention, told me his glasses had not been fixed, that he wanted to sit over by the rail next to the jury. I told him he could not, and then he told me that was not fair. I find that to be a contemptuous remark, accusing this court of not being fair. I cite you for contempt. Mr. Neufeld.
MR. NEUFELD: May I be heard?
THE COURT: You may be heard.
MR. NEUFELD: Thank you. Your Honor, what I said was that I had repaired my glasses with the glue, but that it broke again this morning. It didn't hold. And I sat there through Mr. Cochran's summation and I couldn't see what was happening. I asked if I could sit up there in the seat not next to the railing, but next to Detective Lange. Detective Lange could sit next to the railing. All right. That's what I asked for because, as I stated, I can't see the summation otherwise. You said no at that point and I said I didn't think that was fair. I said it not in front of anybody else. It was a private comment. I was simply saying for the court to deprive me the ability to see the summation and see what was happening when there was seats there I didn't think was fair. I really didn't. I just can't see it otherwise.
THE COURT: Mr. Neufeld, this court gave you as much assistance as possible to help you with your glasses. There are one-hour glass repairs that are readily available. You decided not to take advantage of that. That's not my problem. To ask to sit on the side of the courtroom and in the row that's reserved for the Prosecution because you have a problem with eyeglasses that you have not addressed is not this court's problem.
MR. NEUFELD: Your Honor, with all due respect, number one, I tried to take care of my glasses. I don't even have a prescription. I called the doctor in New York. He couldn't give me the prescription because they're in the archives at this point because I haven't been there in several years. That's not the point. The point is that there have been many times during this trial when we were permitted to sit in those seats. We were permitted to sit in those seats so we could see boards being shown. We were permitted to sit in those seats when witnesses during the Prosecution's case came off the witness stand to point out certain things to the jury. That has never been a problem. You've never made it an issue. This is the very first time you made it an issue.
THE COURT: The Prosecution objected to your being there during their arguments.
MR. NEUFELD: That's exactly right. So we went back. It's no longer the Prosecution's argument right now. It's the Defense argument. So the Prosecution--
THE COURT: And it's their side of the courtroom. Do you want them to sit on your side of the bench?
MR. NEUFELD: I have absolutely no problem with them sitting over on our side of the bench, your Honor. In fact, it could have been suggested for purposes of summation.
THE COURT: That's not the issue. The issue is what you said to me, and I find that to be contemptuous.
MR. COCHRAN: Could I address that? I think if the court understands that--and I appreciate what the court is saying. I glean as a third party here that he did not mean it in a contemptuous fashion. I'm sure he doesn't. He apologizes that the court took it that way because he didn't mean it.
THE COURT: I haven't heard him apologize, counsel.
MR. NEUFELD: I did not mean it. I did not mean it to be contemptuous to the court, your Honor. I do think, however, that I should be permitted to sit over there because I can't see otherwise. I have tried--made every effort to try and get new glasses or take care of these glasses so I can see, and I can't. I literally can't see. I've worked on Mr. Scheck's summation for days with him and I would like an opportunity to be closer so I can see it. That's all I am asking, all I was asking.
MR. COCHRAN: Let me address that. It is true, your Honor, as you know, Mr. Neufeld and Mr. Scheck work together day and night, and we would ask the court to consider--in fact, if--the court indicated the Prosecution had an objection. Since it's our argument, I would ask for an opportunity to ask them if they have any objection to, during Mr. Scheck's argument, Mr. Neufeld being close by. I think he would like to see it. They live together. They came here together, and I think that would be reasonable. I think it's clear to the court he was not and would not be contemptuous to this court on that issue. He does apologize from that standpoint.
THE COURT: I don't believe that's a genuine apology, counsel. I think it's a pretense just to get out of this at this point.
MR. COCHRAN: Your Honor, I think that given this--and given where we are, over this issue, I just don't think he would--this would be an issue that anybody would go over the wall, just on the issue of eyeglasses I don't think. I think, knowing the respect he has for this court, I don't think he would do that.
THE COURT: For him to say that in open court while the jury is still in the box, the public is still there--
MR. COCHRAN: I didn't hear it, your Honor. I was over there. I did not hear it.
MR. NEUFELD: I don't think that's fair because I do think when I said it to you, you came over toward me, the jury had already left the box. I looked over--
THE COURT: The jury was still--some of the jury members were still there.
MR. NEUFELD: You were walking off the bench at that point when I said it to you and had that discussion with you. There were no more jurors in the box. I purposely waited until they were all gone. The only other person who was present in the range of my voice besides you was Deirdre. There was no one else who heard, no one else who could have heard it, and I would have--I wouldn't do something like that. And I mean it's not fair to even think I would do something like that. If you can appreciate the frustration of not being able to see what's going on in the proceedings where I've worked here for seven months, you know, at great sacrifice--and I've tried to make efforts so I could see it today, all of which failed. I was on the telephone with a number of different places yesterday to try to take care of this. It couldn't be done. So I reglued it again, I came in today, and they broke again. I mean, that's all that happened. I was trying to put them on, and I couldn't and they broke again. So I couldn't see. And if you looked, I didn't have glasses during the summation this morning when Mr. Cochran spoke.
THE COURT: Mr. Cochran, would you ask either Miss Clark or Mr. Darden to join us, please.
(Christopher Darden is now present.)
THE COURT: Mr. Darden.
MR. DARDEN: Good morning.
THE COURT: Good morning. How are you, sir?
MR. DARDEN: Fine.
THE COURT: Mr. Neufeld, because of his broken glasses, has requested permission to sit on one of those seats on your side of the rail on the back row so he can see Mr. Scheck's performance. Do you have any objection? He can't see because of his glasses.
MR. DARDEN: You mean, we have like 500 one-hour glass places in this town and he hasn't gone there? Is he going to sit next to McKenna?
MR. NEUFELD: I thought--Detective Lange is sitting on the railing--I could sit next to Detective Lange, inside from Detective Lange.
MR. DARDEN: I don't mind him sitting next to McKenna near the elmo.
MS. CLARK: He can sit next to him for Barry's argument. I don't want him there for me, if you don't mind.
MR. COCHRAN: The understanding is, he's to the right of McKenna, is on their side.
THE COURT: All right.
MR. COCHRAN: I think--Judge, I appreciate that. And I do reiterate that I don't think he meant any disrespect for this court. I wasn't aware of this. I was focusing--I didn't hear from where I was.
THE COURT: You guys are insistent on making this exciting every day.
MR. COCHRAN: I want to get through a day with no problems, get this case to the jury. I want to pass it off to them.
MR. DARDEN: Anything else?
THE COURT: No.
(Mr. Darden exits chambers.)
MR. COCHRAN: I believe we are getting close. We can do everything we can to talk to Mr. Scheck now, see if we can't finish ours I hope by the dinner break and then so they can wrap it up.
THE COURT: No. I was telling Peter earlier today I think tomorrow morning.
MR. COCHRAN: Are you telling me that you would go over?
THE COURT: No. I don't think they'll finish.
MR. COCHRAN: No, I don't think so. But I think--just for your planning, I think you can try--I think we'll get it to the jury tomorrow. You only have a few instructions left?
THE COURT: Yeah. Just concluding instructions.
MR. COCHRAN: Judge, may I ask--can we go off the record?
THE COURT: Off the record.
(A conference was held, not reported.)
THE COURT: All right. I'm going to withdraw my citation of contempt. Mr. Neufeld, you may sit on the back row next to Mr. McKenna. All right.
(At 10:20 A.M., in camera proceedings were concluded.)
(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. Mr. Scheck, do you have your exhibits organized? Are you ready to proceed?
MR. SCHECK: Yes. Thank you, your Honor.
THE COURT: All right. Deputy Trower, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning again, ladies and gentlemen. And Mr. Scheck, I understand that you are going to address the DNA issues or physical evidence issues?
MR. SCHECK: I hope so.
THE COURT: You may proceed.
MR. SCHECK: Thank you, your Honor.
CLOSING ARGUMENT BY MR. SCHECK:
Ladies and gentlemen of the jury, good morning.
THE JURY: Good morning.
MR. SCHECK: Let me join with everybody in thanking you for your service. I can--the frustration, the loneliness, the sacrifice you have made in this sequestration is something that we understand or we are trying to understand. As the Judge has pointed out a number of times, my colleague, Mr. Neufeld and I, we are from New York city. More specifically, we are from Brooklyn, and we've been out here quite unexpectedly for a lot of months. And I remember when that detective from Chicago testified about having those keys that you stick in and out of the doors and little lights go on, umm, every day going in and out of those doors again and again, and again like groundhog day, everything repeating itself, the monotony, the loneliness, the frustration. We sit around and we talk sometimes in amazement at how you deal with this and how appreciative we are and--well, it is just really a honor and a privilege to present this case to you. And as lawyers that dealt with some of the forensic evidence in this case, which was detailed and complicated, and I'm sure I speak for myself, Mr. Blasier, Mr. Neufeld, Mr. Clarke, for the Prosecution, Mr. Goldberg, that we had a job. Our job was to make it simple, to make it cogent without sacrificing any meaningful detail. That is our job. And I can't tell you how appreciative we are because you paid attention, you were patient, you followed the evidence. I know that. I watched it. Now, you know it is our job to make it simple, to make it cogent without sacrificing detail that was important, and sometimes we let you down. I know that. Some days when we were talking about some of this, it was hard, and we came back to it again. And I think both sides tried to clarify the issues as much as we could, but you never let us down, because those were long days, but you were more than fair with us. I know you followed and paid attention to this evidence. So it is a privilege and honor to have presented that evidence to you and I must also say that standing before you right now is a terrifying responsibility. It is a terrifying responsibility because we think the evidence shows that we represent an innocent man wrongly accused.
MS. CLARK: Objection, objection.
MR. SCHECK: We represent, we think--
THE COURT: Excuse me.
MR. SCHECK: We think the Prosecution hasn't come close to meeting its burden of proof in this case beyond a reasonable doubt and we--
MS. CLARK: Your Honor, objection.
THE COURT: All right. Side bar, counsel.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Miss Clark, I think your objection is that there was a comment by Mr. Scheck that "We also believe."
MS. CLARK: Yes.
MR. SCHECK: My comment was, and I want to be specific because I am very aware of these rules, we believe the evidence shows.
MS. CLARK: That is not what he said.
MR. SCHECK: That is exactly what I said. I resent this interruption. I know the rules and she can go check the transcript.
MS. CLARK: Read it back.
THE COURT: That is not just what was said there, but just a caution.
MS. CLARK: Your Honor, we think we represent a man--
THE COURT: That is what he said. I cautioned him.
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. SCHECK: The integrity of this system is at stake. You cannot convict when the core of the Prosecution's case is built on perjurious testimony of police officers, unreliable forensic evidence and manufactured evidence. It is a cancer at the heart of this case and that is what this evidence shows. When you go through it patiently, when you go through it carefully, when you go through it scientifically, logically, that is what the evidence shows, and you cannot convict on that evidence. There are many, many reasonable doubts buried right in the heart of the scientific evidence in this case, and we have demonstrated that. And we don't have to prove them, but the evidence shows it. So in the words of Dr. Lee, something is wrong. Something is terribly wrong with the evidence in this case. You cannot trust it, it lacks integrity, it cannot be a basis for a verdict of beyond a reasonable doubt.
There was a logo that we showed you in the opening statements that we have reproduced here on a board, and you may recall it, it is a black hole. As you recall, it shows the evidence from Bundy, the evidence from Rockingham and the Bronco, the evidence from Mr. Simpson itself passes through the Los Angeles Police Department, the messengers that Mr. Cochran was talking about, the lab, criminalists, Coroner's office, and then it is tested by the FBI, the Department of Justice and Cellmark. And if you recall, in the opening statements we said contaminated, compromised and corrupted, integrity of the evidence. Now, the importance of this flow chart is point no. 1, and you heard Dr. Cotton, Gary Sims, Dr. Gerdes, all the forensic experts told you with respect certainly to DNA testing, all the testing, if it is contaminated, compromised or corrupted here, it doesn't matter what the results are by these other testing agencies, because if it happens within that black hole of LAPD, it doesn't matter how many times you test it. Miss Clark got up there and said, well, why didn't we hear from Dr. Blake. If we didn't have Dr. Blake in this case to be sitting there as the testing was going on--while you were already serving on this jury panel things were being tested. He was up there looking at what he was doing. We wouldn't have even known what was going on in this case. But the point is, by the time it reached the California Department of Justice and Gary Sims, if that evidence--and we have demonstrated, contaminated, compromised and corrupted. You could do a hundred tests. Dr. Blake could test it, Dr. Lee's lab could test it, everybody could test it and you would get the same result, so that has not been the issue in this case and don't be distracted by that. Dr. Terry speed, you will recall him, he gave testimony in this case about error, laboratory error, and he again used that term, common mode error. If it happens here and that is where the evidence is compromised, contaminated and corrupted, these results are not adding anything. So you ask the question how did the Los Angeles Police Department, how does any laboratory become a black hole that impairs the integrity of the evidence? Can we have the first slide. Any laboratory has to have three things: You have to have rules and training, you have to have what is known as quality assurance and you have to have chain of custody, security of the evidence. Well, what have we heard about rules and training at the Los Angeles Police Department laboratory? Well, this laboratory is run without a set of rules. That everyone knows. They don't even have a manual. Think about that. That is extraordinary. And then they have this draft manual and it is ignored by the criminalists, Fung and Mazzola. They don't know what is in the draft manual, what procedures there are. And then the laboratory director, Michele Kestler, well, she was the acting laboratory director. Actually one of the real problems here is at the time of this case the head of the laboratory was a police officer, not a scientist, but Michele Kestler, she had that draft manual on her desk for four years going through it. And she says, well, some of this is no good and they didn't get around to it, so that is how you become a black hole. The testimony is clear in this case they did not give their criminalists training in state of the art techniques, in particular of great relevance here, there was no DNA training for the evidence collectors. Now, that has got to be a significant point. Miss Clark told you in the opening statement that collecting, preserving bloodstain evidence for purposes of DNA testing was a simple as going into your kitchen and cleaning up spillage. Now, we all know, we all know that is not true based on what we've heard in this case. May we have the next slide, please. Quality assurance. That is a term that is used in bureaucracies and hospitals and laboratories, any places where you are trying to deliver service with integrity. What is going on here? There is a failure to document how you collect the evidence, a fundamental duty as Dr. Lee showed you, remember, with that chart, fundamental duty of the criminalists to document the evidence. In other words, where it was picked up, how it was picked up, when it was picked up. And we have seen the problems in this case when you can't do that and to try to reconstruct it later when your memories are gone and you can't do it. Well, that is not done. And failure to document testing is tolerated. Compare the notes at the Department of Justice, Gary Sims and Renee Montgomery, with what you saw from Collin Yamauchi and Dennis Fung. We--it was--I had to rearrange the notes for Collin Yamauchi, his own notes, when he was on the witness stand, and he goes that's right, first I took out O.J. Simpson's reference sample and made the fitzco card, then the next thing I did was the glove and then the next thing I did, all within that one hour twenty minutes, were the Bundy blood drops. I had to reconstruct his notes for him and he goes, that's right, that is the way it happened. I guess that is right. I mean, it had to be when you reconstructed it all, but the notes are not there and that is fundamental for having any integrity whatsoever. There was no serious supervision of these people. That is just clear. You saw it. This lab was not inspected. This lab is not accredited. This lab is not subjected, certainly the DNA, to external blind proficiency testing which you know, which you know, is what you need. Dr. Gerdes told you about that. Everybody talked about that. This national research counsel report, DNA technology in forensic science. Could we have the next slide. Now, this is critical. Chain of custody and security. There is absolutely nothing more fundamental to preserving integrity of forensic evidence than a chain of custody, than having security. You have to know what you are picking up. You have to be able to document it, otherwise bad things can happen and nobody can trace it. In this case they did not count the swatches when they collected them. They did not count the swatches when they got back to the laboratory and put them in the tubes for drying. They did not count the swatches when they took them out of the tubes and put them in the bindles. We don't know how many swatches they started with. They didn't book the evidence in this case for three days. They kept it in the least secure facility, the evidence processing room, for three days, without being able to track the items. The lead homicide detective in this case, and we have talked about it a little and we will talk about it some more, is walking around with an unsealed blood vial for three hours. It is unheard of. The other lead detective in this case is taking shoes home right out of--this could be critical evidence. The shoes that they suspect he was wearing that night, taking it home. Now, you know, it was amazing, when Mr. Fung testified, the extent to which, you know, they have lost all tract of the rules. At one point I asked him, well, it would have been all right if they took the blood home and he said sure you could put it in the refrigerator overnight. Do you remember that answer? I mean, there is no sense of what has to be done in order to give you reliable evidence. None. Think about the Bronco. They finished doing the collection in the Bronco and then it is abandoned literally for two months. There is a box supposed to check off, give special care if you are going to check it for biological evidence, not checked off. It is sent to Viertel's. It is abandoned for two months. There are no records of who went in and out of that car. There was a theft. Everybody was around in there. And then on August 26th they are collecting evidence from it. And then finally, and this is--could we have the next board. This is a critical point that I think demonstrates all you need to know about security and chain of custody in this laboratory, the missing lens, the missing lens. Now, this is very important evidence. This is the envelope that is found at the crime scene with the prescription glasses. If you are investigating a case, you are very concerned about this.
THE COURT: Mr. Scheck, are there any remains on this board?
MR. SCHECK: No, there are not, your Honor.
THE COURT: All right. Thank you.
MR. SCHECK: Now, we can tell, as Dr. Lee pointed out, on this lens there are smears of blood, trace evidence. There could have been fingerprints from the perpetrator who was going into that envelope. On June 22nd Dr. Baden and Dr. Wolf got an opportunity just to look, just to look at the evidence, not touch or examine or test, just to look, and they saw two lens there, made a note of them. February 16th, think about it, that is the first time we got a chance to inspect and just even handle the evidence. You are already sitting here February 16th. There is something wrong. When we look at it, that lens is gone. There is no report, no record, no investigation of its disappearance. Nobody comes in and tells you what happened. Now, that tells you a lot. Did somebody take this from the laboratory as a souvenir? Did somebody walk off with this? How can that be? This is critical evidence in a case? How can that be? It just vanished down this black hole?
Now they are going to say we are Fort Knox. Nobody could get to the evidence in this case with our evidence tracking system. I should just tell you in passing, I'm sure you caught it, that even when it is booked into the evidence control unit and it is supposedly being tracked, they didn't say their computer tracking system is a chain of custody system. It isn't. They have all the evidence items in boxes, like the sock and the blood drops, and they will put them in the serology freezer and they are in a box there and then somebody will hit the computer and they can go in and then they can take any item they want out of that box. It is not tracked by specific items. There is no good security in this system. There is plenty of access if you want to tamper with evidence if you are authorized personnel, if you are a lead detective, if you are somebody there. It can happen. And the missing lens is you all you need to know. What is going on here? And if they come back and say, well, maybe Dr. Baden and Wolf are wrong, there was no lens to begin with, well, that is even weirder, isn't it? What kind of killer takes a souvenir like this? How does that fit in with their theory? The missing lens is a serious problem in this case. Now, the black hole symbolizes something else. You know, science is not better than the methods employed and the people who employ it. DNA is a sophisticated technology. It is a wonderful technology. But there is a right way to do it and a wrong way to do it. The issue in this case is not is DNA good or bad DNA technology. The issue is right or wrong. So Miss Clark gets up here and tells you, well, Dr. Lee said DNA is okay, therefore the DNA evidence in this case is okay. That is ridiculous. Dr. Lee said right way, wrong way. Dr. Lee is one of the authors of this report. Right way, wrong way. And something else. During the cross-examination of Dennis Fung and Andrea Mazzola and Mr. Matheson, we brought out a pamphlet entitled "Collection of DNA evidence," how you should do it. It was a pamphlet that was put together by Dr. Henry Lee in association with others. Mr. Fung had only heard of it, if you recall, after he was prepared to testify in this case, not before they all went out and collected the evidence. And in that report, as it was established, and Mr.--Agent Bodziak, I don't know if he really knows a lot about Dr. Lee. As he said he had limited knowledge. I mean, he is questioning whether he goes to crime scenes. The FBI is saying how do you collect evidence at a crime scene? Dr. Lee writes the manual and in that manual they say you don't put these swatches in plastic bags because you put wet blood swatches in plastic bags, you are going to degrade all the DNA in them. And they sat here debating whether you could do that for months, and as we will talk about it now, they are trying to turn that argument around, but it is just plain that they didn't know what they were doing here. And you can have the most sophisticated technology in the world and if you don't apply it correctly, you can't trust the results. There is no compliance with the NRC report. There is no compliance with the kind of standards that you would require in a life and death situation, and this is a life and death situation. And that is what you have to demand of a laboratory. And Dr. Gerdes is a man that deals with life and death situations, bone marrow transplants, organ transplants, disease diagnosis. He came in and told you about the standards that we demand, that we require, that ought to be the minimum. They are not close. You can't brush this off, as Miss Clark did in her argument, by saying sloppy criminalists, sloppy Coroner and that is all she said. I fully anticipate that most of the matters I am going to address to you she has been planning to address in her rebuttal summation because she certainly didn't address them in her closing argument, did she. You can't just say sloppy criminalist, sloppy Coroner, big deal. She said DNA--insult to your intelligence, frankly--DNA is used to identify the war dead therefore accept all the evidence in this case. That doesn't answer the question, does it? As a matter of fact, the DNA tests she is talking about are something that are all mitochrondrial dealing DNA tests and it has nothing to do with the DNA tests in this case and the war dead has nothing to do with what was going on in this case. Zero. It is not an answer, it is not this case, it is not the techniques. They argue that the Defense has to prove exactly how, exactly where, exactly when tampering occurred with any of this evidence. That is not our burden. That is not our burden.
They have to prove that this wasn't tampered with beyond a reasonable doubt. When people tamper with evidence they try to do is with some stealth, they try to cover their tracks, and as Mr. Cochran pointed out, it wouldn't take more than two bad police officers to do this and a lot of people would look the other way. Could we have 2.01. Now, the way that I would like to organize the rest of my remarks for you is a systematic study of the essential facts and the circumstantial evidence charged in this case talks about key points. "Each fact which is essential to complete a set of circumstances necessary to establish the Defendant's guilt must be proven beyond a reasonable doubt." Each essential fact. That is what is special about a circumstantial evidence case. For each essential fact they have to prove it beyond a reasonable doubt. If they fail, if there is a reasonable doubt about an essential fact, you must acquit. Those are the rules. And when you are looking at a piece of circumstantial evidence, if it is susceptible of two reasonable interpretations, one points to guilt, one points to innocence, you must adopt the one that points to innocence. Could we have the next chart. So what I propose to do with you today, and I will try to do it as quickly as I possibly can, is go through what I believe are essential facts. Now, we don't have to prove anything and we don't have the burden of proof here and I'm going to confront each and every one of these essential pieces of evidence in this case and raise a reasonable doubt about it, more than a reasonable doubt, many reasonable doubts. But if they fail in one of their essential facts, you have to acquit. We are going to go through the sock--another reason I put this up here is that you will know when I'm getting close to done and you can follow along. The socks, the stains on the back gate, the missing blood, the hair and fiber, the evidence of struggle at Bundy, the testimony of Dr. Baden and Dr. Lee, the Bronco, the Rockingham glove. That is what we will be discussing this morning.
Let's start with the sock. We know that on June 13th when Mr. Fung went to collect the sock--not yet--he saw it on the throw rug--not yet--and he did not see blood. He did not see soil on the carpet. He did not see any trace evidence around, not on the stairwell, not on the carpet leading into the bedroom, not anywhere. There is supposedly a stain, an ankle stain, on these socks. You saw it, cut out, about an inch and a half. More DNA in that than anything in this case. Wouldn't that, if it were there, have left a transfer, some speck, something, if they are in a struggle? You have children; I have children. Did you ever see them go out to play in dirt like that closed-in area at Bundy, get into some kind of ruckus. Socks come back, they are filthy. It would have to be here if there is anything on them at all. Nothing. Nothing there. Now Mr. Fung is looking for blood. These socks are the only clothing they take. It is logical as a criminalist, as he admitted on cross-examination, that he would be looking at the ankle area, the one they would look to first, because that would be the most likely exposed. He sees nothing. He is running around trying to do testing of anything that looks like blood. No test of the socks. Then on June 22nd Dr. Baden and Dr. Wolf were permitted to go to the crime lab and Michele Kestler shows them the socks. They see nothing. Now, we get to June 29th. This is very interesting. On June 29th the Defense wanted access to sample, split them, and the criminalists, Matheson, Kestler, the head of the laboratory and Yamauchi, are going through all the evidence in about a five or six-hour period, right there they are going through all the evidence to make an assessment of what kind of testing could be performed, of what kind of biological material or blood would be on any of these pieces evidence to see from testing, RFLP testing, how they could be divided. They also--Mr. Yamauchi said they were literally measuring the size of the swatches and making assessments and making examinations. What piece of evidence at that point is more important to these people than the socks found in Mr. Simpson's bedroom? Wouldn't you look at that?
And they told us that they took white paper and they put the socks on the white paper and if there is blood, inch and a half on that ankle, you know you saw it every time that we put something down, little specks would come off. Even when Miss Clark put those gloves on the very first day, we actually had it on white paper, you know, the plastic gloves and little pieces of trace fell off and we actually pulled those together, put them in a separate exhibit, because these kind of things fall off. If there were that stain on the sock, that big stain on the sock, they would have seen it. Gary Sims told you he was disturbed by it, that a trained criminalist should have seen it. You use light that is sufficient to look at what you are doing. They are now telling you we didn't have light. We didn't look at what we were doing. Please. Where I come from, that don't pass the laugh test. Now, what is the summary? The socks, on the report they do on June 29th, dress socks, blood search. None observed. None observed. That tells you all you need to do. Or none obvious, I'm sorry. I can't even remember that.
It is either none observed or none obvious. They have two different phrases, one on the handwritten report and one on the typewritten report. Okay. Then suddenly on August 4th Mr. Yamauchi can't remember it was some kind of general inventory, can't--Mr. Matheson might have asked him, he can't remember what the direction was. It wasn't specific to the sock. Somebody said look at--go look at this and then for the first time they find the stain on the ankle. Now we have evidence of the wet transfer going through surface 1, surface 3 through the little holes in the sock to surface 3. It is pretty simple. If there is a leg in those socks, you can't have the transfer. Professor MacDonell and Dr. Lee came in and they showed you the pictures of the little red balls and I don't think it is even being seriously contested that this is evidence of a wet transfer now. They are not contesting it really. Can't get it when the leg is in the sock. Their testimony stands unrefuted. There was no bloodstain expert that came in here and said that is not a wet transfer. Dr. Henry Lee, Professor MacDonell. Dr. De forest didn't show up here. Why?
Now, during the course of cross-examination of Dr. Lee and Professor MacDonell, the Prosecution sent up some hypothetical explanations for this that I'll view with you and each one of them was rejected by Dr. Lee, Professor MacDonell, but Dr. Lee in particular, as I recall, I think they gave him all of them, as highly improbable. Lots of things are possible, but he said these explanations were highly improbable. No. 1, the idea that at the time of the killings there could have been a touch with the finger from the victim of Miss Nicole Brown Simpson on the leg and that it wasn't dry when Mr. Simpson somehow got into that Bronco, came back to Rockingham, avoided Allan Park, ran down the side, left no bloodstains, hit the air conditioner, hit the stucco fence leaving no trace, somehow came in all with the bloody clothes, went up the stairs, left no trace of blood, left no trace of soil, left no trace of berries. Got into the house, took off the socks, left them there and then it is still wet. So if it is still wet when he takes off the socks, you get the transfer to surface 3. Well, there is a big problem with that. Then you should have seen something on the carpet if that is what happened. It doesn't make sense. It doesn't fit. Then the next explanation is on August 4th when Mr. Yamauchi did the pheno test taking the swab and brushing the stain to see if it were blood, that that somehow created wetness that transferred into the third surface. Or--well, Dr. Lee and Dr. MacDonell said that that doesn't make sense when you look at the stains because if that brushing had occurred you would see a diffusion and you don't see that kind of diffusion and that is not the way you do the test anyhow. Just touching it couldn't cause that kind of transfer through to surface 3. Highly improbable said the leading forensic scientists in America. Sweat. Next explanation is going to be sweat. Well, there was a stain from the crime scene, but sweating in the sock and then the sock is taken off and then somehow by process of sweat it transfers to surface 3. Dr. Lee and Dr. MacDonell said ridiculous, highly improbable you would see that same diffusion as with the pheno test and we don't see it. The next explanation. When Mr. Simpson is taking off the socks he coincidentally has a finger that touches surface 3 opposite the ankle stain, so it is not Nicole Brown Simpson's blood that is on surface 3, it is Mr. Simpson's own blood that he accidentally touched exactly opposite. That is a ridiculous coincidence. That doesn't pass the laugh test. That is the other explanation they floated. Then another explanation they tried. They showed Dr. Lee the new picture of the sock. Remember how they were folded up? They said, well, maybe blood of Mr. Simpson's, when you fold the sock over, landed on surface 3 coincidentally opposite the stain when they were bundled up and that is what created it. Again, rejected as a ridiculous highly probable coincidence. Now, none of these things make sense. Miss Clark also said, you know, there is a tiny spatter of Mr. Simpson's--Mr. Simpson's--some blood at the top of the socks of Mr. Simpson. She says, well, there is spatter there. Well, you know, doctor--Professor MacDonell said this is no spatter. Gary Sims doesn't pretend to be a bloodstain expert. Professor MacDonell, Dr. Lee, leading experts in this area. They didn't bring in anybody. It is ridiculous to say there is spatter there, and if it is spatter of O.J. Simpson's blood, how does that happen? What? Did he bleed so much that created a puddle and spatter on the top of the sock? Nonsense. The point is every explanation that they are desperately trying to come up with is a highly improbable inference. The most likely and probable inference is the one that is not for the timid or the faint of heart. Somebody played with this evidence and there is no doubt about it. And you know why there is no doubt about it? Because they got so upset in the opening statement about the socks, about the back gate, so upset that they sent it to the FBI. And Mr. Harmon wrote them a letter saying please refute the Defense theory that somebody tampered with this evidence. Please refute it. Those were the words. Not exactly an objective way of sending it out. Please test this for EDTA. Please refute what the Defense has to say. And Agent Martz never testified in the Prosecution's case. And you know why that is? And that is really all you need to know, because he couldn't refute it, because it is an inference consistent with innocence that they can't refute. There is EDTA. How does that happen? There is EDTA there. So if we could have slide 4. The sock. No blood on June 13th when it is collected. No blood on June 22nd when Dr. Lee--Dr. Baden and Dr. Wolf see it. They looked for blood on June 29th on a lab paper with reasonable light, three people with 25 years of experience, and they don't see it. Most important piece of evidence. Examining it for purposes of court. The wet transfer to surface 3 unrefuted. And EDTA. Now, let's think about it. Is this coincidence? Kill that, please. Is this coincidence, all these things with the sock, or is it corroboration? I say it is corroboration that something is wrong, something is terribly wrong with the most important pieces of evidence in this case. It is a cancer that is infecting the heart of this case. You cannot render a verdict beyond a reasonable doubt based on evidence like this. So if we apply 2.01, an essential fact, the socks, Miss Clark said an essential fact, whose interpretation is the most reasonable? And even if you give some of those cockamamie explanations some credence and you say, well, maybe ours is certainly reasonable enough for you to--you must adopt that, and if you must adopt it, really where does that leave us? Because, you know, there is another instruction that I submit has some relevance here. Could we have the slide now. Now, you've been instructed that: "A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who has willfully testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars." Thank you. Now, yes, that applies to witnesses, but I would argue to you that by analogy it applies to the messengers who are bringing you this forensic evidence as well. Because let's just think about the socks. The LAPD officers and lab people who are responsible for the collection of this, for the chain of custody, for preserving the integrity of this evidence, are the same people that are bringing you everything else. Remember what Dr. Lee said about the socks? He said it is like eating a plate of spaghetti. Looking--bowl of spaghetti I think he said. You see a cockroach. Do you then take every strand of that bowl of spaghetti to look for more cockroaches or do you just throw it away and eat no more? In your deliberations somebody may say, all right, I have a reasonable doubt about this essential piece of evidence; the socks. I have a reasonable doubt. They--it is reasonable that they manufactured this piece of evidence. But let's put that aside and look at everything else. Well, just wait a second. Just think about what that means. If they manufactured evidence on the sock, how can you trust anything else? How in this country, in this democracy, can they come in--there is no doubt Fuhrman is a liar and a genocidal racist. There is no doubt about that. But there is really no doubt either that they played with this sock, is there? And if that can happen, that is a reasonable doubt for this case period, end of sentence, end of case. It really, really is true. Not in this country. It is a test of citizenship. Not in this country. Now, let's go to the back gate. Could we have the next slide. Because, you know, there is more. There is more of this cancer.
We don't have the rest of that? Put it all up. 117--put it all up, Howard. 117 was the stain taken from the back gate, and you know, there was something very strong about it, wasn't there? The blood drops at Bundy were degraded and had extremely low DNA concentrations. 117 had enough for an RFLP test. It was 27 times as much as 47, the first blood drop, 45 times as much as 48, 270 times as much as 49, 51 times as much as 50, 11 times as much as 52. This slide, like most of them I'm going to show you, is in evidence and you know who brought us that testimony; Gary Sims from the Department of Justice. Could we have the next slide. That is 117, the one on the gate. Do them all. This is 115 and 116, the one on the lower parts of the gate. 15 times as much as 47, 22 times as much as 48, 135 times as much as 49, 25 times as much as 50, six times as much as 52. This supposedly has been out there from June 12th to July 3rd. And--kill that.
There is no question sunlight degrades DNA. Moisture and bacteria degrade DNA. Why are these concentrations so much higher? And another point. There is DNA concentrations but there is also a separate test, as you have learned when you look at those yield gels, for degradation. These samples are not degraded. How can that be? Nothing. Now, there is something interesting here, too. The Prosecution is now saying, well, it is on a different surface than the Bundy blood drops. Bundy blood drops are on cement. This is on a metal gate, painted metal gate. So there is something magical about this that will prevent it from degrading at all in over three weeks. It is--remember, the blood drop no. 50 is just a few feet from this bottom portion of the gate that is very, very close to the surface and all the same environmental insults. But you know what proves this argument totally fallacious? And I asked this question of Gary Sims, and you can go back. Remember the blood from the handrail? That was one of the last questions I asked him. It is very curious to me that they never typed that. They are still testing. Remember the blood on the handrail as you are leading up Bundy? Same kind of surface. Totally degraded. Remember the samples from the front gate? There was blood on the front gate. Gary Sims' testimony. No question about that, severely degraded, just like the other samples from Bundy. So those are the same kind of surfaces, so this explanation don't pass the laugh test. Well, what is the other explanation that Miss Clark offered you? Now, this is a whopper. She said, well, it is the plastic bags. I mean, that is rich. They spent weeks trying to deny that putting samples in plastic bags doesn't degrade the DNA. Well, it does. I mean, you know that from the moisture. So now they are saying on July 3rd, when Fung made this collection, he put these swatches in a plastic bag, but he didn't let them cook as long in a truck as he did on June 12th. It is our own incompetence, that is the explanation. That accounts for these differences. Well, you know that doesn't work either, for a number of reasons. No. 1, they were going, as you recall, on a tour of the crime scene and Fung--apparently right away they found--all of a sudden they found this stuff on the back gate and there is no testimony, zero, as to how long it took Dennis Fung to bring those back to the evidence processing room or how long he had them in a plastic bag or what other things they had him doing. There is no testimony that he immediately went back to the lab. He didn't continue with them in the tour or anything like that. And you know why it is significant that they can't come in here and argue that when they don't present evidence? Because they could have. Because we know that there are records of when you go back into that evidence possessing room and get in the door. They could have demonstrated--if they really wanted to put this argument before you, they could have demonstrated how long it took or they could have brought him back here to testify about it. But frankly, if they brought him back here to testify about that explanation so late in the game, you wouldn't have believed him, would you? So they can't use this plastic bag theory and they can't use that it is a different surface. They can't. It doesn't make sense scientifically. It doesn't fit. So what--what--you know, what is going on here? Now, there is another thing. They are going to say, well, you know, Officer Riske, Phillips, I believe, Fuhrman, Rossi, that night when they were entering the premises, the back gate, they had their flashlights and they were looking up and down and they think they saw some blood on the back gate, so they all testified to it, so you know it is there. Well, first of all, we know--you have been there--that this gate was rusty. There were all kind of darknesses, imperfections. There were berries all over there. There is all kind of discolorations. And what did they really see with their flashlights? It is not clear what they saw with their flashlights. But you know what is very, very interesting is that Lange said to Fung, go look, there is blood on the back gate, you should go look, and we have heard reports there is blood on the back gate. Now, this is very interesting. Could we put up the diagram. You may remember this. This is the diagram that Fung did of the back gate. Pull back on it. And you will recall the testimony. These are--the numbers you see, 115, 116, all those numbers, right, those are the photo numbers. You recall how they did the collection, that they started, they put down a photo number, not the evidence item number, so they started on the walkway with 112 and they put down 112 and that was sample 47 and they collected that. Then they went and they put down no. 113 and that was sample 48 and they collected that. Then they went down and they put down 114 and that was sample 49 and they collected that. Then they put down 115 and that was sample 50 and now we are right by the back gate and they collected that. Now, this is what shows you there was no blood on the back gate. Because at that point what do they do? They go to the front gate. They walk all the way back to the front gate where the bloodstain patterns are, that is 116, and then they go back all the way to the end of the driveway and then get the last blood drop, no. 52, 11. Why did they go all the way back? I will tell you why. Because Detective Lange had told Mr. Fung, as he testified, that there was blood on the back gate, and they looked, he heard reports of it, and they didn't see any blood on the back gate. So the only blood they saw on the gate was on the front gate, so they went back and collected 116. And you know what else shows you that? Could we have the picture? Where is it, Mr. Fung? They took no pictures of any blood on the back gate, 117. There is some discoloration there that may be consistent with 115, if it is blood at all, but there is no 116. So there is no pictures either. Thank you. Now, what else? What else? What else? There is EDTA on the stains from the back. So can we have a chart on this? Let's look at the back gate. No documentation or photos on June 13th. Discovered on July 3rd. DNA concentration. EDTA. Coincidence or corroboration that something is wrong, something is terribly wrong. There is a cancer at the heart of this case. This is a reasonable doubt. You put this together with the sock, how many cockroaches do you have to find in the bowl of spaghetti. This isn't made up. This isn't invented. These are facts. How could all of this be? How can--this is not--this is a reasonable interpretation of the evidence based on solid fact. You cannot on your oath reject this and, say, ah, it never happened. You can't. It is a reasonable doubt. Now, let's discuss EDTA, because that is obviously an important issue. They asked for the tests to be done after the opening statement. Refuted. And they didn't put them on because it doesn't refute. Reasonable interpretation of the evidence, if there is EDTA there, consistent with everything, comes from a purple-topped tube on the face of it. They didn't put them on. We had to call them. But you know, there is a very, very interesting point that you might have missed in Dr. Rieders' testimony when you compare Dr. Rieders and Agent Martz, and that is in January there was a gentleman named Henkhaus, works with the LAPD science division, and they were interested, after the opening statement, in seeing whether or not tests could be performed to detect EDTA. Do you recall who they called in at page 38414 of the transcript, of Dr. Rieders'? "Question: Incidentally, at one point were you consulted by the Los Angeles Police Department during the course of this case about methods to detect EDTA?
"Yes." He because shown this letter from Henkhaus. "Do you remember who that was? "Mr. Henkhaus. "And did you provide him with materials on a system in developing a method to detect EDTA? "Yes, of course. There was a letter with a number of citations on it." Before the testing was done, but they knew he was he going to appear as a Defense witness. They reached out to Dr. Fredric Rieders. Why? Because Dr. Fredric Rieders, a Ph.D., a distinguished teacher, he runs a reference lab outside of Philadelphia, a reference lab. People go to this laboratory when you want to develop toxicology techniques which are specialized and sophisticated because he is experienced, he is knowledgeable, he is learned. They asked him for work about EDTA. You know why else? Because Dr. Rieders testified he has expertise in EDTA and it is used to treat people for lead poisoning. He has been working with EDTA for something on the order of 20 years. He is the expert that you would call to interpret the data, so they asked him for references. And now they want to tell you that he is out of his mind, that he is not reasonable in his interpretation of this data and he shouldn't be trusted. Very interesting, isn't it? Now, you know when you evaluate the testimony of Agent Martz and Dr. Rieders, there really isn't that much disagreement. And remember the circumstantial evidence charge about whether if there is two plausible reasonable interpretations, you have to take the one that goes with innocence? There are three questions. Is there EDTA there? Dr. Rieders says yes. Agent Martz says could be consistent with EDTA based on the ms/ms readings. If it isn't EDTA, says Martz, I don't know what else it could be. Next question. If it is EDTA, how much is there? Now, both of them agree that it is in parts per million, not parts per billion. And both agree, when you examine the testimony, that if it is in parts per million, it cannot come from the EDTA we ingest in food that then is secreted into the blood. You don't have parts per million that way, because if you did, you would be in serious--you would have serious health problems. You wouldn't clot. You would bleed to death, as Dr. Rieders was pointing out. The next question. And this is where they parted company. Is the amount of EDTA here sufficient to have come from a purple-topped tube? Agent Martz says--Dr. Rieders says, unless you were treating somebody for lead poisoning and injecting EDTA into them, that is the reasonable explanation for parts per million in these samples of EDTA. Agent Martz says, no, I can't really say because I would expect there to be more EDTA in a sample left for three weeks on the back gate or in--on a sock, you know, that I'm seeing six months later, but he never did a single experiment to find out how much you would expect to get from stains that are months old and are subjected to environmental insults. And you saw that there were quantitation problems when they tested it. It would go up and down. So when you look at it, look at the credentials, Martz versus Rieders. Rieders has far more experience with EDTA. They wanted to hire him or they consulted with him I should say. Dr. Rieders works with the FBI. They go to him and consult, as you heard, on cases. He was working on a case with them at the time he came here to testify. He runs a reference lab that is specialized in these issues. Even though he does not have the $750,000 machine yet, the ms/ms that Martz is using, he understands it, seen it before, interpreted data from it, he is getting one soon. So it is not a question of machine; it is a question of the expertise to understand the data. Agent Martz, he--he is--he has a bachelor's degree, he had some trouble with pi, I don't want to belittle that, but he didn't even--there are some disturbing parts of his testimony, let's face it. He didn't even consider the validation studies that had been performed by others at the FBI laboratory. They are going to make a big deal with these. You know, he didn't look for that 132 daughter ion. I promised not to talk about daughter ions to some people, but he didn't perform the test to find that. All the digital daughters he threw away. He come up with this thing where he says he tests his own blood and he finds some level of EDTA in it but he threw away the documents about what he did. He put it in a test-tube for two weeks that has silicon in it, that has a red stopper in it that could be a source of EDTA. He doesn't go and test anybody else's blood. There would be certainly a phenomena that we found parts per million in parts of whole blood or his whole method is screwed up. They are going to come back and test more. They are going to come back and say, well, Dr. Rieders should have done more of a test on these level of samples. That is what they should have done. Well, you know, it is their burden. It is their burden after all. They say it is key evidence. She said it is their defense. Well, then why not get some real studies or do more studies or save the data or present something to this jury that is credible to disprove it? Miss Clark gets up here and says we have disproven that this could be EDTA from a purple-topped tube. If Rieders has no basis whatsoever for saying this, it can't be a reasonable interpretation of the evidence. Well, saying it doesn't make it so. It is their burden. They have to disprove this beyond a reasonable doubt. They have not.
MS. CLARK: Objection, your Honor. Objection. That misstates--
THE COURT: Overruled.
MR. SCHECK: An essential fact. That circumstantial evidence charge says, an essential fact must be proven beyond a reasonable doubt. Miss Clark got up here and told you this was essential. Have they done that? No, they haven't. That is many, many reasonable doubts. I would now like to talk about missing blood, and I think that we can talk about this in the following way: Access, opportunity and the smoking gun, nurse Thano Peratis. Could we have the first picture. Now, Detective Vannatter, the man who carried the blood, picked up blood from the Coroner's office of Nicole Brown Simpson and Ronald Goldman, blood tubes that contained EDTA. Let's show them all. Remember these? These are pictures of both sides of the tubes. Just pull them out. I think the point is made. One after another covered with blood. He got those from the lab. He carried those. Those tubes, the testimony is, have EDTA in them. He carried them on June 15th. Now, we do not have records. There are no records of the amounts that were initially put in those tubes or where he went, how long he went. No real evidence that we can examine about that, but he carried. On the other hand, when we turn now to Mr. Simpson--that is enough.
MS. CLARK: Your Honor, objection. That--
MR. SCHECK: Yeah. He testified he took them from the Coroner's office and even brought them to LAPD, but there is no record of how much was initially put in those tubes, so we can't retrace the amounts. Now let's look at the handling of the Defendant's, Mr. O.J. Simpson's, reference vial. Detective Vannatter, as Mr. Cochran pointed out, was so upset about how this goes that when he was asked, well, when did you get the blood vial? He said 3:30. Well, it was 2:30. We know that. His testimony is, he gets the vial of blood and he goes off and he has a cup of coffee and he is walking around Parker Center with a blood vial in an unsealed tube. And as you know, the rules are you are supposed to book it immediately. You can book it in that building, Parker Center. You can walk--go a mile away. Takes just a few minutes. And you book them at piper tech where the SID lab is, and you buy a DR number, which is the number for the case, and the case starts. That is what the rules say. But that is not what they were doing. Now, could we have the next--that is not it. I want the instructions.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: There are instructions on this envelope that we reviewed I think with Mr. Yamauchi, which are fascinating. It says that the investigating officer--"Officer requesting withdrawal of blood shall, when the vial is returned to you, enter your initials, shake the tube vigorously. When the affidavit is completed, sign below as a witnessing officer and seal the vial in the completed sealed evidence labels." In other words, what you are supposed to do, after you get the vial from the nurse, is you put it in this envelope and the instructions say, "Using completed sealed evidence labels," you seal the envelope. Now, he has been a detective a long time. He knows the rules. And the testimony is he has never done this before, not seal it, not walk around with the blood. And now there is something else, and it is a little hard to see on this photograph, and we tried to get the original here, but at the very, very bottom there is something really weird that you can inspect--it is covered over by the label. You see the date. "I declare"--this is Thano Peratis. "I declare under penalty of perjury the foregoing is true." And then it says "5/10/94." May 10, `94. Well, wait a second. This was June 13th. This envelope is an old envelope in the lab. It is something that Mr. Peratis had had around there for some reason that says May 10, `94. It is an old envelope in the lab? Why is that? What is going on here? They are not following the rules. He is grabbing this envelope. He is carrying around this blood. It doesn't make sense. It doesn't fit. It is a serious problem, isn't it? Now, the next thing that we have is this misnumbering, you will recall, of the blood vial, and Mr. Fung, as you remember, was stumbling over it. There is a problem here. The sneakers were brought in by Detective Lange the next morning and they were put in as 17. The blood vial is numbered as 18 indicating receipt the next morning after the sneakers and 19 is this hair that Mr. Fung took off the Rockingham glove, all that morning of June 14th. And you recall the testimony that we had in this case that Mr. Fung remembers he had such, you know, problems. He said, well, and I walk walked out of Rockingham, I had the tube either in my posse box, that metal box, or I had it this in my hand in the envelope, or I had it in a brown paper bag and I put it into the truck. And then we showed him videotape and all of a sudden it changed, and we had videotape of people inside and Vannatter bringing in the envelope and now the state of the evidence is that Andrea Mazzola was given a black trash bag and that she didn't know, nobody told her, that the envelope had been put in it and maybe some of those other evidence cards. And you saw the video where they walk into the truck and they throw that trash bag inside the truck and they go back to the lab and now the testimony is, is that they leave it out on the table in a trash bag after they, you know, putting the swatches in the test-tubes and they leave. Now--and they don't even refrigerate the vial. Now, this is a very odd story, to say the least.
And what--and I think what is really peculiar about it, when you get down to it, is the way the testimony came out. Andrea Mazzola said something very interesting. She said that when she saw the next morning, June 14th, the blood vial in the black trash bag, she realized for the first time that she had been the one that carried the blood vial out of the Rockingham residence. So she is saying that she knew that on June 14th. Are you with me? Now, we had all this--we spent three days on this, if you recall. Mr. Fung couldn't remember how the blood vial was carried out. These Prosecutors knew that there was misnumbering, that there was a problem with this blood vial and its transfer. They knew it was a problem. Now, if Miss Mazzola had known since June 14th that she had carried this out in a plastic bag, because she realized it looking at that at the next moment, how come nobody was told this? Why didn't somebody know this? Why didn't they interview these witnesses before they got on the stand for eight, ten days a piece? And this was obviously a crucial problem. Because there is something wrong here.
And of course when she ultimately testified, poor Miss Mazzola had to go over and sit on the couch and close her eyes for twenty minutes, because she was tired and didn't see what went on in the foyer. Now, look. I would submit to you I don't think that is all credible evidence. I think there is something really wrong here, but, you know, you don't even need it really if you think about it, because in terms of access and opportunity, all that really matters is what nobody can deny, and that is Detective Vannatter is walking around with a May 10th envelope that he should have sealed and he should have booked for three hours at least unaccounted for. What is going on? There is something wrong. It is not coincidence. There is something wrong, terribly wrong. Now, the last part really of the missing blood issue, Thano Peratis, the issue arose about how much blood was in the blood vial. Now, if you recall from the testimony, the first thing that happened is that Mr. Yamauchi got the blood and he stuck in a pipetter that says one mil and he created the fitzco card. So that is one mil. The next thing that happens--that is on June 14th. On June 21st toxicology gets there, and toxicology does things in an appropriate way. They measured how much blood was in the tube. They take a tube, they--as Mr. Matheson described, you fill it with water, you look at the other tube and you make a measurement, and they measured it to be 5.5. Now, if it is 5.5 and we started with eight cc's and Yamauchi took one, there is 1.5 missing. No way out of that. No way out of that. Now, Mr. Matheson came in and you saw these incredible experiments that he was performing where he went and he started taking--he looked at all the other times people went into the tubes and is saying, well, you know, if you pipette it out and you pipette it out, you may lose something over time. But let's face it, the Matheson explanations can't get around the 1.5 missing right away. There is 1.5 missing right away and toxicology proves it and they know it. So the only other way to explain the missing blood is Thano Peratis must have been mistaken. That is the only way. And what I will leave you with this morning are two clips from Thano Peratis, technology willing.
(At 11:55 A.M. a videotape, was played.)
MR. SCHECK: When we come back from lunch, we will discuss the meaning of this. Thank you.
THE COURT: All right. Ladies and gentlemen, we are going to take our break for the lunch recess. Please remember all my admonitions to you. Don't discuss this case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess until 1:30. All right. Thank you, counsel.
(At 11:58 A.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; THURSDAY, SEPTEMBER 28, 1995 1:30 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. All right. Deputy Trower, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And let the record 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: And, Mr. Scheck, you may continue with your argument, sir.
MR. SCHECK: Thank you very much, your Honor. Good afternoon, ladies and gentlemen of the jury.
THE JURY: Good afternoon.
MR. SCHECK: When we left, we were--I showed you two clips from Thano Peratis. In the first clip, he was under oath. He said when he drew Mr. Simpson's blood, he looked at the syringe and that's how he knew it was between 7.9 and 8.1. No doubt about it, something he does all the time, routine, something people in this field would do and know. He looked at the syringe. Then, because he couldn't live with it, because 1.5 is missing--and they could have called Thano Peratis in their direct case and put him under oath--Mr. Goldberg goes out and does this statement, this strange bizarre statement in Mr. Peratis' home which they told you is unscripted or that is to say, let's not say gave a script, but common sense tells you that they spoke to this man before they went and did this videotape. And you could tell at parts, he literally said, "I don't remember," because he was forgetting certain parts of what he--I guess what it was--what was planned to say. But let's get down to the substance. I mean, this is not under oath. It is the only testimony you've gotten in this case that is not under oath, which is fairly extraordinary. But you know what's even weirder? It's what he said. His position is this now. First of all, you can see the syringe and you can see the calibrations on the syringe. So now he's saying, "Well, the syringe was turned over and I didn't see the numbers." Well, that's pretty strange, but I think that what's even more odd is that it is his position that he now realized that he goofed. How does he know? He says that he took one of these tubes--you know, these are items in evidence--and he looked at it, and he now remembers months later that when he drew Mr. Simpson's blood on June 13th, he can remember the level that the blood was in the vial. And based on his recollection of where the blood is in the vial, he then starts putting water into another test tube to get it up to that level, and then he says, well, that's 6.5. Well, that's not worthy of belief, is it; that you can remember all these months later the exact level and that's how you come up with 6.5? So not only is it not under oath and not only is it obviously a convenient recantation and appears to have been prepared, shall we say, to suit the Prosecution's purposes when things just didn't fit, but the story is an absurdity. It is just an absurdity. It is not worthy of belief. It is a reasonable doubt in and of itself. Blood is missing.
THE COURT: Mr. Scheck, which two evidence items are they?
MR. SCHECK: This was the syringe, which is 1382, and 1124, a purple top tube of exactly the kind involved in this matter.
THE COURT: Thank you.
MR. SCHECK: Could we have slide no. 9? So let's review the bidding. Missing blood, access opportunity and Mr. Peratis, the smoking gun. Detective Vannatter is walking around with this tube in a May 10th envelope unsealed going up for coffee, three hours. It is misnumbered. It comes in as 18, not 17, 18, after the sneakers which were brought in the next morning. There is at least 1.5 mil missing, no question about it, early in the game because of the toxicology entry, and then we have Mr. Peratis' unsworn recantation. Is this a coincidence or is it corroboration that something is wrong, something is terribly wrong at the heart of this case? It is a reasonable doubt because missing blood I submit to you, the blood is an essential fact, an essential fact in the Prosecution's circumstantial case. If you can't trust the man who carried the blood, if you can't trust where this blood went--I mean, EDTA missing blood. Coincidence? Corroboration? Something is terribly wrong. Now, I'd like to move to the blood drops found at Bundy. And there are two aspects of examining this evidence. The first has to go to the integrity of the samples and the second one goes to the issue of cross-contamination. First, I would like to address the issue of the integrity of the samples. We start with the handling of the swatches. And we know that they are not counted at the scene. They are not counted when they get back to the lab and put into test tubes for drying. They are not counted the next morning when they are taken out of those tubes. There's no count. The first time there's a count is when Yamauchi gets it between 9:00 and 11:20 that morning, June 14th. So we don't know how many swatches we started with originally. And as Dr. Lee told you, as all the criminalists told you, as Gary Sims told you, it is the first duty of a forensic scientist to document the evidence and to establish a chain of custody that preserves the integrity of the evidence so that you can bring it into court and good people like you can feel satisfied that you have honest, reliable evidence. That was not done. No booking until June 16th. It's in the lowest security area, that evidence processing room, where that metal gate can be lifted where supposedly you have to have a card to get in the door, but other people walk in and out and entries are not monitored. It is an unlocked cabinet, and in this phase, there's no way to trace the individual items. Now, we had asked your Honor for the bindles to be produced, but they have not been produced. But you can get them. You can get them when you go back into the jury room. And there is one absolutely extraordinary fact in this case. On August 23rd, Andrea Mazzola was called to testify at a hearing in this court, put her hand on the bible, swore to tell the truth. When she came in, she had her notes, the same crime scene log notes that she and Mr. Fung had reviewed in their testimony. She got on the stand and she was asked questions by Mr. Neufeld about how they went about collecting the swatches and the evidence in this case, and she described the process of taking up the swatches, coming back to the lab, putting them in the tubes for drying, taking them out the next morning, putting them into bindles, and then she testified that they initialed the bindles, that she, Andrea Mazzola, took some of them, Mr. Fung took others of them and she initialed the bindles, those little white bindles that the swatches were in. You all recall that. She said that under oath on August 23rd. And, you know, think about whether or not she would have good reason to remember and have a best recollection of what actually occurred when she testified on August 23rd. This case was the first crime scene that Andrea Mazzola had ever primary responsibility for collecting blood evidence, a good reason to remember. Between June 13th and August 23rd when she testified under oath, Andrea Mazzola had not done another crime scene. So there was nothing to confuse her. She collected blood from a crime scene. When she testified, she knew that this was an important matter. I realize that she did not know who Mr. O.J. Simpson was, fair enough, but she certainly knew that this was an important matter and that everybody was concerned about it, and you would expect that she would want to testify in a fashion to the best of her recollection looking at those notes. She said no question about it that she initialed the bindles. You will get the bindles. We laid them out for you. You can look at 52, 50, 49, 48, 47. Her initials are on no bindles. Zero. Something is wrong. We have the board. Dr. Henry Lee is quite a remarkable man. And we tracked this evidence. He was not--his offer was not taken up, he and Dr. Baden, to examine this evidence at the time it was collected. As the testing was going on, he really did not get a chance to examine and handle the evidence until February 16th while you're still sitting there. However, we did try to track it as much as possible and we were allowed to take pictures at the Cellmark laboratory of the swatches and we were allowed to take pictures of the bindles and measure them and weigh them because something was wrong. And then we found the wet transfers. This is very disturbing, as Dr. Lee indicates, because the uncontradicted testimony is that these swatches were put in test tubes to dry for 14 hours, and Dr. Lee gave you his best estimate that he thought they would dry within three. Then Mr. Goldberg came in with--do you have that study?--the Epstein Bar study. And if we go to cotton cloth, indicates that it should take about 55 minutes if you look at it under condition no. 1, that's at room temperature, to dry. They should have been dry. I expect they'll come in and they'll say there's a swatch sandwich, they were all stuck together so they wouldn't dry. Nonsense. Use your common sense. How do you get wet transfers like this? Well, within three hours of the time that they were taken out and put in bindles, if somebody had switched swatches, you'd see wet transfer. Now, it was a very interesting point in this trial where Mr. Matheson was asked some questions about knowledge that detectives had with respect to the collection of blood evidence. And he and both Mr. Fung testified to this; that detectives are trained in the collection of blood evidence in exactly the way that they do it at LAPD. Now, remember, the way they do it at LAPD is not the way one should do it for the collection of samples for purposes of DNA evidence. They haven't changed their procedures as was testified by Miss Kestler, the head of the lab, in terms of, you know, old conventional serology testing. So they're putting them in plastic bags and degrading samples. But put that aside for a second. Matheson is asked starting at 25031 of the transcript about: "Question: When you say evidence collection technique, have you ever taught detectives how to collect a stain using LAPD procedures? "Talking about biological stain, yes." And he goes on to talk about how they want detectives to have the capability to collect blood drops and they have an on-call system and sometimes a criminalist--excuse me--is not available, so they want detectives to swatch bloodstains. And he goes on to say, and I quote:
"We supply them with blood collection kids, simply a file box with the tools that are necessary to collect the samples." We're talking about here plastic bags, swatches and gloves. And: "Question: I know they are taught to, you know, take a control and use the distilled water and use the tweezer, the whole nine yards? "Answer: Yes. They are both shown in the demonstration form, we talk to them about it. It is demonstrated to them, and if time permits, we have practiced with them in class. "Question: And are detectives in fact collecting biological evidence in the Los Angeles Police Department and submitting it to your laboratory for analysis? "Yes, they do. Detectives have swatches." These detectives would put them in plastic bags just like Fung and Yamauchi. If they were to be stored for some period of time, it would degrade them. Even if they put swatches with EDTA blood on them, they still degrade them. These ridiculous techniques, if they were put into those envelopes and left wet transfers, the integrity of the evidence is in question. Something's wrong. We--well, admittedly, to be fair to the Prosecution, there's probably not enough sample left from the Bundy blood drops to take them out for EDTA testing. But they didn't do it. And I think you have to ask yourself a fair question given the way the blood evidence has been handled in this case. What would those results be? Just from this, you must question, must have a reasonable doubt about the integrity of this evidence. But when you consider the evidence, we have to take the evidence as it is and we have to reconstruct as best we can what's going on in the case as you must in a fair and unbiased way. And you consider the evidence, the whole issue of contamination arises. And it arises in a funny way because one can see that if these samples had been contaminated, cross-contaminated in a way that I know you have followed and I will review with you--and forgive me if I repeat details that I'm sure you've followed--that certainly would convince certain people that they were on the right track and maybe they wouldn't hesitate to tamper with other evidence after that to make the case look better. Could cross-contamination have happened on these facts? Before I go into detail, I would like to make two points, the same point I think I made at the beginning, Dr. Speed made.
If there was cross-contamination in the evidence processing room on the morning of June 14th when Mr. Yamauchi was handling the samples and Mr. Simpson's reference sample at the same time, were on June 13th to June 14th when Fung and Mazzola were handling these swatches, it wouldn't matter how many times you tested them after that. They all come back the same. So let's focus on what the issue is. It's what Dr. Speed was calling common mode error. In fact, if we could put this flow chart on the--you remember the Prosecution showed Dr. Speed a flow chart? It's a little hard to see there, but, Mr. Harris, if you could circle the evidence processing room. This was the final flow chart. There were two little houses that represent the evidence processing room that's drying on June 13th at the bottom and sampling on 6-14. And as you see in terms of the testing--no. Do both. Please circle both. This is an item in evidence. The circling won't be in evidence, although I was looking for it. I could have sworn Dr. Speed had circled one, but I couldn't find the examination. In terms of the work flow, that's where cross-contamination, contamination occurred in the way they handled these swatches on June 13th and June 14th. And if it happens there, it doesn't matter who else tests it or how many times. You can't validate it because if the DNA was cross-contaminated there, it's going to come out the same every time. Now--thank you. That's point no. 1. Point no. 2 is the presumption of regularity. You heard that the primary answer that Gary Sims and Robin Cotton were giving on why they distrusted the explanation of cross-contamination is, they said we must assume that substrate controls were handled in parallel with the other evidence items. Now, there's a lot of problems with making that assumption. No. 1, we know that Fung and Mazzola have no training in terms of why the substrate controls should be handled in parallel. In other words, if they handled all the wet swatches and then did the controls after, they didn't put them in a precise order, then it no longer serves as a control against cross-contamination. So they're saying we must assume that they were handled in parallel. And if we make that assumption, then everything--then we think controls worked. Well, there can be no presumption of regularity at the LAPD on how they handle these swatches, and the reason that they are not entitled to that presumption and the--well, there's, no. 1, Mr. Simpson is entitled to the presumption of innocence. But, no. 2, no. 2, we have proven that they're not entitled to it. Dr. Gerdes has proven it. Dr. Gerdes came in and he did an extensive study of the LAPD lab. Can we get rid of that circle? And I won't review all of what he said, but I think it's a fair assessment of this man's testimony that it is a solid, straightforward careful scientist who spent hundreds of hours reviewing data, doing an inspection, and what he found is that there was a cesspool of contamination in this laboratory. No mistake about it. Cesspool of contamination. The second thing that he proved, and you get that cesspool, how can you just assume you're doing everything right when we can prove they're doing everything wrong? The next part of his testimony that has particular relevance is the whole issue of contamination by control. If you recall, when he examined the controls, there were controls that would show that there was contamination at the extraction process; that is in the evidence handling, the per, the evidence processing room stage, as opposed to later when the amplification occurs or the so-called negative amplification control. And based on this data, he made the assessment that the contamination problem in LAPD is happening in that evidence processing room stage when they're handling the samples. Thank you. So we have proven that they are not entitled to any assumption of regularity in that evidence processing room in the way they handle the samples because they are getting this contamination all the time. Dr. Gerdes' testimony I think also proves something significant in this regard. He proved that they literally don't know what they're doing. It's a shame. They do a validation study where they're processing known samples and things like cases and they give a report saying there were no incorrect typeable results observed, and that's simply not true. And I know we went back and forth about the errors they made, but you recall the testimony. Some of the errors they made on their own validation study, Mr. Yamauchi and the others, were of the kind that could create false positives, that could convict innocent people. And they didn't even note in their own review of it that they made those errors. If they're saying they could be justified, then they should have at the least said there was some incorrect results observed and these are the reasons. But they didn't even do that because they didn't--weren't even aware of it. Mr. Matheson, who admits no expertise of any significance, is the one reviewing it. He didn't notice anything wrong. Dr. Gerdes, without going into too much, talked about how they don't change their reagents in a regular way like they do at DOJ, Cellmark or any other respecting laboratory. They didn't even realize that they had this contamination problem, which is even more frightening. And you did not see a witness come in to rebut Dr. Gerdes. One would have assumed that an independent scientist not associated with the laboratory would have come in here to refute his data. And they'll talk about, well, you didn't call Dr. Mullis. That person would have come in, Dr. Mullis could have been a surrebuttal witness. It didn't happen. I'm kind of surprised frankly--
MS. CLARK: Objection.
THE COURT: Overruled.
MR. SCHECK: Now, they're going to say that or have said--and what have they said about Dr. Gerdes so far? He's paid money. He's not a forensic scientist, not qualified to review a DNA laboratory. Well, I think you're going to reject that for good reasons. He's reviewed 23 forensic laboratories, the work of them. He's visited seven laboratories. He plainly knows the literature in this field. He demonstrated that on cross-examination by a very fine lawyer. They couldn't ask him one question about an article he hadn't read or assessed. He's a microbiologist, which is particularly important training. I'm sure some of you know that from your own work, and that is a person who is a student of how contamination occurs, bacterial contamination occurs, clean methods, sterile methods. He has a Ph.D. in this field from UCLA. This man--his lab is accredited by a number of organizations in paternity testing, disease diagnosis, organ transplants, bone marrow transplants. Many organizations inspected, accredited his laboratory. He understands these procedures. This man deals with life and death every day, every day with DNA testing. The nerve of them to say, "You're not a forensic scientist. You can't assess a DNA laboratory in how they handle the samples there." That's audacious. That is not worthy of your consideration as an answer. Put on a witness, show data, get a self-respecting scientist to come in here and refute what Dr. Gerdes said. They couldn't do it. They wouldn't do it. They can't do it and that's why you heard no one. Because he's right. And the lab--and it's terrible. You could see they were training each other, Yamauchi and Erin Riley. They had no Ph.D. brought in to construct this place. That's not right. That's not right. You're citizens here. We are entitled to more than that. You can't run a lab like this. You can't then get up here in closing argument and go, we have a sloppy lab. We're dealing with life and death. Just like these transplants, we're dealing with life and death. It's too late to say now, ignore all this. You can't. Now, they're going to say he's doing it by medical standards. It's too high. You can't judge a forensic laboratory by the standards we use for medical DNA. But we went through this and we know frankly that forensics is more challenging. In medical applications, known samples, clean samples, unlimited amounts, they're not degraded. All that occurs in the forensic situation. There's no justification for saying the standard should be lower. And even under a forensic standard, whatever that might be--and frankly, these are the standards and, you know, they're not coming close to this book. Even by those standards, Dr. Gerdes offered a conclusion which I think is not unreasonable in the evidence and stand unrefuted; it should have been shut down. And that's what they're asking you to accept. But it goes further. You know, Miss Clark said--and I frankly think--I assume she is going to be answering all this in rebuttal. It is not--after all we went through with this DNA evidence, it's not enough to say to you--because you know a lot about this now--to say, oh, they're saying something about flying DNA caused cross-contamination. Flying DNA. That is not the contention. The contention is specific. It is in the evidence processing room. It is in the way these samples were handled. It is in the kind of lab they deal with. Can we have the next slide, please? Now, we know--and I know you know what this is about. When you take the swatches and you put them in plastic bags and you cook them for seven hours, you degrade the DNA. And as we went through it, Dr. Cotton admitted it. Gary Sims admitted it. Everybody admits it. It's fundamental. You can degrade the DNA so there's none left that's detectable. And if you cross-contaminate it with another sample from a reference tube from high concentration DNA--and remember, we're not talking about very much. The highest amount here is an RFLP test by Cellmark of 25 nanograms. And you know, because we've been through this, that is, you know, such a small amount, less than a drop of a very small speck can create the 25 nanograms of high molecular weight DNA. You know that now. I bet you before you came into this court, you never ever thought you would be literate in this. But you are. You know this now. Okay. Next. No. No. That's not it. Oh, yes. Now, there's an issue of risk factors, and you have to assess what was handled here in terms of what is an acceptable or an unacceptable level of risk. Now, we--you remember all these logos, and I won't go through all of them. But handling multiple swatches in a hurry, handling samples from both crime scenes at the same time, not changing gloves, not routinely between samples, not changing paper and washing down between samples, when you scrape the swatches out of the tubes creating aerosols, all these things create risk of cross-contamination. All these things Gary Sims told you, their witness, were wrong. But the single worse thing that was done, the cardinal rule of handling these samples in a DNA lab is the one in the upper right-hand corner, and that is handling Mr. Simpson's reference tube at the same time that you are processing the swatches and the glove. That is the biggest no-no that forensic labs have learned from bitter experience as we'll discuss in a minute. What happened in the evidence processing room that morning? We know that Mr. Yamauchi says he got the sample at about 9:00 from Mr. Fung. And on cross-examination, he said something that's really remarkable. Do you recall this? All of a sudden, he said, "I remember now. I opened up the tube, and the blood spurted up through the chemwipe and it got on my gloves." Now, he was a little vague about what he did with the gloves. He doesn't remember whether he put them in a bio-hazard bag right in the evidence processing room or got out and went to the serology room and got rid of them there. But all of a sudden, we now know there was a spillage of blood there. Now, that is extraordinarily significant because there's plenty of high molecular weight DNA in the smallest drop if you get it on your gloves or if you don't change the gloves. And frankly, I think there's no reason to believe he did, to contaminate these samples that we know are degraded. And it's so easy to do that and not be aware of it, and it's so easy to do that when you're in a hurry, and it's so easy to do that when you're only out of training for six months and you're in a tough position, and it's so easy to do that and not really be aware of it, so easy to make that kind of mistake when you really haven't had the training, so easy to do it when you're handling 21 samples that morning in one day, something that an experienced technician like Gary Sims tells you it takes days to do, so easy to make that mistake and cross-contaminate these samples. So easy. What's most important is that there's an unacceptable level of risk. You cannot accept this presumption that it all went right beyond a reasonable doubt. There's no way. Now, interestingly, when he says even by his testimony that he opened up the tube, the blood spurted out--let's give him changing the gloves, although there's no real reason to accept that frankly. There's still, by his own admission, going to be blood on that table, blood that you can swipe with your gloves or your hands. And it doesn't make--take much to do this transfer. He didn't wash down that table. There was no paper there that he changed. There's blood on the table. A fair inference. Now, the next thing that Miss Clark said--and I don't know if she was listening to the evidence that carefully in this phase of the case to be frank. She said, "Well, if there were contamination, if there were DNA flying around from Mr. Simpson's sample, then we would have seen proof somewhere else that his blood had contaminated other samples. That's what we would have seen." Well, there was. On June 15th, if you recall, a second set of samples was handled by Mr. Yamauchi. He had the reference tube from Nicole Brown Simpson, the reference tube from Ronald Goldman and he had item no. 12, which were the three blood drops picked up at the foyer in Mr. Simpson's residence. Those were the last drops picked up that day. They were the ones that were last put in a plastic bag, and Gary Sims has told us those were the ones that had the highest DNA concentration of any of the samples. Item no. 12, they are the one that got an RFLP result from Cellmark. So we know that item no. 12 is high concentration DNA. We know that item no. 12 was being handled by Mr. Yamauchi on June 15th with the reference samples of Goldman and Nicole, which were also high concentration samples. And Dr. Gerdes showed you how at LAPD and then on the polymarkers at Cellmark and then at DOJ, we got typings that were consistent with cross-contamination from item no. 12. And all the controls on those second days, those negative controls are clean because, as I'll discuss in a second, we've already proven these things happened with negative results; being clean, you get this type of cross-contamination. So this was proof that Mr. Simpson's DNA, by sloppy handling, was cross-contaminated and type lab after lab. And you heard that on cross-examination. Mr. Clarke didn't even confront Dr. Gerdes with this board. And, you know, he's a fine lawyer and he knows this subject matter well. He didn't cross him on it because they can't touch it. In order for this to be true, the only thing they can say is, well, there was an extraordinary series of artifacts that accounted for some of it, but it didn't account for this polymarker typing. That can't be an artifact. It's proven--thank you--and not refuted. And I should say one more thing in passing I forgot to mention. That when Dr. Gerdes showed you his study of cross--of contamination at LAPD, when you have these negative controls, you can have contamination in the negative controls come up clean. In fact, in the instances where he saw contamination, 26 percent of the time, the negative controls were clean. And there's reasons for that, because these negative controls are not always going to pick stuff up. And you saw it right here. There's proof. Now, there's one other point to be made about this issue of cross-contamination at the LAPD and that evidence processing room. We can't be anymore specific about it. There's no flying DNA. And that is, you have to have appreciation of how mistakes can happen with this technology. And we learned something about that from Dr. Robin Cotton. If you recall, the California association of crime lab directors gave a proficiency test where they used degraded samples in 1989. And in this test, they gave samples to Cellmark and to other labs, and they were false positives and Cellmark got two false positives, the first and the second time. You remember what Dr. Cotton told you about what they learned of that? When they did these tests, the second one in particular, the way that they got a false positive through cross-contamination is that they had a degraded sample. And the CACAD study is the only one where they're really sending these labs degraded samples just like here. It's a degraded sample. That creates a risk of cross-contamination, when you degrade out the initial DNA. And the only thing--you recall this. The only thing they could isolate is that they were handling the reference sample at the same time they were handling the degraded sample. And what was interesting about her testimony is, she testified that they had a witness in the room. In other words, when they were doing these proficiency tests, they were witnessed. Each transfer was witnessed by somebody standing right there. And all they could reconstruct, all they could reconstruct at the end was that they had made a mistake. This discussion started at 27517. Mr. Neufeld was asking: "And you determined that it happened at some point during the extraction process? "Yes, in dealing with the sperm fractions. "But even to this date, Dr. Cotton, would it be fair to say you don't know how the accidental contamination occurred during the extraction process? "Yes, that would be fair to say. "Question: And would it also be fair to say this cross-contamination, this accidental cross-contamination happened in spite of the fact that all of the sample transfers were witnessed by a second person to make sure no errors occurred?
"Answer: You are exactly right." Now, just think of the analogy. This is 1989. Actually, the second one also happened in 1990. This is when Cellmark was starting out. And even when they started out, they had far more qualified personnel than anybody that came in here from the LAPD. And they got a degraded sample and they handled the reference samples at the same time, and they still can't figure it out, that that's when the cross-contamination occurred. So it happens. And it happened to a much better lab than LAPD and it happened when they were just beginning, just the way LAPD is just beginning here with far less trained personnel frankly. So don't come in and tell us based on this evidence that it's unreasonable to suggest that there was cross-contamination, because all the evidence really, all the rational inferences point in that direction, that there was an unacceptable risk of it, and we have proof that it was going on with those samples from June 15th. Now, this leads me to a discussion briefly of numbers. We saw a lot of numbers in this case, and one of those numbers is--the judge has instructed you is what I guess is being called the "Random match probability." That is, what are the odds that somebody coincidentally has the same DNA pattern that they may find in some sample. And some of these numbers are pretty staggering. These are just frequencies, you know, one in a billion one in a trillion. Now, there are frankly some problems with these numbers. Dr. Weir, who came in here and testified that he's absolutely 100 percent right and these people are just wrong, then offered you numbers which he had to admit were wrong and inflated and biased against the Defendant. And Dr. Cotton, using Dr. Weir's methods, has come in here and told you that the database for a five-probe match at Cellmark for an African American is based on samples they got from Detroit. And in terms of how many people have been tested on all five probes, you get that it's a group of people from Detroit and just two of them. So there is some problems with these numbers. But let's put them aside because they're really, in a sense, irrelevant to the main issues in this case. There are problems with them and I don't think that you can just accept them at face value. But to find many reasonable doubts, they're really irrelevant. And the reason is that the issues in this case, as I'm sure you've realized, are, how did blood get on these samples in the first place, who put it there, did they get there through contamination, was there laboratory error, was there corruption, contamination of these samples? That's the issue. So the numbers really are irrelevant they're just telling you frequencies about samples, but it doesn't answer the question. Now, the judge has told you that laboratory error in these random match probabilities are a different phenomenon. They are. They are different things, and you know that from your own common sense. Let me give you a simple analogy. Let's say that we're trying to figure out the odds of somebody getting killed when they're walking across the street. There's lots of different ways that can happen. You could get struck by lightening, and the odds of that happening are probably like some of these random match probabilities, one in a trillion. On the other hand, if you're walking down the street, across the street and it's a busy thoroughfare and you walk out in the middle of traffic, the odds are greater you'll get hit and killed. If the cars are moving at 60 miles an hour, 70 miles an hour, the odds increase. If you walk out in the middle of the block, the odds are getting greater. If you're walking against the light, the odds are getting greater. The chances can be almost certain that you're making a mistake. So what you have to look at in assessing laboratory error are risk factors. And we know that the risk factors in the evidence processing room are unacceptably high as Dr. Gerdes told you, unacceptably high. So if we could review. Are the Bundy blood drops cross-contaminated? We have to look at the history of this lab. A cesspool of contamination, unrefuted. The contamination, as Dr. Gerdes says, is localized in the evidence handling, exactly where it looks like it happened in this case. The risk factors in that evidence processing room are unacceptably high. We have contamination from that reference sample board on June 15th of Mr. Simpson's blood going into two reference samples with the controls being clean and then we have the whole issue of Mr. Yamauchi spilling the blood. It's reasonable doubt. Now, I'd like to turn briefly to the hair and fiber evidence. You heard from--you know, Miss Clark can say it's his hair or it's his fiber. But as she had to say in her closing, that is not what the testimony was from the witness because hair and fiber evidence, as Mr. Deedrick pointed out, as we all know and as Dr. Lee pointed out, is weak association evidence. It ain't DNA. It is weak association. We are talking about broad similarities. You can't even say the word "Match" when you're talking about this evidence. It is really evidence by way of exclusion. You have to--they can't come up with a number and say this hair is--the odds of this being someone else's hair is 1 in 20. Can't even say that. It's just a question of looking at as many similar hairs to see if you can get an exclusion from a particular race. So there's no database. There's no number. It's just similarities. It is association evidence. Nobody is telling you that this is definitely somebody's hair or some particular fiber. Therefore, what you have to do with this kind of evidence, as Deedrick and Dr. Lee mentioned, is that you have to exclude other frequent visitors, for example, African American visitors to the Bundy condo area if you're doing a serious assessment of whose hair, man or woman, older children of Mr. Simpson, younger children of Mr. Simpson, others who were there could be contributors of the hair. Fiber is no different. The same general class characteristics. A big deal is being made about blue black fiber from some unknown source that's found on three objects and maybe more. Now, we have Mr. Deedrick talking about the blue black fiber at 35338, lines 12 to 17.
"Question: Do you remember what you told us in your direct examination about the amount of cotton fiber that is manufactured in the United States every year? "Answer: Five billion pounds. "Question: Okay. Do you have any idea whatsoever of the number of fabrics of blue black nature that looks black to the naked eye and were distributed in the Los Angeles area in the past five or 10 years? "Answer: I have no idea." You want to say 10 percent? What's 10 percent of five billion? Look around the courtroom. How many people are wearing blue black cotton fibers? Maybe some of you right now. So you have to look, when you're assessing this evidence, at background. Who could be contributing these hairs and fibers? And you can't say anything certain at all about the similarities. It's weak association evidence. We know that Mr. Simpson is a frequent visitor to the condo area. You would expect to find his hairs around there. You would expect to find Bronco fibers around there, not just from Mr. Simpson, but from Nicole Brown Simpson, from the children, from others who were in and out of that Bronco that's used as a utility vehicle. Just as a simple illustration, Dr. Lee--this is a soil exemplar that the LAPD took. They never made an assessment of the fibers. Here is hair and fiber that you just see in the soil from that closed-in area, okay. It's around everywhere. We shed them. It comes out. It's all around an area where people live. Now, one interesting character that could be a source of all these is Kato the dog. After all, Kato the dog is probably in that closed-in dirt area, one of the most frequent visitors, and Kato the dog is carrying hairs from all the significant members of the family and he's carrying Bronco fibers with him because he's a dog that shed. I have a sheep dog. You all have dogs. You know that is a phenomena. And Kato the dog, as we'll see in its significant point, is at the crime scene that night. In terms of assessing hair and fiber evidence, you have to look at the issue of contamination, particularly when you're talking about hair and fiber flying all over the place in a crime scene. I mean, this is where the issue of contaminating a scene is of critical importance. And how did they handle this scene? We have the issue of the blanket. I mean, this, as Mr. Fung admitted, was colossal stupidity. To take a blanket that people--Mr. Simpson and others with Bronco fibers, hairs from all kinds of African Americans on that blanket and then throw it out over the crime scene, over the bodies, over the evidence items, everywhere is asking for trouble. But perhaps the most significant problem here--and it's the one they haven't come clean on in this case at all--is dragging around the bodies. This was--in terms of handling a crime scene, this was really an incredible thing, because if you're trying to make associations about hair and fiber evidence from clothing of the two victims and what might have been in the dirt area, there were people shedding these things, and you drag the bodies all over the place over the evidence that you're testing. That--there's no integrity to that. It's ludicrous. And nobody ever came clean and said who it was that moved those bodies through the envelope and the hat. And we all know that happened, right? You have to admit it happened when they pulled Mr. Goldman's body through lord knows what was going on. It was moved and replaced, and nobody has ever come back and told you who put the envelope back in that different position, who put the hat back in a different position, who put the glove back. Nobody's ever come in and told you.
And they certainly didn't investigate. We'll talk about that in a little bit more. But we put in concrete evidence this kind of cross-corruption was going on in the hair and fiber evidence. Can we have the next slide? These were slides that were put in evidence by Mr. Blasier, if you recall, and this represented something really interesting. It had to do with bloodstains that--blood evidence that you found on the clothes, the dress of Nicole Brown Simpson on the left and the shirt and the jeans of Mr. Goldman on the right. And if you recall, there was not only blood evidence stains on the bodies themselves, but there was also in the area where they were taking controls. You know, you try to find an area where there's no bloodstain, you take a control, and those controls came up showing evidence of Nicole's blood on Ron's shirts, vice versa. Can we have the next slide?
MS. CLARK: Could we have the exhibit number for that, your Honor?
MR. SCHECK: What is the exhibit number? I'll get you that. These are in evidence. The summary of the results were on those clothing--go back, please. Summary of the results, there were 23 stains tested. 16 of those stains showed carryover. And very interestingly, if Mr. Simpson supposedly committed these murders and his hand was cut and he's struggling here, no matches, no evidence of his blood on this clothing. But there is carryover between the clothing. Now, what does that mean? That means frankly that the bodies were dragged through the crime scene and blood from Nicole Brown Simpson got on Mr. Goldman and vice versa. And if that happens, that's how the fibers can get carried over too. And Miss Clark went on--I think she even put some little pieces of puzzle up there. She went on and on with this rank speculation where she was saying, "Well, we know that it was one killer, and we know it was one killer because we see some fibers that came from Nicole's dress and got on Ron's shirt or jeans and back and forth and that's how we know one person was going back and forth between two victims." Nonsense. This proves it. This proves that the hair and fiber and the blood evidence were all coming together because they--the handling of this crime scene is a disgrace, a disgrace. They're dragging the bodies back and forth.
Okay. Now, also, it should be noted that it came out during the testimony of Miss Brockbank that the two gloves and the two hats, the knit hat and the plaid hat found in Mr. Simpson's Bronco and the Bronco carpet that was cut out of the car were all placed in the same box. I mean, the way they handled this stuff, and then they want to come in and say there's integrity of the hair and fiber evidence is ridiculous. Briefly on the hat, we had testimony about dandruff. You heard Mr. Simpson's barber say in the off season, in the summer, spring, he gets dandruff. Right after he's arrested, they removed known hair samples. His hair has dandruff. There's no dandruff in the hair in that hat. Now, if we look at the hair and fiber evidence as a whole, there are--and this is just weak association evidence. Nonetheless, there are powerful inferences consistent with innocence and these were put on slides that are in evidence. I would like to review them briefly with you. Both gloves, no hair consistent with Mr. Simpson on the Bundy glove, no hair consistent with Mr. Simpson on the Rockingham glove. That's the slide we put up. Do you know what we should have added to that slide? Very significant facts that I hope you don't forget. There was an unidentified Caucasian hair on the Rockingham glove. Did they test Mark Fuhrman? Did we get a hair exemplar from him? Uh-uh. Also--and this is a fascinating point. Kato the dog, his hair was found on the Rockingham glove. And I'd like to read this testimony to you because I don't think it was an answer that Miss Clark particularly liked, and this was in the cross-examination of Mr. Deedrick. "Question: --" and they were talking about Kato's hair on page 34349 of the transcript: "Is the finding of such hairs, Kato's hairs on the Rockingham glove, accounted for by possible contact between the wearer of that glove, the murderer, and Kato the dog either during or immediately after the murders?
"Answer: Could have. It could have been a direct transfer from the dog or, as I stated before, an indirect transfer from hairs at the crime scene. "Question: That would say where? "Answer: On the ground maybe. Would have to have been on the ground. "Question: Have to have been on the ground? "Answer: Or perhaps from one of the victims who had been on the ground and collected the hairs. "Question: And that you previously described those as being common to the under part of the dog as opposed to the tougher, the coat?" Now, he's talking about the hair. This was a soft hair from Kato the dog found on the Rockingham glove. "Answer: Okay. It may be just a matter of semantics here. When I say the under part, under the fur, under the outer coat, which could have been on the belly, it could have been on the back, but it is just the soft, fine hairs that are closer to the body.
"Question: If that dog used this shaded place to sleep or lie down on a regular basis when it was in the Bundy residence, might you expect to find some fur hairs left behind in the soil? "Answer: I would expect that, yes. "Question: And if the Rockingham glove were deposited any time on that soil, the Rockingham glove being on the Bundy soil in the closed-in area were deposited any time on this soil, might that not explain the presence of those hairs?
"Answer: It could, yes." So very simply, he's saying that this is hair from the soft under belly of Kato the dog, the kind you would expect to be shed if he were lying on the ground there, not the kind that you get if the dog sort of passed you, all right, or comes up on you as you're--they're going to probably claim fleeing the crime scene or something. It's a soft hair. It's the kind you would find on the ground in the closed-in area.
What does that mean? That means that Rockingham glove started at Bundy. Somebody took it somewhere else, and you know who that was. Let's go on to the next slide. The socks. There's no fiber on the socks consistent with either glove. And these are cashmere gloves where cashmere would easily come out and get on your hands, transfer to the socks. No fiber consistent with Mr. Goldman's clothes. And we know there was hand-to-hand combat here. No fiber consistent with Nicole Brown Simpson's clothes. Nothing on those socks. Also, we should add, no soil on those socks, no trace, no berries, nothing. Pretty interesting, those socks. Next one, please. As far as the hair is concerned, no hair from Mr. Goldman, no hair from Nicole Brown Simpson on those socks. Next, please. As far as Bronco fiber is concerned, no Bronco fiber is found on either glove. No Bronco--no fiber consistent with Mr. Goldman's clothes is found. No fiber consistent with Nicole Brown Simpson's clothes is found. Next. As far as hair, no hair consistent with Miss Nicole Brown Simpson. No hair consistent with Mr. Goldman on the Bronco. Okay. And I should add, you know, in the Bronco, what they did is not only they take out that carpet, but they went in and they vacuumed it. They vacuumed it to get all the hair and trace. They vacuumed it. And even Mr. Deedrick himself, when he was talking about hair transfer, said, "Well, the way we get transfer is when you go sit down in your car, things move on you." There's nothing in the Bronco. How can that be? Now, I'd like to move on to the crime scene at Bundy and evidence of struggle, the testimony of Dr. Baden and Dr. Lee and I guess Dr. Lakshmanan who came in here as the person for the Prosecution to try to reconstruct that crime scene. You know, there are bloodstain experts and criminalists and people like Dr. Lee out there the Prosecution could have called to come in here and try to assess this evidence for you. They did not do so. They brought you Dr. Lakshmanan working over second-generation photographs who's a Coroner to do only one part as best he could with this evidence. Now, we know, as Miss Clark indicated in her closing argument, that Nicole Brown Simpson did struggle before her death, and we know that there were defensive wounds on her hands and we know that some of the wounds to her neck showed evidence of struggle. And then we have the fingernail scrapings. Now, Mr. Sims had said that he would expect that when you did fingernail scrapings, you would find--excuse me for just a second--he would expect that there would be skin under the nails. Now, he's a fine man and a fine forensic scientist. I have no quarrel with him, but he was admittedly testifying in an area outside of his expertise when he told you--he was saying that was his common sense understanding. But Dr. Baden came in and testified about what one ordinarily finds as a Coroner with fingernail scrapings. Dr. Lakshmanan didn't dispute it. And that is that with fingernail scrapings, when you find it, you find blood under the nails, but you don't find skin because when it grabs, the blood comes up, but the skin doesn't come with it. That's what Dr. Baden says you find. That's what the textbooks say you find when you get fingernail scrapings. So you would get blood, but not tissue. So let's explore that myth right away. But now we have a problem for the Prosecution, that when they do the fingernail scrapings, they come up on the EAP system with a B. That is not O.J. Simpson's type. That is not Nicole Brown Simpson's type. That is not Mr. Goldman's type. It is some other person.
And that's what their typing result showed. And so then it doesn't fit. It can't be right. So we have to see if we can make an assessment that would somehow undercut that finding. Now, remember, when you have two conflicting reasonable interpretations of evidence in a circumstantial evidence case, you have to go with the one inference that's consistent with innocence. Now, let's look at what happened. Mr. Matheson said, "I think what could be here is that we had--" can we show this slide? "--a four-banded BA from Nicole Brown Simpson that degrades into a two-banded B." Now, you recall this testimony I'm sure and the cross-examination by Mr. Blasier and the testimony by Mr. Sims who's been doing serology a lot longer than Mr. Matheson, had a lot of experience in forensic serology. These are the facts. The facts are in the literature. This supposed degradation pattern that Greg Matheson suggests could occur does not exist. There is no literature. Dr. George Sensabaugh, all the experts in this field, that doesn't happen. Nobody has seen it. Mr. Sims, who did more conventional serology than Mr. Matheson, said he in his experience has never seen a four-banded BA degrade into a two-banded B. Never. Mr. Matheson says he thinks he recalls somewhere he saw it. That ain't good enough. That kind of maybe, maybe I saw it, that ain't good enough. Maybe doesn't cut it in a criminal case. We're taking proof beyond a reasonable doubt. This is nonsense. Now, the other thing that they're trying to say is, all right, you can put aside the EAP b because there was DNA testing of some of that material under the nails and that came back as 1.1, 1.1, Nicole Brown Simpson's type. And they think that you're not going to understand this. But you do. Because as you heard, the EAP system is a red blood cell. A red blood cell does not have a nucleus. There's no DNA in the red blood cell. The EAP typing system is something that looks at antigens on the outside of that red blood cell. So you can have blood under that nail. Small amounts of blood under that nail test out to be an EAP B, and when you get the little bed of epithelial cells under the nail or either some other things, blood, that might have come in from Nicole Brown Simpson, that can type out 1.1, 1.1. But the initial scrapings, when they duck down, they came up with EAP B. And you can't get around that and you can't try to explain it away, and they don't bring in any serologist. Now, even Dr.--Mr. Sims--he's not a doctor--Mr. Sims, the best that he could do in looking at all of that--and they finally asked him the question, 28748. He says:
"Looking at all these findings, I can't exclude the possibility that the EPA B or that might have been from Nicole Brown Simpson. I can't exclude the possibility." That is not exactly a firm statement. That is again a maybe, and a maybe doesn't cut it in a criminal case. And when you have two reasonable conflicting inferences, you've got to go with the one consistent with innocence. And that's what this evidence shows. That's fact. I'm not making any of this up. Those are facts. Sorry.
THE COURT: You want a glass of water?
A JUROR: I'm fine.
THE COURT: Sure?
MR. SCHECK: Now, could we have the board?
MR. BLASIER: Cut the feed, your Honor.
MR. SCHECK: There's the whole issue of Mr. Goldman and his struggle with a perpetrator or perpetrators. There were 30 stab wounds inflicted upon Mr. Goldman. Miss Clark told you about--well, there were cuts on his hand, his open palm. Sure. But what does that mean? If there are cuts on his hand and he is struggling with an assailant, it gets on the clothes of the assailant. Dr. Lee did an analysis of the scene based on the limited evidence that he could get, because they didn't document it in any way where you can do a good reconstruction, just a limited reconstruction, and we had multiple contacts, blood transfers in different areas of the closed-in area. And in each of these different areas where the multiple contacts occur, as you recall, there were also vertical blood drops. And the fair inference from that evidence is that there's a struggle. People are up against one area, then another area. Up against the other area, blood drops are going down. So there's a struggle in different areas with an assailant or assailants. I mean, we can just reason from facts. Dr. Lakshmanan got up--and there's a whole hypothesis here that it all happened so quickly by surprise, stealth, surprise. I mean, you can't do that. You've got to look at facts. You have got to do the best analysis, a fair inference from the facts. And the facts show that there's multiple contacts in these different areas from the bloodstain evidence by the country's, the world's leading analyst of this, whose testimony in these points stand unrefuted. There is, of course, as we've discussed, the dug-out area, particular struggle here. Even Detective Lange told you where there's--other areas where there's signs of struggle between the assailant and Mr. Goldman, soil on the socks. There's contact by the way that they're banging against the sides of the gate, such that pants are going to come in contact with--pants and shirt. Now, it's clear from the way the struggle went that at some point early on, Mr. Goldman sustained this wound to his neck and the blood began oozing down. And as Dr. Lee pointed out, he had to be standing--Dr. Baden, had to be standing vertical for some period of time because the blood could go down from his shirt all the way down his pants' leg. And we saw a lot of blood on the back of his pants. Now, if assailants are struggling together, there's going to be blood from the pants, blood from the shirt in close contact transferred to the assailant. Got to be. It's a bloody struggle. And that's what this bloodstain evidence shows. It's fair inferences from the facts. Now, the beeper and the keys. The significance I submit to you, the beeper and the keys, at the very least--put aside keys as a weapon. The significance is thrown--you know there's violence, tussling and struggling. The beeper is thrown down here and the other areas--another area of struggle, the keys are thrown down. If the keys were in the pocket, that's got to be a considerable tussle because for the keys to come out of the pocket in the other area or if the keys are in his hand, well, he is going to use that as a weapon. So you can't--you know, you can't have it both ways. It shows multiple banging and struggling throughout that area. Now, the key fact that Miss Clark conceded in her closing argument, key fact is what Dr. Baden told you about the time between the wound to the neck and the time to the last fatal wound in the chest. And this is just fact. As Dr. Lee would say, there's scientific fact, there's interpretation. We deal with fact. The fact is that this would have had to come first, the one to the neck. There's blood oozing down. And the last wound is to the chest. When the wound in the chest occurred--as Dr. Baden told you, there's only 100 cc's of blood in the chest. What that must mean is that by the time Mr. Goldman was stabbed there, his heart was compromised. It wasn't beating very hard. So you did not have the amount much more than 100 cc's of blood you would expect to find in the chest if it hadn't been the last--if not about the last wound. And Dr. Baden said from the time--just based on finding a hundred cc's of the bleeding, compromise of the heart, the time between the first stab and the last stab would be between at least five minutes, as much as 15 minutes, most reasonably 10. Now, that doesn't mean that the struggle took--the struggle went on from the first wound to the last wound for 10 minutes. What it means is--and this is what's crucial--that the assailant or assailants were there for that period of time. It could be that Mr. Goldman was subdued, was lying on the ground and they did come and stab him last and make that last wound. But we know from the facts that between this wound, the wound to the chest, most reasonably, 10 minutes. Somebody's there, at least some people are there for 10 minutes. Now, if the struggle occurs--starts 10:35, 10:50, based on scientific fact, Mr. Simpson can't be guilty of these crimes because he can't be two places at the same time, can he? Now, that time period is even, you know, longer.
They say, oh, take the five minutes. Give us, the Prosecution, you know, the inferences. Well, you can't. You know, you can't, because reasonable inference is, if it's between five and 15, most reasonably 10, you've got to take 10. You can't give them the five. That's not the way you can reason about a circumstantial evidence case. But even if you take the five, you know, something happened before that first wound some period of time. So the window, the time here that these murders took is not this incredibly quick event that is necessary for the Prosecution's time line, and that's based on a reasonable, careful scientific investigation of the evidence by Dr. Baden, one of the foremost pathologists, and Dr. Lee, one of the foremost forensic experts. This is evidence. Now, the next thing I'd like to point out has to do with the bloodstain imprints on the envelope. Oh, I'm sorry. I forgot this. Thank you very much. One other thing I should mention about the struggle, a critical point. I can't believe I left it out.
THE COURT: Mr. Blasier, are there remains?
MR. BLASIER: No.
MR. SCHECK: Where did this come from? Dr. Lee testified it is a fresh cut. You can see when you examine the clean part of the top here, or is it a fresh cut from a sharp instrument consistent with a knife? Think about that. Think about that. What does that indicate about the nature of this struggle? Mr. Goldman, one or two assailants, somebody coming towards him. He kicked. Dr. Lee testified that by the angle that is consistent with the foot being raised in the air and a sharp instrument coming down, there's kicking. And if there's kicking, why are there no bruises on Mr. Simpson's body consistent with that kick? And why didn't anybody else come in here and point out this cut on the boot? Very significant evidence. And, of course, there's the dirt on the boot, which you would expect to see, and blood on Mr. Goldman's jeans and the broken buttons, indications of a struggle there. Now, the bloodstain imprints on the envelope. Now, I know it's not Mr. Bodziak's area, but, you know, you have to consider all the evidence. And Dr. Lee I think gave us all a pretty sound education on bloodstain interpretation, enough to basically figure out and understand which bloodstains that certain deposits are made first and other deposits are made over them. And I think that that's, you know, pretty significant in terms of assessing this.
Now, the first point that I think this goes to is, you recall Mr. Bodziak's testimony that there could only be one set of footprints leaving the scene. When you analyze it, he concedes that that was based on the assumption that there was a pool of blood that all assailants would have to walk through. And I understand that he was not following all of Dr. Lee's testimony, only--I guess only 95 percent that dealt with footprints, but not the full 95 percent as I originally thought he was saying. But the point is--like you forgot about Dr. Lakshmanan. Dr. Lakshmanan offered a scenario in broad respects that Dr. Baden said could well be the case. And there seems to be an operating premise here, and that is that Nicole Brown Simpson was subdued. She could have been hit on the head. It wouldn't necessarily knock her out as Dr. Baden indicated, but might have incapacitated her or knocked her out. And then there's a struggle with Mr. Goldman and then or close to the final act, Miss Nicole Brown Simpson is leaning over the stairwell, is inflicted with the last wound to her neck and then the huge blood pool. But if you're not necessarily--and that is the assumption underlying Agent Bodziak's testimony, that if there were to be another set of footprints, it would have to be dark from the big pool of blood. It's not even--it's not consistent with what Dr. Lakshmanan said. It could have been one or two other people left that scene, somebody, without leaving tracks. They could have come out the way the police did, which wouldn't leave imprints, or there could have been partial imprints with small amounts of blood on the shoes that were not discovered because, frankly, they were not looking, as you can tell, very hard or very aggressively for anything other than focusing in on those Bruno Magli shoes. And I realize Agent Bodziak thinks very well of the photography of the criminalists at the LAPD, but taking good photographs of one's Bruno Magli shoes does not mean that was combined with--does not mean they were looking for other imprints as his book recommends that people do and do aggressively. Now, the one really interesting part of this envelope has to do with its handling. Do you recall Dr. Lee pointed out on the far right-hand corner that this is a mirror image stain, meaning that it had to be a wet deposit and then somebody folded the envelope? So the blood is wet and the envelope is folded. And then we see--could we have the next--this is what number? I'm sorry. 1348. As he focused in is what appears to be consistent with a light transfer of a finger. Next. Next, please. No. No. After. Then if you recall, there was the other print consistent with a finger. See the bottom one there? The top one is the light one. Then the bottom one, see how that's--as Dr. Lee pointed out, that could be a finger that was completely covered in blood making contact with the envelope. Now, this is a very interesting fact if you think about it because Miss Clark gave the hypothesis to you in her closing argument that Mr. Goldman was taken by surprise, dropped the envelope to the ground. So her theory is not that he kept that envelope in his hand as the struggle was continuing or that he would make the blood imprints on the envelope with his fingers. But somebody who's interested in that envelope, somebody appears to have opened up that envelope and created a bloody smear on the one lens we have remaining. Somebody made the mirror image fold on that envelope. Somebody was looking in it for some reason who had been in a struggle and left a bloody imprint of fingers. It's interesting, isn't it? And it is consistent with--well, it is inconsistent certainly with the Prosecution theory of Mr. Simpson committing these crimes and consistent with others.
Now, let's discuss the imprints. And the hour is getting late and there's lots to cover here, but let me just briefly go through that imprint evidence on a piece of paper, on the envelope and on the jeans and what Dr. Lee found on the walkway. And let's just piece it through simple step by step. You go back, you look at the imprints on the jeans. And Agent Bodziak did not say that he had any expertise in imprints on fabric and agent Deedrick said this was the first time he had ever done anything like this before. But I submit to you what Dr. Lee said about the imprints on the jean is simply this. And I think if you look at those parallel line imprints, you'll see they can be consistent with kicking from the shoe. When they're bunched up, all right--there was some imprints Dr. Lee said is accordion effect, just the bunching of the jeans, but it's three-dimensional. You bunch up the jeans, an imprint occurs on it, and that's why some of those lines are not complete or completely parallel to that three-inch heel print in particular that we went over with Agent Bodziak. It could be consistent with that kind of an imprint, but I really think it's inconsistent with. And agent Deedrick sort of gave it away, that he had never done this kind of analysis before. This is parallel lines from Mr. Goldman's shirt because they were talking about a swipe. And you also know what a swipe is. A swipe leaves that smear. You can't swipe and leave those kinds of patterns like that on the jeans. It doesn't make any sense that there's this flailing and hitting of this fabric and it's going to create those kinds of imprints. It's more consistent with a flat, hard surface hitting the three-dimensional folded-up area. That's the jeans. Now, with respect to the piece of paper and envelope, we can have a debate about whether or not based on this evidence, you know, there's imprints before there's a lot of blood on the scene, the early imprints. There's no border, but that's not necessarily consistent with there not being a shoeprint. Parallel line imprints, Agent Bodziak didn't look very hard for these kinds of parallel line imprints. Put that aside. Put that aside. Let's go with what they say. Agent Deedrick said, "Well, maybe that's from Mr. Goldman's jeans." And then he conceded the more reasonable interpretation would be that Mr. Goldman fell once on the envelope area that's his jean imprint and then again or maybe once at the same time on the piece of paper out on the walkway.
Well, that's not exactly consistent with the Prosecution's theory about how these murders occurred, is it? So I don't think that gives them any real help here. And as to those shoeprints on the walkway that Dr. Lee discovered on June 25th, one is definitely a shoeprint, no question about it. The other one, Agent Bodziak says, consistent with footwear. Well, you know, they haven't eliminated the police or the photographer. It's just an example of what you could do. He got to the crime scene for 20 minutes and did the best he could under those circumstances. It is illustrative. It is not really explained. But you don't even need that when you consider the full scope of the evidence, that two people could have done this crime on these facts as a fair inference. A lot of evidence to support that proposition.
THE COURT: All right. Mr. Scheck, would this be a good time?
MR. SCHECK: Sure.
THE COURT: All right. All right. Ladies and gentlemen, we're going to take our midafternoon break at this time. Remember all my admonitions. We'll be in recess for about 15 minutes. All right. Thank you.
(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. Deputy Trower, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have now been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Scheck is making his summation to the jury at this time. And Mr. Scheck, you may continue.
MR. SCHECK: Thank you very much. I realize these have been long days and I really appreciate the patience and the way that you followed. I was inaccurate in a statement I made to you and I want to correct it immediately. That had to do with the hairs found on the Rockingham glove. Detective Fuhrman, in checking the transcript at 32493, was in fact eliminated as the donor of that Caucasian hair and that was an inaccuracy on my part. And I have tried very hard to key things to areas of the transcript, and obviously Miss Clark I'm sure will bring any inaccuracies to your attention, if there are any, and try very hard to do that, and you should have the testimony reread. I shouldn't misread things like I just did. Another thing I forgot to mention about the Rockingham gloves, however, both gloves, and that is they found a limb hair. This Caucasian hair is not accounted for to anybody, but there is a limb hair that was found inside the glove. Now, if Mr. Simpson had had these gloves for four years, as the Prosecution contends, then there should have been more limb hairs. One thing that you saw, and when you saw his hands, and that is, is that he has a lot of hair on this part of his fingers, (Indicating), and if these gloves had been worn for four years you would expect to find a lot more of these limb hairs inside the gloves, but you don't find that. So that is another point to consider that I left out. One quick point here on--do you remember Miss Clark talked about a blood drop that landed on Mr. Goldman's boot, no. 78, that on RFLP testing turned out to be a mixture of Nicole Brown Simpson and Ronald Goldman. And Detective Lange had offered a theory to you that this mixture could have occurred because one knife had committed both of these acts and there was a combination or a mixture on the knife and the blood drop fell and hit Mr. Goldman's boot there. Now, the first point to be made about that is the photograph you were shown was Mr. Goldman's boot being lifted up at the time that his body was taken over into the walkway and the Coroners were taking pictures of him. If you look back at the photographs and you see the way his shoe was configured, it would be extremely unlikely that one drop of blood could hit, because the shoe is at an angle. You couldn't have a drop that would fall in exactly that place in exactly that way, or it is extremely unlikely. But the other thing about this so-called mixture, mostly Nicole Brown Simpson and less of Ronald Goldman on the RFLP probes, is Dr. Lee addressed this, if you recall, when he pointed out the bag in which the boots were taken. Do you remember that? This was the wet transfer of blood coming through the bag here, (Indicating), when these boots are taken off and it is dragged into an area where there is blood from both victims and then the wet blood is put into the bag. Any kind of a typing that you are going to get, if there is a drop on that area, from a mixture, from the DNA test, is suspect when you are handling the in evidence this fashion in terms of getting a mixture. So that is a point for your consideration, I think. Now, what is left in this analysis is the Bronco, the Rockingham gloves, some short final remarks and you will be hearing from Mr. Cochran. The first point I would like to make, when we talk about the bloodstain patterns in the Bronco, has to do with something that Miss Clark said, first of all, about the blood drops in the foyer in Mr. Simpson's Rockingham residence. If you will recall, in her closing argument she said, and I don't know how she could say this in terms of the record, that the blood drops that were found in the foyer, you recall there were three that were recovered by LAPD, and then when Dr. Lee went back there he found another three smaller cast-off type drops. And she said, well, those drops couldn't be made by a cut on the side of the finger, comparatively superficial cut on the side of the finger; it would have to be made with a major cut or that fishhook type cut because that is their theory, right, that there is this fishhook type cut on the knuckle that nobody sees, nobody sees, no one on the way to Chicago. But Dr. Lee testified about this at page 434022 of the transcript. "Question:"--and he is talking about the blood drop pattern in the foyer. "And so if one had a superficial cut on the side of a finger and shook it in the fashion I'm doing and then"--
"MR. SCHECK: Let the record reflect I'm shaking my hand down. "Does that create the cast off pattern? "Yes, and that--would that be consistent with what you found, sir? "Yes. "And could the pattern that you found here be consistent with the superficial cut on the side of the finger? That is talking about all the drops? "Answer: It was consistent with a small volume of blood. "Is the pattern that you see here consistent with a major cut?
"No." So you have Miss Clark's speculation and then you have directly contradictory testimony by Dr. Lee, and there is no testimony in the record that supports her contention, it is mere speculation on her part. She is not a bloodstain expert. And I submit to you, you have to take the sworn uncontradicted testimony. Now, we know from what was said to Dr. Baden that in the course of getting things together on leaving, Mr. Simpson sustained a cut going into the Bronco, retrieving materials on his way out packing, and that it is the position of the Defense, that the bloodstains that you see and--well, briefly, why don't we take out that board and I will come back to it. This is the Prosecution's bloodstain pattern and the Bronco board, if you will recall it. Now, there are bloodstain patterns in the handle, instrument panel, console, of course, and then these are other items, that is, the footprint area and on top of the windowsill, okay? The windowsill is somewhere around here, (Indicating), that are consistent, everybody agrees, with a cut to the left hand of somebody getting into the car sitting down looking for something, consistent with our theory, consistent arguably with their theory. But then when you start looking at the rest of the bloodstain patterns, you have to start asking which interpretation is reasonable?
Now, the first point that has to be made--take this down for a second--is that of course initial deposits would be made by Mr. Simpson that evening and then somebody else was in that Bronco. Now, we know someone else was in that Bronco, and that has been, I submit to you, demonstrated by the evidence. Let's take a look at this picture. Mr. Cochran has already reviewed with you the testimony of Mark Fuhrman at the preliminary hearing, and you heard it on videotape, where he said he saw the--found blood in the Bronco, a bit of a Freudian slip, but I submit to you one of the most significant moments has to do with the testimony of Dennis Fung and the blood--bloodstain patterns on the doorsill of the Bronco. You recall that Detective Fuhrman testified at the preliminary hearing at this trial that he observed four brush mark bloodstain patterns on the doorsill of the Bronco that he could observe when the door was closed. When Mr. Fung came in, he circled these pictures, and if you will recall his testimony, the bottom circle closest to the door, that is only one stain. He said that that stain could be observed when the door was closed, but the other three stains that are represented by those other two circles could only be seen when the door was opened. Could only be seen when the door was open. From their own witnesses, evidence, he was in the Bronco and it only makes sense that he would go in that Bronco. And how much credibility do you really put in this man's testimony? But here is evidence that he was in there. Do you know what other evidence there is? There is one of the most interesting facts, and it is hard scientific evidence that supports our position with respect to the bloodstain pattern in the Bronco, the steering wheel. You recall that the typing on the steering wheel was 1.1, 1.2, a genotype consistent with O.J. Simpson, and 4. Who is the contributor of the 4 allele? That was an issue, and much was made of it, on the--in the case, was it not? Lots of cross-examination, lots of highlighting of that 4 allele in the steering wheel. And the Prosecution well knew that it was the contention of the Defense that Mr. Fuhrman and/or other officers had been in the Bronco. Doesn't take much to get a blood sample or you just take a swab and the testimony is you run it through somebody's mouth, you can do a quick DQ-Alpha test. What is Mark Fuhrman's genotype? We know that Andrea Mazzola and Dennis Fung, just like you do eliminations, they--their genotypes were taken so we would know what they were. They are not consistent with the 4. None of them has the 4. They are eliminated. Why wasn't Mark Fuhrman eliminated? Why didn't they take exemplars from the police on this? Why? But I think that a fair inference consistent with innocence, which you are under oath obliged to take. You must consider that Mr. Fuhrman was in the Bronco and the evidence is that a picture, 4:30, around 4:30 in the evening, he is pointing at that glove at Bundy, walking through a pool of blood. Now comes into that Bronco, the vicinity of that Bronco, the area of 5:00 in the morning, right, initially, then go out and does his circuitous little trip where he finds the glove and is alone for fifteen minutes around 5:15. Now, there is very interesting testimony from Dennis Fung at page 21438 of the transcript about the ground and he is talking here about Fuhrman and he is talking about an arriving--excuse me--Vannatter, he is talking about arriving--arriving initially at the Rockingham location and he talks about how he was shown a red stain on the driver's door of the vehicle and a blood trail and: "Question: Okay. Did you notice anything about the temperature at that time or the weather? "Answer: It was fairly cool. What about the lawns? Did you notice anything that looked like it could have been dew on the lawns? "Answer: I did notice there was some, that the grass was wet. "Question: All right." So Fung tells us that the grass is wet, but we know that there is no dew. We introduced into evidence under 1280 the weather, and when it was introduced--and you can take this back into the jury room. You can examine the areas that are highlighted in purple. The only thing to--that doesn't really make much of a difference to be tricky about this. Professor MacDonell explained all of this, that when you look at the time listing over here, it is standard time, so anytime you see a time you have to add an hour, but when you look at the temperature and the dew point, you are going to see that the temperature was always many degrees above the dew point, so in other words, when you look through this you will see there is no dew, but the grass was wet. And you were at that location and you noticed the sprinkler heads and the sprinkler system and right in that area, that grass area where the Bronco was parked, there was six sprinkler heads. The grass, a fair inference, was watered regularly at that location. The grass was wet. That is the fact. Now, if you have, as Agent Bodziak indicated, blood that is caked on the inside of your shoe, even if loafers like Mr. Fuhrman in the inside heel area in your shoe, and then you walk through a wet area and then you step onto the carpet, you are going to get the same kind of pattern that was testified to for the Prosecution side in terms of the fibers going into the shoes and getting out blood that would be consistent with the genotype of Nicole Brown Simpson that is found on the carpet of the Bronco. Then we have the issue of the bloodstain pattern on the console. Now, let me be precise, because when Mr. Cochran was showing you about the seven/tenths of a drop of blood, I just want to make sure that I saw some--even the Prosecutors with a quizzical look--but that happened, I think you will recall, at the very end of the trial, and that was the testimony of Gary Sims. You will recall that he came back, he was testifying about the RFLP tests and the combining of all the stains, and I asked him a series of questions about combining all the stains, that is, the collection on June 14th from the console of 30 and 31, then the August 26th sample, 303, 304, 305. And we talked about the amount of DNA that you would get, you know, with one drop containing 1000 nanograms of high molecular-weight DNA, and then when he looked at the amount of DNA when you combined all the samples, he said that wasn't over a hundred, and: "Question: So that is one/tenth of one drop of blood?" That is what it is. A hundred nanograms. One/tenth of one drop of blood. He said--qualified he said: "Answer: Well, you have to remember with a drop of blood, for example, if you were testing liquid blood, that is not the same as extracting DNA out of a stain's worth of one drop of blood, so there is--you are not quite talking apples--you are somewhat talking apples and oranges there, but in terms of the ballpark you are talking about, you know, maybe getting three/quarters of that DNA out, so you can figure it from that."
Then I asked him a question trying to make it English: "All right. "So what you are basically saying to us is maybe if you are just dealing with a pristine drop of blood you wouldn't get a thousand nanograms you would get 750? "Something like that. "Is that what you just said in English. "Answer: Yes, that is what I said. "Okay. "If we were to--and I mean no disrespect for that, just summarizing it. "And so if you've got about a hundred nanograms of DNA and 750 nanograms in a drop of blood, can you give me that fraction quickly? "That would be, what, about a seventh? "Answer: Something like that." Okay. So in other words, make it very, very simple-hand science, when you combine the amount of DNA and you give them all favorable inferences, Gary Sims, their own witness, says, when you look at the smears of blood on the console, it is seven/tenths of a drop. And how could that be you are saying? Let's say it is a drop or two. How could that be? Well, that is because as Dr. Lee explained, that when you have a blood drop and you smear it over a non-absorbent surface, it smears, so it looks--small amount of blood can make a big smear. And of course Mr. Goldman's contribution to that seven/tenths of a drop of blood is at the most thirty, forty percent. That is very, very, very little. And so then you have to ask yourself does this make any sense? How could so little--even if we assume, you know, how could so little be there? How could so little be there? You know, Miss Clark was trying to say, well, this is how the blood got there. We know the Rockingham glove had a lot of blood, mostly from Mr. Goldman, some from Nicole Brown Simpson, and that was somehow placed on the side of the console, so that is why we get the little amount of Goldman's DNA that is on the console. That is their theory. Well, that is consistent with Mr. Fuhrman placing the glove in there. It is consistent with even Mr. Fuhrman having handled the glove and getting blood on his sleeve and just searching around the area for one of the other police officers and just getting a small smear of it with his sleeve on the console. That is consistent with this evidence. And you know what isn't consistent with this evidence? Think about it. What are they really saying? If Mr. Simpson had committed these murders and he grabbed the glove, as they are saying, with his open left hand, all right, and placed it on the side, well, then in getting into the car why aren't there mixtures on the window, right, on the window, on all those other drops? Everything else, all those other bloodstains. There is no trace of--of blood from either of the victims. There is no mixtures. Wouldn't there be other blood on the hand? And of course their theory before you, this is extraordinary, is that he is wearing these clothes that we've just been through the evidence of struggle. If there is blood on pants, it is going to be on the seat. If there is blood from the struggle with Goldman, it should be there. We know there is no hair. There is no trace. There is no fibers from clothing. There is no berries, there is nothing in that Bronco that would be consistent with somebody that had committed a violent double homicide that had been in a life and death struggle with Mr. Goldman. It doesn't make one bit of sense if you look at the bloodstain pattern in the Bronco. You have to have a reasonable doubt about that. And haven't we shown you by credible, fair and reasonable evidence that this Detective Fuhrman would have gone in that car? And by his own testimony and exposed lies from the Prosecution's own witnesses, there is evidence he was there. Those--those stains on the doorsill give you the lie, don't they? He was in that car and probably more than one of them was in that car. Now, with respect to the credibility of the evidence, very briefly, and I know you are--you followed this, we have to make a distinction. You know, in our opening statement Miss Clark actually said to you that all she was going to talk about in her opening statement with respect to the Bronco were the stains that were collected on June 14th. She didn't even indicate they were going to offer you anything from--after August 26th, because they know how terribly this was handled and that no jury could really accept the integrity of the evidence after this car was abandoned. But could we bring up the board, please? On 13--I think it is 1351; the DNA board with the--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Very briefly, you will recall this, and we made a distinction here. We have to look at the samples that were collected on June 14th and the samples that were collected on August 26th, as Dr. Gerdes suggested to you. If you look at the June 14th DNA evidence, okay, with sample 30 and 31, nothing in 30. 31 they are calling this faint 1.3 allele, where the 1.3 is showing up in the controls. And you will remember the whole business about development length and the notion of controls failing. This is it. From June 14th this is it with respect to DNA from Mr. Goldman and the Bronco. That is it. And as Dr. Gerdes indicated to you, that is not credible scientific evidence. Of course they are offering you evidence that was collected on August 26th after this vehicle was literally abandoned, after the no special care hold had been taken off it, after there was a theft.
Now, Mr. Meraz, he wasn't the world's most credible witness on the issue of the theft, but I really think that is besides the point. No. 1, he is stealing, he is inside that car. What is going on? He didn't see blood. But you don't have to accept Meraz. What about Detective Mulldorfer who is investigating this? She doesn't see blood. And then there is Mr. Blasini. He doesn't see blood on the console. And we know that there is all kind of people allowed into this vehicle, and probably more disturbing than anything else is Detective Mulldorfer indicated the rules are violated and there is no record kept of any authorized police personnel, of any police personnel going in and out of there. They could just go in and out and no records were kept and nobody would know period. And all of a sudden what we have on August 26th, when the car is finally brought in, and Miss Clark said it was--she must have misspoke when she tried to imply that the inspection of the Bronco was at the request of the Defense. Those are not the facts. The facts are that they brought it in, they allowed two Defense people to observe and then Michele Kestler looks in the vehicle and there is a photographer that was brought down from life magazine at the behest of the police commissioner to witness this grand examination of the Bronco, and low and behold, they find as much blood on the console on August 26th as there was on June 14th. And then when they do the DNA testing patterns, they find out only Mr.--traces of Mr. Goldman's blood, but Nicole Brown Simpson's blood in those same areas. That is awfully odd. So the integrity of the evidence again is in question here in terms of what you can accept beyond a reasonable doubt, but even if you are willing to look aside from that, and I don't really think that one can in fairness, I think that the Defense version of how the blood got there and the bloodstain pattern in the Bronco is far more plausible than the Prosecution's version. It just doesn't fit. There would be mixtures on all those stains, according to their own theory. There should be more blood in the Bronco, given what occurred in this case. The bloodstain patterns don't make sense, do they? They really don't. Nor does the hair and fiber in that Bronco. Now, let's talk about the glove. The first point to be made about the glove is an integrity issue, and that is that you will recall that when Mr. Yamauchi opened up the reference tube in the morning and spilled out the blood, the first thing he did after that was this examination of the Rockingham glove, (Indicating). And as you recall, he was putting his initials in, he was doing all these pheno testing, these manipulations, all in the wrist area of the glove and manipulating it. There is so little DNA in these few areas here from the D1S80 tested, minuscule nanogram amounts, very, very small, consistent with a small sample handling transfer from Mr. Yamauchi, and this alone I think can explain the small amount of DNA on the glove. But of course under the other scenarios, the competing scenarios of the Defense and Prosecution, if the Rockingham glove was up against the side of the console, that certainly would of course explain a small transfer of Mr. Simpson's blood into the heel area of the glove. But you know what doesn't make sense? What doesn't make sense, what doesn't make sense is their theory. First of all, the tight glove is thrown off from the left hand in the course of the struggle, but they are saying that with a cut--a bleeding cut, the fish hook on the knuckle which nobody sees on the way to Chicago, and blood on this hand, (Indicating), the gloves are taken off. Can they really suggest to you the gloves are taken off at the wrist? I'm from back east, Brooklyn, you know. I wear a lot of gloves. You may not have as much experience, but think about it. You don't take gloves off like this, (Indicating); you take them off like that, (Indicating). And you know what? That is exactly what the criminalists were thinking.
That is what Gary Sims was thinking. Even Mr. Yamauchi was thinking that because most of the initial DNA testing all was done looking for blood on the fingers, top fingers of the glove, because that is all that makes sense. And there was nothing there and that has got to give you, I would submit, a reasonable doubt. So what I've tried to do in my remarks is review with you essential pieces, circumstantial evidence of the Prosecution's case. And we don't have to do that. We don't have the burden of proof in this case. And each essential piece, I think it is fair to say, there is a reasonable doubt and some, some of these are so profoundly disturbing in terms of the manufacturing of evidence in this case, that I'm sure you really can't abide it, not in this country, not in this democracy can we allow dishonest manufactured evidence to lie at the heart of a case like this. It cannot be. You cannot trust. I mean, you cannot go back and say, well, maybe they planted evidence on the glove. Maybe on the back gate. Oh, there is blood missing. Big deal. How can that be a big deal? That is--many, many reasonable doubts imbedded in all of that, but you know, there is a fourth C, contaminated, compromised and corrupted, but there is a fourth c that goes along with how these things happened that relates to this testimony, and the fourth c has to do with cover-up, and I'm not even talking about the statements of the police officers and the cover-up of Mr. Fuhrman that Mr. Cochran has discussed with you so eloquently in the last two days. Let's just talk a little bit about the criminalists and what you can view in terms of that evidence and how that affects on their credibility, because if you lie in small things, and some of these are not so small things, you lie in big things, and if you are trying to turn the other way and cover up real problems, real problems, serious problems, you can't abide it. Now, one I alluded to early, and I just think it goes to the heart of the hair and fiber evidence and so much in this case. And your common sense tells you they moved Mr. Goldman's body, they were traipsing around that crime scene, and we know the envelope was moved and the glove was moved and somebody put it back. And remember Mr. Fung, they actually have a form, if the scene was altered, you know, describe how, and Mr. Fung says it is not my job. We don't ask. Detective Lange, do you know? I don't know. Did anybody ask Jacobo or Ratcliffe, the Coroners? Did anybody come in and do an investigation? Isn't it important to know who is moving around this evidence that they are going to come in and make a big deal about hair and fiber and other things? Don't we have to know that? Isn't that just fair dealing with you? And how--I mean, they are covering this up. They are covering up how miserably this was handled and how the integrity of the evidence was compromised. It is as plain as day. It is an insult to your intelligence to say otherwise. Why--they have a responsibility to come in here and do that, and we looked at videos where I submit to you there is a glove on the blanket that somebody put back and then there was the testimony--you know, Detective Lange said--and if this isn't covering up I don't know what else. Well, why did you move the bodies? Why did you wait so long to bring the criminalists in? Why did you move the bodies before you collected the evidence? Because that is lunacy. And the answer was this is what you call a closed-in crime scene and in a closed-in crime scene where the evidence is close to the bodies, the first thing you do is move the bodies. That was a make-up. It was nonsense. As all the other criminalists whose came here and testified, even Mr. Fung couldn't abide that, because it is--it is covering for mistakes. Now, another one is just the whole way it went. Mr. Fung, when he testified in the grand jury and initially at the preliminary hearing, he forgot Andrea Mazzola was there with him because she was a trainee, and she played a big role in this case in handling the evidence and they wanted to forget it ever happened. And you know that is the way it was and you know when I asked him, well, was there any concern in the lab about this before you went to testify in the grand jury or the preliminary hearing? No, it is just this habit I have of saying "I" when I mean "We." It is a habit of testifying. But you know, when Miss Kestler came here she was actually asked by Mr. Neufeld was there any discussion before Mr. Fung testified in the grand jury about what went on in this case and then said, well, there was some concern that Miss Mazzola was listed on the reports as the officer in charge. And I think that tells you all you need to know. Of course they were concerned about that because they realized that the whole scene had been miserably botched and there was serious problems here with the integrity of this evidence. Then of course there was the hand-off of the envelope, and just as a quality of testimony, I mean, Mr. Fung said, oh, I wouldn't take that envelope, pick up that envelope with my bare hands, and then we showed it to him on videotape where he is picking up the envelope with his bare hands and then he goes, well, that couldn't have happened because the Coroner wasn't there. And I have the timing right and we show the videotape of Miss Jacoby walking by where he was still there. There is something wrong with the quality of testimony like this. There is something wrong when Miss Mazzola conveniently begins to close her eyes because the problem of carrying the blood vial out, sitting on the couch. There is problems with the trash bag. There is an extra problem with Miss Mazzola suddenly forgetting that her initials are on the bindles when the only credible testimony is that they were there and something is wrong, so when something is wrong, people's memories get collective and testimony comes in in funny ways. Umm, Dr. Goldman, (Sic), the Coroner, never showed up. Mr. Martz, destroyed his underlying digital data and didn't save much of the EAP. Mr. Martz stopped looking in terms of testing. Mr. Rubin stopped looking pretty early. We have an anticipated exclusion on the fingernails that they are desperately trying to change, and then of course there is Miss Kestler, can't even remember the substance of the meetings that were had early in the case about security of the samples. And then that was remarkable. When Miss Kestler--when we were talking about looking for blood on the sock and it said "Blood search not obvious" and then remember that testimony? That wasn't a blood search. It says "Blood search" right here. Well, that wasn't a blood search. I mean, some of it was remarkable. And then of course there is the Thano Peratis tape and the missing blood. There is a lot of it. I'm sure you remember more than I have just listed. Ladies and gentlemen of the jury, I thank you very much for your patience. I've tried to reason through this evidence, drawing the fair inferences as best we could looking at the integrity of the evidence, and I just think there is very little question here, is there? So much of the essential facts in this case are just shot through with reasonable doubt. There is something wrong. There is something terribly wrong about this evidence. Somebody manufactured evidence in this case. There is hissing blood. There is EDTA. There is questions, serious deeply troubling questions. You must distrust it. You have to distrust it. You cannot render a verdict in this case of beyond a reasonable doubt on this kind of evidence, because if you do, no one is safe, no one. The constitution means nothing. This cannot, will not, shall not happen in this country with you good people. It just won't. Thank you very much.
THE COURT: Thank you, Mr. Scheck.
THE COURT: Do you want to take a change over here?
MR. COCHRAN: Just three minutes or so.
THE COURT: All right. Ladies and gentlemen, let me ask you to just step back in the jury room. It will probably be about five minutes.
THE COURT: And let me see counsel without the court reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Mr. Cochran, are you ready to go?
MR. COCHRAN: Yes, your Honor, I am ready to go and ready to proceed.
THE COURT: All right. Deputy Trower, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have now been rejoined by all our jury members. And Mr. Cochran, you may make your concluding remarks.
CLOSING ARGUMENT (RESUMED) BY MR. COCHRAN:
Thank you, your Honor, Judge Ito, again to my colleagues. Good afternoon again, ladies and gentlemen.
THE JURY: Good afternoon.
MR. COCHRAN: It seems like we did this yesterday, but I won't be nearly as long this time. I'm back, as I promised you I would come back, to try and wrap up the Defense discussion of the evidence with you. You just heard what I believe was a remarkable discussion by Mr. Barry Scheck, an excellent lawyer. He may be from Brooklyn, but he has become a Californian as far as we are concerned, and he is a very valued member of our team of Defense lawyers for Mr. O.J. Simpson. And you see why. This is indeed a talented lawyer. And so he shared with you a number of thing, which I will not be redundant about and go over, you have them clear in mind. And if I were not to say anything else, there are many reasonable doubts in this case, and O.J. Simpson is entitled to an acquittal based on what we have told you. This is my last chance, of course, to speak to you, and I want to take this time to tell you again that the Prosecution, because they bear the burden of proving this case beyond a reasonable doubt, will have the opportunity to speak to you last. We may not be here too late tonight because I'm not going to be much longer and I think that more than likely I think we can probably guarantee you, this case is going to get you to sometime tomorrow afternoon, so you can kind of sit back and relax. It has been a long, long, long road to get to this point. It has been kind of like a relay race, hasn't it been, in many respects, in this journey toward justice? The Prosecution was first running with it. We then took the baton and we started running with it. We have run almost up to the jury box and soon we are going to pass the baton to you. This is how our system works. This is what makes it so great. We pass the baton to you and we will be glad. We can then sit back and watch you at work. You have watched us for a year, two or three days. Now we get to watch you. It will be symbolically watching you because we won't see you back in that room, but you know we are going to be counting on you giving both sides the benefit of your individual opinion. Now it is your time to perform. You know how you could think about us and those days when you wanted to criticize us? We are not going to criticize you, though. We are going to watch you work, and watching you work is what makes this country so great. Because it is twelve citizens good and true coming together from this community from disparate backgrounds, experience not required, citizenship, the only requirement to do justice, to do right, to right some wrongs, to straighten this out. That is what we are asking you to do, to follow the law, to determine the facts and come to a well-reasoned decision. That is what is going to happen tomorrow afternoon for you. Now, it may take one day or a hundred days, but you've been committed. I know that you will stay the course, keep your eye on the prize and do the right thing. Now, when I sit down this time I won't get another chance to argue to you or discuss the inferences, because it has to stop sometime, but Miss Clark gets to talk to you later tonight or tomorrow. And I want you again to use your common sense and remember if she raises some point, I may not be able to get up and respond, Mr. Scheck or I. If it is something that is not purely rebuttal, you may see more objections this time because we got to keep it in line, but if it is a point that we can't respond to, you substitute your wisdom and common sense as to any point. I think you know by this time we can answer anything that they would say, so I'm sure you will give her the same attention you have given us today, and I wish them good luck. In fact, let me say this: In this case we have been advocates, we have fought hard, I hope, but it is not personal. What is personal is this case. What is personal is our zeal and our desire that our client be acquitted. It is not personal against these Prosecutors. In this part of our discussion I want to share a couple things with you and clear up a couple of things, if I might. Remember I was examining Detective Lange, and it was interesting that we saw Detective Lange here today. That is interesting, isn't it? Detective Lange was here. He is the only one who can really come any more. We discussed the roles of these people. He is the only one who is going to show his face here that we can count on, but Lange says that--early on that I asked him questions about traveling around the world to investigate this case to get an idea of what resources were they putting on this case. You remember right at the very outset the reason that robbery/homicide was put on the case was because downtown they supposedly had better resources. There is some doubt about that, but they did that and they put resources, including everybody in the LAPD, they have the D.A.'s office and their investigators, they have had the FBI. They have been all over the world. You know they have been everywhere looking for Bruno Magli shoes. They've been to Italy, they've been to many of the states in the United States. And I asked them about those things to give you a scope of what they were trying to do, and you know, it is awesome, the power of the state, and at one point I worked as Assistant District Attorney, so I know about the power of the state. There was no priority to being on this side. I used to be on this side. You can be on both sides. It perhaps gives you a little different of balance and perspective. But they have a lot of power. They can do a lot of things. They have a lot of resources and they have used them in this case. So don't feel sorry for them. They have used every resource they had. If they didn't call people, there was a reason for it. It wasn't they didn't have the resources. These are excellent lawyers. They know the facts. If they didn't disprove something, if they couldn't disprove Henry Lee, if they didn't call anybody for John Gerdes, it is because they couldn't find anybody. Earlier I talked to you about Detective Fuhrman on this particular point. I wanted to make sure so that we could be as accurate as possible. This question was asked by Bailey. "There is a problem that has been brought to your attention, isn't there, Detective Fuhrman? "Answer: No. "Question: When discussing this event in the preliminary hearing and talking about the glove, your tongue slipped and you said `them,' didn't you? "Answer: Yes." In case there was any question about what we had said earlier. Mr. Scheck has covered the brush mark on the door, but what I would like for you to do is look back at your notes, because Fuhrman said that regarding these brush marks, he said he saw these marks on that door while the door of the Bronco was closed, remember? The reason why this has become so important was he was trying to say he hadn't gotten inside. Then we called Larry Ragle who said you couldn't see the ones at the top unless the door was opened. And then Fuhrman also had said that he told Fung about these brush marks. If you look at Fung's testimony, I think you will find that Fung never says that he heard that from Fuhrman. And so you know, with regard to Fuhrman, I could have gone on and on and on about lies, but that would be counterproductive after a while because you know who he is now. There is one other point I wanted to share with you about Fuhrman before we take our leave of him, is that there was a question--some questions, and counsel, at 18906, about opportunity for Detective Fuhrman and here was a series of quick questions: "When you arrived at the scene this night were you wearing a coat, a jacket of some sort?
"When I first arrived at the scene, yes. "Can you describe it? "Answer: A blue blazer. "All right. And you were wearing the trousers and shirt that we see you in with your weapon in picture pointing at the left-handed glove? "Yes, tan slacks. "Okay. "Now, at some point did you walk back to your vehicle and take off your blazer and hang it to lay in the vehicle somewhere? "Yes, sir. "Okay.
"Can you tell the court and jury about what time of day that happened, bearing in mind that you arrived at about 2:10, that is A.M.? "It would be after I was relieved from the case." Now, he is relieved a short time after he gets there. He is relieved about three o'clock, isn't he, before three o'clock? "All right. That would be close to three o'clock? "Yes, sir. "Question: And that is when you walked back to the vehicle and left the jacket and stood waiting for your relief? "Yes, sir." Now, I don't believe hardly anything he says except that it is true that in this photograph taken at 4:30 or before sunrise, the one you saw where he is pointing at the glove, he doesn't have a jacket on. So he had a jacket, went to that car by himself. There is many things in that car. This man had ample opportunity to get up to that scene.
You know, as I told you, it so stretches the credulity to believe that so neatly placed were this knit hat and this glove, were there two gloves at some point when he says I saw them. Why would you see them? There weren't two gloves. And you know it is so unusual because everything else is spread all out. This was a vicious fight. There is a beeper over here and there is keys over there, but these items are right there, right where he could point at them. It is too, too pat. So you can ask yourself those questions when you go back into that jury room. Now, in this case I discussed with you Miss Juanita Moore, a lady that I called to the stand, and I think I misspoke myself. I think I mentioned to you--I think I may have said she said that Mr. Simpson did not have dandruff, and if I did say that, I got that wrong. She said Mr. Simpson would get dandruff I think in the off season, in the string and summer when he was here, as opposed to when he was in New York. And I wanted to make sure. In looking at the transcript over the lunch hour I noted Miss Clark seemed to be amazed when Mr. Scheck said that Kelly Mulldorfer said that she didn't see blood on that Bronco, so to save her some time I'm going to read you the transcript. Kelly Mulldorfer at 38268, lines 26 through line 9, I think on 38269. "Question: And when you looked at the console do you remember seeing any blood there? "Answer: No, I don't have any specific recollection." That is the lady, the investigator who was looking at this. And so now we come to some jury instructions which I think have sine real relevance as we conclude this case, hopefully. We have already talked about a witness willfully false. We talked an awful lot and you know now a lot about circumstantial evidence, and I dare say you know the difference between direct and circumstantial evidence. We want to talk further about--and you know what happens where the proved circumstances are equally consistent, one of which points to innocence and the other which points to guilt. Where they are both reasonable, you must adopt that which points to innocence. You understand that. You understand about circumstantial evidence. So enough about this. And we have displayed this and we have talked about how this works and how it inures to the benefit of the Defendant because there is this burden of proof. But there is another instruction which I want to talk to you about now and this is one that--where the Prosecutors keep wanting to change things around and ask what we proved and what we didn't do. This is what the law is: "The Prosecution has the burden of proving beyond a reasonable doubt each element of the crimes charged in the information and that the Defendant was a perpetrator of any such crimes." There is no doubt about it among any of us, is it. "The Defendant is not required to prove him or herself innocent or to prove that another person committed the crime charged." So now if that is what the law is and the judge gave you that, why did Mr. Darden ask the question, who did this? Who committed this crime? Why would he ask you that when the judge just said the Defendant doesn't have to show anything, when we know in this case in a rush to judgment they didn't look at anybody else. That is a question he should be asking these detectives, not us. We are the ones who had to depend on experts who wanted to help out and they wouldn't accept this. How can he ask us that question? How can he ask us that question in good faith? The answer is you go ask your detectives. That is the answer. Now, you ask another question. He said, well, where was O.J. Simpson? And he says, well, you know, how does he account for his whereabouts after ten o'clock? Well, let me just talk a minute about that. He asked that question. Let me answer it for you and for him. Some of you in your former life probably lived alone. If you lived alone, if something happened between ten o'clock and six o'clock in the morning, it is real difficult, if you live alone, to prove where you were if nobody lives there with you. Isn't that true? Is that common sense? Mr. Simpson lived alone. We have done more than that. We can I think establish where he was. He was at home. That Bronco was outside. He was packing and getting ready and rushing around at the last minute and coming outside to that Bronco, getting his phone, getting the paraphernalia for that phone. That is what he was doing. He was packing, he was getting the golf bags and golf bag out of his car that was seated out there. He was getting golf shoes and whatever goes with golf if you are a golfer. That is what he is doing, getting the little knapsack out that has golf balls in it and bring another bag down, all of which were ready when Park and Kato were out there and he comes down with the other bag carrying it. That is what he was doing, Mr. Darden. That is where he was. It is your speculation he is on the side of his house running into an air conditioner. That didn't happen. That is unreasonable. Nobody here believes it. It is not going to help save their case. They are speculating again, speculating, speculating, and it is not going to work. And so that brings me to this other instruction. It is called alibi. You remember during voir dire I asked you about this. I said that you won't place a bad connotation on the term "Alibi," because that is what the law calls it, alibi. And it says as follows: "That evidence has been received for the purpose of showing that the Defendant was not present at the time and place of the commission of the alleged crime for which he is here on trial. If after a consideration of all the evidence you have a reasonable doubt that the Defendant was present at the time the crime was committed, you must find him not guilty." Can I repeat that last part for you? "If after a consideration of all the evidence you have a reasonable doubt that the Defendant was present at the time the crime was committed." It doesn't say you might find him not guilty, you might think about it. It says: "You must find him not guilty." And so you know when you talk about this whole concept of reasonable doubt, and we will talk a little more about that, it is how you feel inside about this evidence. It is how you feel inside about these messengers and their message. It is when you have that queasy feeling, you can't trust this evidence. Barry Scheck described it, well, as a cancer. He talked about one cockroach. You don't need to see any more because you know if you see there is a lot of them around. All you need is one and that is going to make you go the other way.
And in this case you don't have to get past the socks, but then you get to the glove and the Bronco and you get to all of it, none of which you can trust. And then how do you do it? Do you get back there and say, well, I don't trust them on this, I don't think I can trust them on that, when every essential link in the chain is broken? And so your job won't be quite as tough as you may have thought. Reasonable doubt in this case. The Prosecution has not offered one coherent theory to explain how these deaths occurred. I won't talk about Thano Peratis and the desperation that brought about, but let me talk to you about this whole concept of what took place in this case. One of the things that was intriguing to me, and I'm sure you've thought about it and I know that your collective minds are far better than mine and Mr. Scheck's, but you know, we think about things that will be helpful to you. Now, one of the things that is always troubling me about the Prosecution's case is--you probably thought about this--Kato, the dog, was purchased by O.J. Simpson after the other dog died. Remember Arnelle told you about how they had to bury the dog and it was a real tough time for the kids and all. O.J. Simpson had that dog Kato along with Chachi, the other dog, over at Rockingham, and he let his son have the dog because they named the dog after Kato who is now living with O.J. Simpson. That dog knows O.J. Simpson. It is his dog. He bought the dog. They didn't know this as they were speculating. It is his dog. If O.J. Simpson had been the one there that night, that dog would have followed him out the back gate. He wouldn't be going out the front. Those paw prints wouldn't be going out that way and down the sidewalk. That is common sense. They said use your common sense. Does that make senses to you? The other thing is the one thing that you could count on in this case is these two people, even when they weren't getting along, loved their children and their children loved them. Whether it was pediatric aids affairs, whether it was recitals, whether it was sunshine preschool affairs, just look at the month of may, the things that you heard that O.J. Simpson went to always on the weekend because he was traveling. There wasn't no fuse. He was out of town working. He was the breadwinner. So whether it was the pediatric aids or something for his children's school, 400 people over at the Rockingham estate, he was always there for the kids. If it meant coming back from Chicago or from wherever he was in New York on Friday to go back to Chicago on Sunday to go back for an engagement, he came home. He came home because his little girl was having a concert. That is the kind of dad he is. And somebody has to stand up for him. People don't want you to stand up for him. People can't stand the truth, but they are going to hear truth in here. There is one place you can't take away somebody's voice, and that is in the courtroom. If you want to tell the truth, for sixteen months this man sat over here and heard people talk about him day in and day out, judged him and prejudged him against the American way. What right, how dare them do that? And he has one day or two days to have somebody stand up for him. People are crying and moaning. It is outrageous in America. It is intolerable, if you will. And so this is a good and decent man who loves his family, who loves his kids. None of us are perfect, but he is a man who went a long, long way. Raised primarily by his mother. You know what he did with his life. He had a good life, a wonderful life. He has done well. He is not going to give all that up, try and kill somebody with a knife. He is not going to give that up. And you know what, as you think about this case, can you imagine that a man who loves his children so much is going to go over, kill his ex-wife, kill their mother and leave her so that the children could come downstairs and find her? That defies credulity. None of you believe he would do that. It is contrary to everything that you can believe. And that you've heard about this man and what he has done and what he has done with his life. So forgive me if I speak out for O.J. Simpson, if I'm so presumptuous as to believe the contusion means that you are presumed to be innocent until you make the decision. Nobody outside here has a vote. You have that vote, thank heaven. These narrow-minded people, thank heaven they don't have a vote. You will have the final say. And so this concept then of reasonable doubt. What then does it mean? We've heard about it and we've talked about it.
We have a chart, and I'm going to ask Mr. Douglas to put it over there, and let's talk about this whole idea of burden of proof and reasonable doubt and what is reasonable doubt. You remember during voir dire I talked to you about this concept of reasonable doubt. And before we go to that chart, I mean: "It is that state of the case after the entire comparison and consideration of the evidence, leaves the minds of the jury in that condition where they cannot say they feel an abiding conviction of the truth of the charge." That is what reasonable doubt is. And let's go over it one more time, because this is the cornerstone of every criminal case. What it really is is a doubt based upon reason. In this case we have given you myriad reasons. There are many, many, many, many, many reasonable doubts, it is not just one, all of which lead you to one verdict in this case and one verdict only of not guilty.
But let's go over it one last time together. "A Defendant in a criminal case is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." You've heard a lot about that. That is what people need to learn and be reminded of in this country. Reasonable doubt is defined as follows: "It is not a mere possible doubt and we know that because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case where after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." That is reasonable doubt. It is not written just for O.J. Simpson. It is for you, it is for you, it is for you. It is for all of us who are citizens. It is given in every criminal case. You have to give it. That is the burden. You don't change it once the trial starts. That is the burden. Let's see how it works. In this whole idea of a burden of proof let's start down at the bottom and look at the burden that is placed upon the state, and they should have a burden like this when you are talking about taking somebody's freedom for the rest of their life or whatever. There are a number of things that you might want to think, but in a case--sometimes in cases you actually can prove the person charged not guilty, and in this case, in my 32 and a half years, this may be as close as any case where somebody has been proven not guilty. Because if you look at these facts, you looked at what we've shared with you over the course of the last two days, this man has been proven not guilty, but that is at the very bottom of the rung. Somebody among you say, well, you know, I have some suspicions. I think it is highly unlikely, but I have some suspicions. But somebody else may say, well, it is less than likely, but you know, I don't know, I mean, they didn't convince me beyond a reasonable doubt. And somebody else might say, well, you know, he is probably not guilty based upon this evidence. Somebody else will say it is unlikely he is guilty. No way in the world is he ever going to go over and kill the mother of his children under these circumstances. The timeline shatters their case. Somebody says I don't trust the police. Fuhrman was central. I don't recall trust Vannatter. It is the messengers and their message. It just doesn't fit. Something is wrong. There is a cancer here. Possibly not guilty, maybe not. And Mr. Scheck said, you know, maybe not is not good enough when you are talking about somebody's freedom for the rest of theirs lives. Somebody else may say perhaps, gee, I don't know. I suspect that he might be. Maybe he is possibly guilty of something. Maybe he is probably guilty. Maybe guilt is likely. Maybe guilt may be highly likely. I don't think any of you are going to find that in this case because I think we have shown that he is proven he is not guilty. But all of those levels, from proven not guilty to the guilt highly likely, it is our interpretation of what you have to do before you get all the way up to guilt beyond a reasonable doubt, so that you won't have that queasy feeling about this case, where you can believe to an abiding conviction of the truth of these charges. Can you have that? I think not on this evidence. Not on this evidence. Not on this case. They have failed. You know, we asked you a question, did you have the courage, did you have the intestinal fortitude to walk back into this courtroom if they failed to prove Mr. Simpson guilty? Did you have the courage to walk back in here and say we find him not guilty? And you said you could do that. You knew that was part of your job. You said you could do that. I'm going to told you to that, because that is what makes the system great, your courage, your willingness to stand up for what is right. And so in this scenario, thinking about reasonable doubt even more, the Prosecution had a puzzle, and it was interesting how they did this puzzle, technology is wonderful and you saw they kept under this puzzle putting on pieces and that sort of thing. And so we thought about that. I thought about this puzzle, thought about what it meant in this particular case. I got a call from a very, very wise, wise, wise lady who reminded me that if you ever have gone to the store and bought a puzzle, when you buy a puzzle, on the outside of the box of the puzzle there is a picture, so you know what the puzzle looks like when it is finished. Well, in this case the Prosecution took a photograph or picture of O.J. Simpson first, then they took the pieces apart. If they really wanted to talk about reasonable doubt, you don't jump to conclusions at the beginning. You don't rush to judgment and then be concerned about an obsession to win. What you do is you take the pieces and put them together and then you come to the conclusion. They have got it all backward. It is like what they did with the 4th amendment. It is like us, where is this witness? What did you prove? Solve this crime for us. They have got it all backward, don't you see. And so that little example, a jigsaw puzzle, was clever, but really it trivializes man's fight for his freedom who has always said that he was innocent from day one, so I wanted to just summarize our case with a graphic, thanks to Mr. Bob Blasier, of this evidence, and why there is reasonable doubt as to each of these items. Please note the monitor. All right. Let's look at--first we know in the upper left-hand corner, there is missing blood. They can't explain it and they won't. Down in flames going out with a home video where it was actually embarrassing this morning. You want a little levity during the tough time in your deliberations, play the Thano Peratis video. In fact, it is so bizarre that if you listen to it again you will hear Hank Goldberg is laughing self. He starts laughing when the words are mouthed by Peratis. He goes like that and Goldberg starts laughing at his next question. How embarrassing it is. This blood is missing and you will have the syringe. And so Mr. Goldberg, and what does that mean, that missing blood? That means reasonable doubt. Then we have the sock, my personal favorite, and when I talked to you about the socks yesterday, I may not have told you that in addition to the socks not being in the video at 4:13 on June 13th and how they placed them there later and how they were collected at 4:35 or between 4:30 and 4:40, Willie Ford came in here and testified to you he didn't see the socks. I forgot to tell you that yesterday. He testified they weren't there either. So thank heaven there is one person who wasn't part of that cover-up, and although they got to him and he says, oh, yes, ma'am, the socks may have been covered, but he still works over there, so we will forgive him for that, but you didn't know what we knew about Lange and Mazzola and the time they were collected in their log, but the time, another whole thing got them, and those straps on the bed further. So what have we shown you about the socks? Reasonable doubt. That moves to the back gate. What about that back gate with the EDTA and more DNA than you could ever imagine and it is picked up and collected three weeks afterwards when people have been all over the place. And you saw the photograph. Look at that photograph. That photograph doesn't show any blood. It shows some little tiny spot, totally inconsistent. They are trapped again by the video. This case will go down as the video case because we have shown you for your own eyes why they lose this case, where there is reasonable doubt. So the back gate, reasonable doubt. And then we started out with the timeline, because we knew at the outset the timeline with the witnesses that they failed and refused to call to establish a reasonable doubt. It shatters the Prosecution case. If you start there, you will find these witnesses credible. O.J. Simpson couldn't have committed these crimes. There is reasonable doubt. He is not guilty. The timeline. We went from there to the EAP B, and you will remember that, and Mr. Scheck has talked about it. I won't be redundant. A double-banded B. That is somebody else. They can't explain it. They never tried to explain it except to talk about something that is not in the literature. It didn't work and there is reasonable doubt about who that person was. And so with regard to--and let's see. I have lost track of my chart there. Demeanor. Before we get to EAP B, under demeanor, O.J. Simpson's demeanor, all those witnesses who didn't know each other, who you heard and who they talked to, you saw them all. You think that he was acting for those people?
You remember one of the most interesting things was Mr. Darden said that when the Scott Kennedy video at the June 12th recital where a man just happens to stop by and takes a video, Simpson doesn't even know he is being videoed. This guy doesn't know Simpson. Just taking a video. Just came to us out of the blue. They had the audacity to tell you he was on camera. He didn't know anything about being on camera. Somebody is taking a video of you, how do you know that? But we have that video and they had nothing else to say. Whenever--notice how they had nothing else to say to you, they don't say anything. That is an example of that. That is an example of O.J. Simpson's demeanor and that was our answer to this so-called fuse. We had proof for you. You saw him on that date and we took you through step-by-step through that day. We have already covered the EAP B, the Bundy blood drops, that Mr. Scheck did such a great job on and you know about those drops and you know the numbers as well as we do. I won't go over the numbers any more. I think there is reasonable doubt based on those. And of course you know the Bronco. How can you trust the Bronco? Chain of custody. How can you trust that? There is nothing you can trust about the Bronco and how they handled it. Then the gloves. The gloves didn't fit. The gloves didn't fit. The gloves didn't fit. Reasonable doubt. And then the why? Motive is not an element to the crime of murder, but absence of motive may tend to establish innocence. That is why Mr. Darden went to such a long and exhaustive study. And I have shared with you the fact that there is no motive in this case, but I just want to briefly tell you this about their theory at the end. If you believe what the Prosecutors want you to believe, you would have to believe that O.J. Simpson, who has a limo driver coming I guess around 10:30, 10:40, after he goes and gets a hamburger at McDonald's, after having been worried about change because he had hundred dollar bills, that he has already been packing because clothes are being brought down and he is taking his golf clubs, and that makes sense, it was a pre-planned trip. He is just off the road and going back on the road, that he is perhaps the most recognizable person in Brentwood in that area where he has lived we know for 17 years and that he drives a white Bronco, that he decides to put on a knit cap. You saw that exhibition yesterday of him or you or I in a knit cap. He decides he will put that on. He changes out of his tennis shoes, his Reebok tennis shoes and his sweat socks, and puts on some dress socks and puts on some Bruno Magli shoes. And let me just stop right there for a minute. Put a pin in that, the Bruno Magli shoes. And you heard all about Bruno Magli shoes and Bruno Magli shoes and we searched all around the world and we went to Bloomingdales, and what we did we find there is nobody who ever sold O.J. Simpson any Bruno Magli shoes. They searched. They tried. They never sold him any shoes, so they are back talking about Bruno Magli shoes. I mean, there must be every other house in Brentwood. I guess if somebody wanted to afford some Bruno Maglis shoes, I guess they could. That is their case. There is no evidence that O.J. Simpson had any Bruno Magli shoes ever. In fact, when Lange is looking for the clothes and O.J. Simpson says this is what he wore, here are the tennis shoes, he took only tennis shoes that night. There are--is no evidence that O.J. Simpson ever owned any Bruno Magli shoes, and please remember that. So he gets--puts these Bruno Magli shoes on and he is trying to disguise himself. Of course he puts on a pair of gloves that don't fit and he gets in his car and he decides what he will do is he will drive over to the alleyway behind Bundy where his wife lives in this big Bronco. Now, while he is going to do that, he has been over a number of times, and you know, they have already told you about Pablo Fenjves and these people who went back there. Remember when you went on that jury view. There are homes and windows and things that face down on that alley on both sides from I guess Gretna Green side and from the Bundy side people are looking down in that alley. It is well-lit. You saw the photograph yesterday of what Mark Storfer would have seen. He pulls into this alleyway in this Bronco, in this disguise, dressed the way they want to have him dressed. He is coming to kill his wife. Now, somehow he tried to kill his wife or whatever. He doesn't kill her in the back back there where the car is. He goes and lures her to the front gate. Doesn't make any sense, does it? He goes to the front gate to lure her to that front gate. He gets into a fight with somebody he doesn't even know. This fight goes on for five or fifteen minutes. The fight is so fierce that a hat and a glove are torn off. That is how fierce this fight had to be. The keys, the beeper, you saw how tough it is for any kind of an altercation, for gloves to come off, for a hat to come off.
There is kicking, there is all kind of fighting in this small, small area. But that is what they want you to believe and so we find the keys and the beeper and the gloves all--of course we find specifically the cap, the gloves neatly packaged under the item there, and then he leaves this one glove behind and then just walks slowly out to the alleyway. Now, the dog that we've heard so much about who he bought, who was his dog, doesn't go with him; he goes the other way, out the front to go down the other way, Kato, the dog, under what they would have you believe. And he has got these bloody clothes on and everything and now he goes back out there where his car has been sitting ten, fifteen, twenty minutes, right out there in the alleyway. Anybody could look, anybody coming home. People are driving up and down the street. Gets back in his car and then presumably he races back home where the limousine driver who was there doesn't hear him come up, doesn't see him, doesn't do any of those things. And we know from the time they see O.J. Simpson, within five minutes he is coming downstairs packed, luggage is already down there looking neat as a pin heading for the airport.
Now, he was expecting this man after he came back from the hamburger. This is what their case is. This is what they want you to believe. And just for good measure, it is not enough. That is not enough. Under their scenario, once he gets home, after he is rushing, he has got enough time and he has got all these bloody clothes and he runs down the side of his house where he has lived for 17 years and runs into the air conditioner and says, whoops--no marks of course on his body--but while he is back there he drops a bloody glove to match the other glove found over at Bundy. And just for good measure so they will be sure and find it, he knocks on the wall. He doesn't run into the wall, he knocks on the wall. He says, (Indicating), he gives a signal and then he decides to come in the house. But nobody sees him do any of that. That is what they have you believe. That is the Prosecution's case. We have been here one year, ladies and gentlemen, and two days, to hear this is what they have told you. It just doesn't fit. It doesn't fit; you must acquit. Something is wrong with the Prosecution's case, and your common sense is never going to let you fall for it. So the other side, of course, we submit, in answering the questions that O.J. Simpson was at home getting ready for his trip. He had no problem with his ex-wife. He had gone to this concert. She had gotten tickets for him. There is no argument. Nobody has come in here and said they had any argument that day. There is no fight. They talked earlier, made arrangements for the tickets. He went to the concert. You saw him at the concert. You traced his steps that day and what he did and then he went on to Chicago and came back immediately and everything he did was consistent with innocence. This case is a tragedy for everybody, for certainly the victims and their families, for the Simpson's family, and they are victims, too, because they lost the ex daughter-in-law, for the Defendant. He has been in custody since June of 1994 for a crime that he didn't commit. Someone has taken these children's mother. I certainly hope that your decision doesn't take their father and that justice is finally achieved in this case. One final word about Allan Park. We talked a lot about Allan Park. He is somebody that Miss Clark, of course, found credible, but even credible people don't get everything right.
Remember the golf bag? He thought it was a blue golf bag and we know it is black with an insignia on it. We know that there was a lot of questions asked about whether he saw a car parked at the curb and I read you the portion when I questioned him where he said he hadn't really been looking. He was not very clear with regard to that. But like all witnesses, you hold him up to the same standard and look at them. And so now I promise you we are coming to the end. If after hearing all of this evidence you have a reasonable doubt, it is clear that O.J. Simpson is entitled to an acquittal. And whether it is O.J. or no J, the result would have to be the same. His status doesn't count. It is the evidence that counts and what has been proven to you under these circumstances. But he is a good and decent man who you have seen and observed everyday during session since September 26, 1994. Now, as it comes time for me to conclude my remarks, I may never have an opportunity again to speak to you, certainly not in this setting, maybe when the case is over. As you have been told many, many times, these are very heavy burdens placed upon the People, and for good reason, to prove this case beyond a reasonable doubt. As such it is Miss Clark's duty to answer for you as best she can any legitimate questions arising from the evidence which we believe casts doubt upon Mr. Simpson's guilt. There may be 1000 such questions in a case like this which could be put to her, but we intend no such exercise. I do think, after careful deliberation, that it might be fair to suggest fifteen questions, just fifteen questions which literally hang in the air in this courtroom at this moment. And as the time approaches for you to decide this case, for us to hand the baton to you. I offer these questions now as a most important challenge to the Prosecution, the Prosecution which claims that it has met its burden in this case. If that burden has in fact been met, you will be given logical, sensible, credible, satisfying answers to each of these fifteen questions. If the questions are overwhelming and unanswerable, they will be ignored or you will be told that the Prosecution has no obligation to answer questions. If you are given anything less than a complete sensible and satisfactory response, satisfying you beyond a reasonable doubt to these fifteen questions, you will quickly realize that the case really is transparent and you will think about the scenario that I just went through for you and that--the term smoke and mirrors that you heard about doesn't apply to the Defense. We proved real hard things for you, things that you can see, things you could take back in that jury room. And accordingly, you would have to find Mr. Simpson not guilty. When I'm concluded, for Miss Clark's convenience, should she decide to deal with these very troublesome questions, I'm going to leave her a written list of these questions here when I conclude. Let me go over these fifteen questions with you just briefly.
1. Why, there on the monitor, did the blood show up on the sock almost two months after a careful search for evidence? And why, as demonstrated by Dr. Lee and Professor MacDonell was the blood applied when there was no foot in it? Do you think that is a fair question in this case? Let's see if she can answer that question.
Question no. 2. Why was Mark Fuhrman, a detective who had been pushed off the case, a person who went by himself to the Bronco over the fence to interrogate Kato to discover the glove and the thump, thump, thump area?
No. 3. Why was the glove still moist when Fuhrman found it if Mr. Simpson had dropped it seven hours earlier? As Agent Bodziak told you, as herb MacDonell has told you, blood dries very rapidly.
4. If Mark Fuhrman, who speaks so openly about his intense genocidal racism to a relative stranger such as Kathleen Bell, how many of his co-workers, the other detectives in this case, were also aware that he lied when he denied using the "N" word yet failed to come forward? Part of Barry Scheck's fourth C of continuing cover-up.
5. Why did the Prosecution not call a single police officer to rebut police photographer Rokahr's testimony that Detective Fuhrman was pointing at the glove, before, before Fuhrman went to Rockingham? That is around 4:30 in the morning.
6. If the glove had been dropped on the walkway at Rockingham ten minutes after the murder, why is there no blood or fiber on that south walkway or on the leaves the glove was resting on? Why is there no blood in the 150 feet of narrow walkway or on the stucco wall abutting it? And you ever been back there.
No. 7. For what purpose was Vannatter carrying Mr. Simpson's blood in his pocket for three hours and a distance of 25 miles instead of booking it down the hall at Parker Center?
No. 8. Why did Deputy District Attorney Hank Goldberg, in a desperate effort to cover up for the missing 1.5 milliliters of Mr. Simpson's blood, secretly go out to the home of police nurse Thano Peratis without notice to the Defense and get him to contradict his previous sworn testimony at both the grand jury and the preliminary hearing? Peratis was never sworn. We were never given notice.
9. Why, if according to Miss Clark he walked into his own house wearing the murder clothes and shoes, there is not any soil or so much as a smear or drop of blood associated with the victims on the floor, the white carpeting, the doorknobs, the light switches and his bedding?
10. If Mr. Simpson had just killed Mr. Goldman in a bloody battle involving more than two dozen knife wounds where Mr. Goldman remains standing and struggling for several minutes, how come there is less than seven/tenths of one drop of blood consistent with Mr. Goldman found in the Bronco?
No. 11. Why, following a bitter struggle allegedly with Mr. Goldman, were there no bruises or marks on O.J. Simpson's body? And you will have those photographs back in the jury room.
No. 12. Why do bloodstains with the most DNA not show up until weeks after the murder, those on the socks, those on the back gate, those on--those are the two major areas.
No. 13. Why did Mark Fuhrman lie to us? Why did Phil Vannatter lie to us?
And finally 15. Given Professor MacDonell's testimony that the gloves would not have shrunk no matter how much blood was smeared on them, and given that they never shrank from June 21st, 1994, until now, despite having been repeatedly frozen and thawed, how come the gloves just don't fit?
I'm going to leave those questions for Miss Clark and we'll see what she chooses to do with and about them. That will be her choice. But I think you have a right to demand answers if you are going to do your job in this case. It seems to me you will need to have answers to those questions. Now, there are many, many, many more, but as with everything in this case, there comes a time when you can only do so much. We took fifteen as representatives, but I can tell you we had more than fifty questions, but fifteen will be enough, don't you think? I think so. In this case, when we started out a long time ago, we talked a lot about truth. And I always like, in a circular fashion, that you kind of end up where you started out. The truth is a wonderful commodity in this society. Some people can't stand the truth. But you know what? That notwithstanding, we still have to deal with truth in this society. Carlisle said that no lie can live forever. We have seen a number of big lies in this case, in this so-called rush to judgment. We have seen lie after lie, so much so that at least two of the major witnesses, Vannatter and Lange--Vannatter and--strike that--and Fuhrman, their testimony by you may be totally disregarded, further dismantling the People's case. You have that right, you know, in this search for truth. In times like these we often turn to the bible for some answers to try to figure out when you've got situations like this and you want to get an answer and you want to try to understand. I happen to really like the book of proverbs and in proverbs it talks a lot about false witnesses. It says that a false witness shall not be unpunished and he that speaketh lies shall not escape. That meant a lot to me in this case because there was Mark Fuhrman acting like a choirboy, making you believe he was the best witness that walked in here, generally applauded for his wonderful performance. It turns out he was the biggest liar in this courtroom during this process, for the bible had already told us the answer, that a false witness shall not be unpunished and he that speaketh lies shall not escape. In that same book it tells us that a faithful witness will not lie but a false witness will utter lies. Finally in proverbs it says that he that speaketh the truth showeth the forthrightfulness but a false witness shows deceit. So when we are talking about truth, we are talking about truth and lies and conspiracies and cover-ups, I always think about one of my favorite poems, which I think is so very appropriate for this case. You know when things are at the darkest there is always light the next day. In your life, in all of our lives, you have the capacity to transform Mr. O.J. Simpson's dark yesterday into bright tomorrow. You have that capacity. You have that power in your hand. And James Russell Lowell said it best about wrong and evil. He said that truth forever on the scaffold, wrong forever on the thrown, yet that scaffold sways the future and beyond the dim unknown standeth God within the shadows, keeping watch above his own. You walk with that everyday, you carry that with you and things will come to you and you will be able to reveal people who come to you in uniforms and high positions who lie and are corrupt. That is what happened in this case and so the truth is now out. It is now up to you. We are going to pass this baton to you soon. You will do the right thing. You have made a commitment for justice. You will do the right thing. I will some day go on to other cases, no doubt as will Miss Clark and Mr. Darden. Judge Ito will try another case some day, I hope, but this is O.J. Simpson's one day in court. By your decision you control his very life your hands. Treat it carefully. Treat it fairly. Be fair. Don't be part of this continuing cover-up. Do the right thing remembering that if it doesn't fit, you must acquit, that if these messengers have lied to you, you can't trust their message, that this has been a search for truth. That no matter how bad it looks, if truth is out there on a scaffold and wrong is in here on the throne, when that scaffold sways the future and beyond the dim unknown standeth the same God for all people keeping watch above his own. He watches all of us and he will watch you in your decision. Thank you for your attention. God bless you.
THE COURT: Thank you very much, Mr. Cochran. All right. Let me see counsel over at the side bar without the court reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Ladies and gentlemen, contrary to our previous schedule, I'm going to recess for the evening at this time. We will resume tomorrow morning at nine o'clock. And the lawyers have promised me that we will finish this case. One of the conditions that we go over until tomorrow morning is that we will finish tomorrow afternoon with the rebuttal arguments by the Prosecution. I will instruct you and the case will be yours tomorrow afternoon. And I hope--hopefully we will at least get it far enough to have you go in, select a Foreperson to preside over your deliberations, and then Mrs. Robertson has a list of the exhibits and everything that will be presented to you so you can get organized for the coming days. All right. Having said that, please remember all my admonitions to you. Don't discuss the case, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted, do not allow anybody to communicate with you with regard to the case. See you tomorrow morning nine o'clock. All right. We will be in recess.
(At 5:16 P.M. an adjournment was taken until Friday, September 29, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Vs.) No. Ba097211)
Orenthal James Simpson,)
Reporter's transcript of proceedings Thursday, September 28, 1995 volume 232
Pages 47793 through 48036, inclusive
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
I N D E X
Index for volume 232 pages 47793 - 48036
Day date session page vol.
Thursday September 28, 1995 A.M. 47793 232 P.M. 47900 232
Closing argument by Mr. Cochran 47795 232 (Resumed)
Closing argument by Mr. Scheck 47848 232
Closing argument by Mr. Scheck 47901 232 (Resumed)
Closing argument by Mr. Cochran 47990 232 (Resumed)