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. Counsel, would you have a seat, please.
(Brief pause.)
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. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Miss Clark. The jury is not present. Counsel, just one matter before we get started this morning. You should have on your desk there a--the court schedule upcoming, and if you recollect, the one thing that is missing on the court's schedule is that we had agreed to be dark in this matter, my recollection was--
MR. COCHRAN: Wednesday, I believe, your Honor.
THE COURT: Wednesday, the 4th, and concluding early on Tuesday, and that will be in effect for that date as well. All right. Anything else we need to take up?
MR. COCHRAN: Your Honor, Judge--
THE COURT: Deputy Smith, let's have the jurors, please.
THE COURT: All right. We are about to clear the courtroom.
MR. COCHRAN: Your Honor, Miss Clark was just showing us some boards they have, some new boards we have not seen when your Honor came out, and we just started looking at the first one. May we have a few minutes to see the boards?
THE COURT: How many do you have, Miss Clark?
MS. CLARK: Just two boards, your Honor, and slides.
MR. COCHRAN: And if there are any graphs, we would like to see those also.
THE COURT: All right. Let's see the boards.
MS. CLARK: This one they have seen, (Indicating).
THE COURT: All right.
MR. SCHECK: I just have one question about that, Marcia.
THE COURT: All right. Counsel, this is going to be a discussion on the record, not amongst ourselves here, all right?
MR. SCHECK: I'm sorry.
(Brief pause.)
MS. CLARK: Can you see this, your Honor?
THE COURT: I have seen it.
MS. CLARK: Okay.
THE COURT: Let's see the peels. Very nice.
(Brief pause.)
THE COURT: How much does that weigh, Mr. Fairtlough?
MR. FAIRTLOUGH: Pardon me?
THE COURT: How much does that weigh?
MR. FAIRTLOUGH: I'm not too sure, but it definitely gives you a workout.
MS. CLARK: I don't even try.
(Brief pause.)
THE COURT: All right. Miss Clark, why don't you let Mr. Fairtlough do this and let's look at the other board.
MS. CLARK: Your Honor, let me do this and he can do the slide prep.
THE COURT: All right. Counsel, let's look at the "Reliability of DNA results board."
MS. CLARK: I thought they did.
(Brief pause.)
THE COURT: And Miss Clark, how many slides do you have?
MS. CLARK: Let me count, your Honor.
THE COURT: Roughly.
MS. CLARK: Ten.
THE COURT: Okay. And everything else is either in evidence or previously used, correct?
MS. CLARK: Correct.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: All right. Do you have copies of those for the court so I can review it?
MS. CLARK: Your Honor, I'm sorry, I meant to make copies last night.
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Yes.
THE COURT: All right. Mr. Fairtlough, are we ready to preview the slides?
MR. FAIRTLOUGH: Yes, your Honor.
THE COURT: All right.
(The slides were displayed for the court and counsel.)
THE COURT: All right. Next.
MR. COCHRAN: Judge, could we hold on one second.
(Brief pause.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
(The slides were displayed for the court and counsel.)
THE COURT: Next.
MR. FAIRTLOUGH: That's it, your Honor.
THE COURT: All right. Any other comments?
MR. COCHRAN: Is that everything, your Honor? Everything we haven't seen?
THE COURT: That is it. All right. Deputy Smith, let's have the jurors, please. I'm sorry, let's clear this and then we will have the jurors.
MR. FAIRTLOUGH: Yes, your Honor.
(Brief pause.)
THE COURT: Miss Clark, the Defense is asking for the single version--you have two versions of verdict forms.
MS. CLARK: I haven't had a chance to look at them.
THE COURT: All right.
MS. CLARK: But I will do it at lunch, okay?
THE COURT: All right. The issue being do you want the multiple forms, first, second, not guilty, or do you want just one verdict form, yes, no, circle the result?
MS. CLARK: Okay.
THE COURT: That is the issue.
MS. CLARK: Okay. That is it.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And let the record reflect that we have now been rejoined by all the members of our jury panel. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: All right. At this time the Defense has concluded their summation and the Prosecution now has the opportunity to offer their rebuttal to the Defense summation. And Miss Clark, the Prosecution may proceed.
MS. CLARK: Thank you very much, your Honor. Mr. Darden will begin our closing.
THE COURT: All right. Thank you very much. Mr. Darden.
MR. DARDEN: Thank you.
THE COURT: Yes.
REBUTTAL ARGUMENT BY MR. DARDEN:
MR. DARDEN: Good morning.
THE JURY: Good morning.
MR. DARDEN: Well, we have come full circle again it seems. Here you are and here I am. And as Judge Ito just indicated, this is my last opportunity to speak with you, that is, until after you render your verdict. If at that time you are kind enough to spare a few moments and allow me to thank you personally at that time, not only for your verdict, but for your service as well. You've got a tough job, a very tough job. I don't envy you in that regard. But let me tell you something. I have had a tough job, too. The law is a tough thing to enforce in this town. Not everybody, not everybody wants to live up to the law or follow the law. Not everybody thinks that the law applies to them. I have been a Prosecutor for almost fifteen years, and if there is one rule that I have lived by, if there is one rule that means a lot to me, it is this one: No one is above the law; not the police, not the rich, no one. And I hope you agree with that.
I hope you agree with that rule. I hope you consider that--that motto. O.J. Simpson isn't above the law. You've heard a lot of argument over the past couple of days and I know you listened to all of the attorneys in this case intently and I did when I could and I listened yesterday and I had been anticipating yesterday's arguments from the Defense. I knew that those arguments would be passionate, I knew they would be loud and I knew they would be forceful, and I knew that they would be provocative, and I wasn't disappointed. But also I knew that they wouldn't talk much about the evidence. Mr. Scheck did, but that is okay. And I knew they would want to deliver a message to you, and that is, when I spoke to you the other day I said to you, hey, you can't send a message to Fuhrman, you can't send a message to the LAPD, you can't eradicate racism within the LAPD or within the L.A. community or within the nation as a whole by delivering a verdict of not guilty in a case like this where it is clear and you know it is clear, you feel it, you know it in your heart. You know it as you have sat here day after day listening to this testimony, you know it. Everybody knows it. Everybody knows he killed--
MR. COCHRAN: I object to the form of that argument, your Honor.
THE COURT: Overruled. Proceed.
MR. DARDEN: Everybody knows.
MR. COCHRAN: Object to that, your Honor.
THE COURT: Overruled. Proceed.
MR. DARDEN: The evidence is there. You just have to find your way through the smoke. You just have to find your way through the smoke. You heard from Scheck yesterday. You heard him talk about our science. They have to attack our science because all the science points to O.J. Simpson, to this Defendant. It all points to him as the killer. They have to attack that science. Not only does common sense dictate that he is guilty, but we have proven him guilty to a scientific certainty. We have proven him guilty beyond a reasonable doubt. They hoisted that chart up on the--on the thing there yesterday with reasonable doubt. You remember that chart? It had reasonable doubt at the top and below that it had highly unlikely and all this other stuff. They put it on this thing and then they hoisted it all the way up to the ceiling. That isn't reasonable doubt. That is not what I'm required to prove to you. Mr. Cochran said to you, well, reasonable doubt is doubt with a reason. That is not reasonable doubt. When you look back at that instruction, when you look back at the reasonable doubt instruction, you will see when it comes to human affairs, there is always some degree of doubt no matter how small. The sun could explode tomorrow, it could explode today, but I doubt that that will happen. I really have no reason to believe that is true. I have no reason to believe that the sun will explode today or tomorrow. When you read the reasonable doubt instruction, apply it to--read it and apply it to your everyday situation, your everyday circumstances. What does it take? What does it take you as a human being after hearing all the evidence and after hearing the law that the judge gives you, what does it take for you to feel comfortable in your conclusion that he killed these people? They said that you have to be able to wake up the next day and feel as if the day before, the day that you rendered your verdict, that you did the right thing, that you rendered a verdict that you can live with. Let me ask you this: If you were to acquit him, what explanation would you give the day after that acquittal if someone said why did you acquit him? Would you say racism? Would you say it is because there is racism in the LAPD? That is what they want you to say. That is what they want you to think. You heard all of that--all the speaking and the fiery rhetoric and the quotes from proverbs and the like. You heard all of that yesterday, all of that fiery rhetoric. Well, let me tell you what Marcia Clark and I are. Let me tell you who we are. We are the voices, the voices of calm and reason in all of this. You just need to calm down, take that common sense God gave you, go back in the jury room. Don't let these people get you all riled up and all fired up because Fuhrman is a racist. Racism blinds you. Those epithets, they blind you. You never heard me use that epithet in this courtroom, did you? I'm not going to put on that kind of show for you know who, for people to watch. That is not where we are coming from. We want you to focus on the evidence. I'm eternally grateful that Mr. Fuhrman was exposed to be what he is, because I think we should know who those people are. I have said it once, I have said it before, we ought to put a big stamp tattooed on their forehead "Racist" so that when we see them we know who they are so that there is no speculation so that we don't have to guess. But what they want you to do and what they have done in this case is they have interjected this racism and now they want you to become impassioned, to be upset, and then they want you to make quantum leaps in logic and in judgment. They want to you say Fuhrman is a racist, he planted the glove. You can't get from point a to point B if you just sit down and use your common sense. If you are logical, if you are reasonable, you can't do that. It is true that Fuhrman is a racist. And it is also true that he killed these two people, and we proved that he killed the two people.
MR. COCHRAN: Your Honor, I object to the form.
MR. DARDEN: We proved that Fuhrman is a racist.
THE COURT: Overruled. Overruled.
MR. DARDEN: This is my time to talk. Yesterday somebody said that you can't quiet a man's voice in a court of law. This is my time to talk and I want to talk to you. I heard the words they spoke yesterday about the constitution. I read the constitution. I'm a lawyer, I am a student of the constitution. I know what it means and what it doesn't mean. I know what it is. And Gil Scott Darron said that the constitution was just a notebook piece of paper. You remember that? And that is probably true. But what makes it more than that is the fact that there are decent, honest and courageous people behind it. You can write the law, but if you are not willing to enforce the law, then what is it? What is it worth? You can write the law. You can pass the law, but if people aren't willing to follow the law, then what good is it? I also looked back at the constitution last night, I sent my clerk to go get it for me, and I looked through the constitution, and you know what I saw? I saw some stuff in the constitution about Ron and about Nicole and the constitution said that Ron and Nicole had the right to liberty. It said that they had the right to life. It said that they had a right to the pursuit of happiness. It said that Nicole didn't have to stay with him if she didn't want to stay with him. That is what the constitution said. And I looked further and I looked in the constitution to see if it said anything about O.J. Simpson. You know what it said? It said he doesn't have the right to take those lives. He did not have the right to do what he did. They talk about courage. Courage is what Marcia Clark and I do everyday.
MR. COCHRAN: Object. I object to that, your Honor.
THE COURT: Overruled.
MR. SCHECK: I object, your Honor.
MR. DARDEN: It is time to stand up.
THE COURT: Overruled.
MR. DARDEN: It is time to stand up. The constitution says that a man has no right to kill and then get away with it just because one of the investigating officers is a racist. Your job as jurors in this case is to get beyond all of that. The fact that Fuhrman is a racist goes to his bias, goes to his credibility and it may go to other things the judge will tell you, and I'm not going to tell you that you should limit your use of that. You should use it in any way you are instructed to use it by the court, but you shouldn't use it for anything else. As I said the other day, the issue of Fuhrman, it may not be an issue for another day, but it certainly is not an issue, that is in terms of sending him a message is not an issue for you in this case. You can't send him a message. You can't send the LAPD a message. You want to send the LAPD a message, I'm sure they will listen to you after this case is over. I am sure that they will. I listened to the lawyers talk to you and it has been a long trial and there has been a lot of evidence in this case, a lot of testimony, and it is easy to get lost in it all. It certainly is for me. I think you watched me. I mean, there were some days when the day just seemed to run on so long. Has it been a year and three days now? But it is easy to get lost in the evidence and it is easy for lawyers to get lost in the evidence, and as Judge Ito told you before, and I think I told you the other day, nothing we say in this argument is evidence. Nothing I say to you today is evidence. Certainly nothing they said to you is evidence in this case. The evidence is what you heard from the witness stand. The evidence is the exhibits.
I listened to one of the lawyers testify in this case. I heard lawyers add things, add facts into the record, or attempt to. The facts are what you heard in testimony by people who took an oath and who sat down in that chair. If you find what they said to be true, then you find the facts. Nothing a lawyer says is a fact. They said yesterday that I'm an advocate. Well, I am an advocate, and they are advocates, too. You've taken notes throughout this trial. We watched you all take notes. Rely on those notes, rely on the court reporter's transcript. Rely on your own recollection. Don't be misled, don't be misled. Because I listened to lawyers argue yesterday, and you know what we do when we start to argue and get caught up, you get in that role soon and pretty soon you just start saying stuff. It may not necessarily be true, it may not necessarily be what is in the record, so rely on the record. Rely on the record. If you rely on the record and use your common sense, you will find your way through the smoke. And I told you there was going to be some smoke. I told you there had been some smoke. Yesterday we heard the smoke. It was fiery rhetoric, but that is what we do. We are lawyers. I was reading last night about how important it is to remain calm and we heard a lot of quotations over the last couple of days. And I remembered a story that I had read once and a lot of people quote Martin Luther King and the like and that is all fine, but you know, I'm a student, I'm a student of that. I have studied him and studied him and studied him. And I recalled that in 1961 there was an incident involving Dr. King, and it might be helpful for you to recall this, as I'm sure you do, but it was 1961 and he had written a book and he was up in Harlem and there was a book signing and he was seated there at the table. There were a line of people walking up to him and asking him to sign their books and meeting him and saying hello. And finally this one woman walked up to him and she said to him, "Are you Martin Luther King?" And he said, "Well, ma'am, yes, I am." She said, "Well, I've been looking for you" and she reached into her purse and she pulled out an envelope opener and she plunged it into his chest. And the people in the store were horrified and everyone became panicked and people began running and screaming, "Oh, my God Dr. King has been stabbed. Oh, my God, Dr. King has been stabbed," and he fell to the floor and he laid there. And one of his assistants ran over to him and saw--saw this massive thing imbedded in his chest and the assistant started to reach for it to pull it out and Dr. King calmly said, "No, don't touch it; just get me to a hospital." Well, the assistant was hysterical.
"Dr. King, let me pull it out. Let me pull it out." Dr. King was calm. He laid there with this--with this thing imbedded in his chest and he said, "No, just don't touch it. I will be all right. Just get me to the hospital." And so the assistant did as he was told, as Dr. King instructed him to do, and he took him to the hospital and they rushed him into surgery and they operated on him for five hours. And they removed what, for all intents and purposes, was a knife out of his chest and it was removed by a black doctor, a black surgeon I am proud to say. And a few days later the surgeon went to see Dr. King who was still resting and rehabilitating in the hospital and he went to see him and the doctor said to Dr. King, he said, "It is a good thing you were so calm, Dr. King. It is a good thing you were so calm about the whole thing. The point of that blade was touching your aorta. Had you moved suddenly, if you so much as sneezed, you would have died instantly. You would have drowned in your own blood." Some folks would like to get you all riled up and get you so upset that you move suddenly and so that you drown in the minutia, so that you choke on the smoke. Some people want to make you mad and angry and bitter. King once wrote that we should never succumb to the temptation of bitterness and that the one thing about bitterness is its blindness. So don't be blinded by all of this; just do your job. I know you know what your job is. I know you know what to do. And I hope you don't mind too much that I--that I keep reminding you of that job, because this is important. This case is important. This is a murder case. There are two people that are dead. I think it is safe to say at this point, after all that I've heard over the last few days, I think it is safe to say that I'm the messenger and I volunteered for that job and I don't mind being the messenger. I told you what the message was. In 1989 the message was that he is going to kill me, he is going to kill me. And Edward said, "Who is going to kill you?" "O.J." "O.J. The football player?" "Yeah, he is going to kill me." That was the message in 1989. The new message today, there is another message. The message in `89 was that he is going to kill me. The message in `95 is he killed me. That is what this has been all about. That is the message we have been trying to send you the past eight months. The message is he killed her. And there is another message. And you might not be able to hear and see it and read it through all the smoke, and through all the shouting and all the rhetoric, but there is another message. And the other message is he killed me, too. He killed me, too. Through all the smoke and over all the rhetoric you have got to be calm and not succumb to bitterness and do the right thing. I heard a lot about courage, and you are fourteen courageous people and everybody in this room knows that. No one could ever call you cowards. No one can ever accuse you people of running away because you have a tough job and you know you have a tough job and you have sat here day after day, even when you were sick, even when you were sick, you came here and you listened to us. You listened to Marcia and I and you listened to the Defense. They want you to believe that if you acquit him that that will be the courageous thing to do. I think the courageous thing to do in this case would be to look at all the evidence. I think that takes courage. I think it takes courage not to jump to a snap conclusion. I think it takes courage to recognize within ourselves that what we heard yesterday was appeal to a certain part of us and it was appeal to some of us perhaps and not all of us, but it was an appeal to a certain part of us that only some of us know about. That is what happened yesterday. I think it takes courage to recognize that. If you mistrust the police--I spent seven years prosecuting bad policemen. I understand why you mistrust the police. If you have that basic mistrust--
MR. COCHRAN: Objection, your Honor, improper.
MR. SCHECK: Objection.
THE COURT: Overruled.
MR. DARDEN: I understand that, and perhaps you ought to, but I think that we have to do is we have to take every case on a case by case basis and every cop on a cop by cop basis. Yesterday they took Fuhrman, this racist, and then they put Vannatter with him and pretty soon they were interchanging Vannatter and Fuhrman.
Vannatter has been a detective 27, 28 years. You didn't hear anybody come in here and say he ever used that word. And it is easy to put up a big poster and say "Vannatter's big lies." That is easy to do. They say that he made an off-the-cuff remark eight months ago. That is what some people said. You heard what he said. Do you remember everything you say? Do you know everything that you've said? Does every lawyer in this case know everything that they've said? I heard one of the lawyers say that there was a Caucasian hair on the Rockingham glove and that that hair was--that there was never any attempt to match that hair to anybody and that it could be Fuhrman's. That wasn't true. That is not what is in the record. I'm not going to put up a big poster and say "Defense big lies." Sometimes people misspeak, sometimes people forget, sometimes people are wrong, sometimes they say things they don't remember saying, sometimes they say things that they do remember saying and we admit to them. We have some of all of that in this case, I suppose. Well, let's talk about some of the things we heard over the last couple of days. Let's talk about some of the evidence. As I listened to them, I got the sense almost that they had sort of designed a special thing for each and every one of you. This is high tech stuff talking to juries these days. This is 1995. There are people that know what to say to individual jurors or particular jurors. I heard someone say--pose a question. What more could an innocent man do? You remember that question? You saw the videotape, you saw Officer Thompson standing there at the driveway. You saw the Defendant arrive. You saw him get out of the car. You saw him walk up the driveway. He walked up the driveway carrying this black bag over his shoulder. You remember that? He got out of the car and walked up the driveway and then a few minutes later we see Robert Kardashian carrying a Louis Vuitton bag. The police have a search warrant to search Rockingham. Have you ever heard that they had a search warrant to search Robert Kardashian? And when you pull up to your house, do you jump out of the car and give your luggage to your lawyer? That was June 13, 1994. And what is the testimony? What have we heard in this case? On March 28, 1995, retired Judge Delbert Wong, very fine judge, acting as a special master, an extension of Judge Ito, acting at Judge Ito's direction, he went to the Defendant's house where a Louis Vuitton bag was pointed out to him. Judge Wong brought that bag to court. Where is the bag? Judge Wong told us that it was on March 28th that he retrieved that bag. When you look at the video, you will see that that bag is bulging. What is in that bag? What was in that bag? Don't you want to know what was in that bag? And I will bet that at least once since I have been up here talking, I bet there has been somebody back there shaking their head from side to side. Does that happen? This is the evidence. They talked about evidence yesterday. They talked about showing you the evidence. This is the evidence. This bag is empty. There is nothing in this bag. There is nothing in this bag. Why bring this empty bag here to court to you? That is not what you are interested in. That is not what you want to know. When I finished here the other day, I left some questions for them. Who was that man who walked into the house that night? That is what you want to do. Who was the man Allan Park saw walking into the house? And let me tell you something. Search your notes, search your memory. They never brought it up, they never mentioned it, they never mentioned that man; never. That is what you want to know. You don't want to know what is in an empty bag. I told you one of the lawyers was--well, I told you the lawyers were testifying. They were adding evidence and information into this individual that you never heard from the witness stand. Chipping golf balls. There was golf balls in that little black bag. You know, remember the bag left on the driveway, the one that Kato offered to go get that the Defendant said, "No, no, I will get it, I will get it"? This is the nice when he is supposedly suffering from acute arthritis, an attack of acute arthritis. Do you remember somebody told you that, that he suffered from acute arthritis to the point that he couldn't deal cards or something. But yet we heard somebody interject into this case that he was out chipping golf balls. I assume you do that with a golf club. I don't know if you ever hear anybody on the witness stand tell you that this man was out chipping golf balls. Did you ever hear that? On the night of June 12th? There is no evidence in this case to that effect.
And then I believe the suggestion was made that that black bag was put into the golf bag with the golf clubs. There it is. You have it in evidence. You find that little bag, the one with the golf balls, the one Allan Park described, the one Kato Kaelin described, let me know. That is what you want to know, isn't it? Don't you want to know what was in that little bag, the one he wouldn't let anybody touch, the one that disappeared? They had showed these bags to Judge Delbert Wong. Why didn't they show him that one? There was the issue of the white Reebok shoes. They were all over Detective Lange about taking those white Reebok shoes home. Why did Detective Lange pick up those white Reebok shoes in the first place? Who told him that they had any amount of relevancy, any relevancy at all to this particular case? Who directed him to those white shoes? Who said that they had on those white shoes the evening before when they were asked by the detective? You know who. No one testified to having seen this man, this Defendant, O.J. Simpson, wearing white Reebok tennis shoes that night. Kato Kaelin didn't say it. You see that picture from the recital, the one they want to show you. Do you see any white Reebok tennis shoes on this man's feet in that photograph? What is up with that? What is up with that? Why is he sending them to get white Reebok shoes? He didn't wear white Reebok shoes that night. There is no evidence of that in this case.
MR. COCHRAN: Object.
THE COURT: Overruled.
MR. DARDEN: Smoke. Smoke, ladies and gentlemen. They are blowing smoke. And let me tell you, they made a big deal out of those white Reebok tennis shoes. They were all over Detective Lange about taking those shoes home. Remember? Remember that? They were all over him. They were trying to make him look like a fool for taking those white Reebok shoes home. Did you hear in this trial at any time that there was any forensic evidence, that there was any forensic value to those shoes? Did you hear anything about hair and blood and fiber or anything having to do with those white Reebok tennis shoes? They sent Detective Lange off on a wild goose chase and when the goose got to the witness stand they tried to roast him. They want you to throw your common sense out the window, just chuck it out the window. You can't do that.
They talk all this stuff about race and everything. We got one racist cop and on the last time, from what the evidence is--and trust me, I am not an apologist for this man--but the last time, according to the evidence, that anybody heard him use this slur was in 1988. They say since he used it in 1988 he must be a racist. Well, the last time that we know of from the stand that the Defendant beat up was in 1989. If you say it in `88 and you are a racist in `94, well, what are you if you beat her in `89? What are you in `94? But they want you to apply double standards. I will go back to Martin because I feel comfortable with Martin Luther King. Actually I have some Malcolm X, but I'm not going to drop that today. I don't want to get that deep. But Martin Luther King. For Martin Luther King justice was a critical issue in his life here on earth and it was more than a legal issue and it was more than a moral issue; it was a spiritual issue. And let me read to you what he said about justice. And they are just sitting there listening to me instead of staying with me. You got that quote? Are you still looking for that quote?
(Brief pause.)
MR. DARDEN: He never does that when Marcia Clark is up here talking. I think it is a very appropriate quote for this case--and if he let's that happen again--you are lucky today is the last day of the trial. Read along with me what Martin Luther King said about justice. "Justice is the same for all issues. It cannot be categorized. It is not possible to be in favor of justice for some people and not be in favor of justice for all people. Justice cannot be divided. Justice is indivisible." Okay. We can't have a system of law, a system of justice or a concept of justice or a concept of law or a legal standard of burden of proof. We can't have reasonable doubt over here for everybody else and then have another reasonable doubt standard for a particular individual. That ain't justice, okay? That is not justice. That is what he is talking about. That is what he is talking about. He is talking about a double standard of justice. We can't have that.
Let me ask you to ask yourself something. Ask yourselves this when you are in the jury room. As you go through all of that evidence--and I know you are going to critique each and every piece of it. I know you are. I can tell just by looking at you that you are. You are not going to let anything slip by you. You are not going to let anything get by you. You are going to take that evidence, take it apart, and you are going to review it. Ask yourself something as you look at that evidence and assess how important or significant it is to you in this case as you ask yourself whether it incriminates the Defendant or not, as you ask yourself, as they want you to ask yourself, is it planted or not? Ask yourself, hey, if this wasn't O.J. Simpson, would I even be thinking that this might be planted? Would I even be thinking that he wasn't guilty? Am I applying a double standard? Just ask yourself that. If it was anybody else, the same fine lawyers, the same defense, how would you view the case then? Throughout this case they have sent you and us on these little wild goose chases, chasing these red herrings. And you know some people call them red herrings, some people call them deceptions. Do you have my next exhibit ready? Are you reading along with me in this thing? I just gave you. What are you guys--
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Page 11.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: They say that I am not following my script. Item 5. Have you got that picture?
(Brief pause.)
MR. DARDEN: Think of all the wild goose chases we went on. You remember early on in the case that one time we discussed the issue of the blood drops at Rockingham and how they got there? And there are all kinds of questions, lots of questions, lots of cross-examination directed at the officers. And as you recall, there appeared to be, on the part of the Defense, an attempt to suggest to you that those blood drops at Rockingham were planted? Remember that? Remember how much time we spent on that? Remember how much time they spent crucifying Fung up here on the witness stand about blood drops at Rockingham? Remember the implications of all of that, how they attempted to suggest that he hadn't bled that night before going to Chicago?
MR. SCHECK: Your Honor, objection. Improper rebuttal. No such argument.
THE COURT: Overruled. Counsel, who is making the objections here, you or Mr. Cochran?
MR. COCHRAN: We have two of us, your Honor, as they have two.
THE COURT: One person is making the objections. One person is making the objections. Who is making the objections?
MR. COCHRAN: We will have to talk.
THE COURT: Overruled. Proceed.
MR. DARDEN: Thank you. As they say, what is done in the dark will come to light. I just heard that yesterday. Remember this photograph? Here is another red herring we all went chasing after. Remember that? The police had contaminated the scene, they had traipsed through that scene, crime scene. You remember that. And they threw this photograph up there and what did you think? You thought. Oh, my God, you thought contamination. Garbage in, garbage out. Remember all that stuff? Remember that photograph? Look at the little square there on the right. See that little square there, (Indicating), where they blocked out the name of the media entity that produced that footage?
MR. COCHRAN: Objection, your Honor. That was required to do.
THE COURT: Yes. That was required by the court. Proceed.
MR. DARDEN: Remember they put that photograph up there?
THE COURT: Who has got a laser. Mr. Wooden?
MR. DARDEN: That is okay. Then what do we do? We went and we got a video. We went and we got a video. Do you have the video? Please. Back it up.
(A videotape was played.)
MR. DARDEN: What did we find out when we went and got that video? We found out that when those officers walked up that walkway that the tape had already been taken down, that the crime scene had already been disbanded. Remember that? They tell you not to believe the messenger. And then Henry Lee comes in here and talks about, you know, possible, maybe, want to be, might be, I don't know, could be portions of imprints or footprints or whatever, and he is making these calls on photographs taken on June 25th. You see the cops walking up and down that walkway after the crime scene has been disbanded?
MR. COCHRAN: Objection, that is misleading, your Honor.
THE COURT: Overruled.
MR. COCHRAN: That was not that walkway.
THE COURT: Overruled. Overruled. Proceed.
MR. DARDEN: And they tell you not to believe the messenger. And what about the cuts? What about the cuts? Was he cut? When was he cut? They tell you not to believe our message. How many times was he cut that night or the night of June 12th? Is it a coincidence that apparently at about the same time that these people are being butchered he somehow gets cut? And when did he get cut? When did he say he got cut? When did Dr. Baden say he got cut? And when did Dr. Huisenga say he got cut? Don't you think that that little deal in Chicago with the glass--and Marcia Clark will be talking more about that. Are you going to talk more about that?
MS. CLARK: About the glass?
MR. DARDEN: Yes.
MS. CLARK: Uh-huh.
(Brief pause.)
MR. DARDEN: Awfully convenient. How many times can one person get cut in how many different states in one night in one morning? They called him. He knew he had to come back. They said, oh, he just came back. Where was he going to go? I find him. And they tell you not to trust the messenger. And when they showed you photographs during their argument, they showed you all these photographs of the Defendant's body, but they didn't show you that close-up photograph of his left hand. I'm not even going to ask you to put it up there. They didn't show that. Take a look at that photograph. Look at all those cuts. They are all over his hand. They are all over his left hand. That is the same hand that was left exposed during the commission of those murders because Ron Goldman pulled that glove off his hand. And they talk about, oh, well, does it look like O.J. Simpson was in a struggle for his life? It wasn't O.J. Simpson's life that was at stake. He wasn't the one about to lose his life. It was Ron. It was Ron Goldman who was in a life struggle. Look at the nicks and the cuts on him. We talk about heroes. We talk about heroes. A hero is a man that would rush into a life-threatening situation to save a woman without ever thinking about himself first. There are no heroes in this courtroom today. They called Ron Shipp a liar and they really went after him, the whole family. If you are a Prosecutor that really puts you in a difficult situation, when someone from the family comes up here to testify. We don't want to beat up on someone's family. We don't want to do that. This is family. We understand family. We understand why we have it, why they are so important to us, culturally speaking. I know mine is. My big brother would do anything for me, like yours would. But you have to assess the credibility of those folks, just like all the other folks that testified in this case. But they went after Ron Shipp and they had to go after Ron Shipp. They talk about Ron Shipp, his eyes being red and all of this stuff, you know. When you think about--when you think on the issue of whether Ron Shipp was drunk or something that night, I hope that you go back and you read Arnelle Simpson's testimony. And I will just leave it at that. And I hope that you will reflect on her testimony about Ron Shipp. But Ron Shipp, well, they tore into him early on in the trial, right, and that was the first real indication of just what this whole thing was going to be. And they tore into Ron Shipp. And let me offer to you a reasonable explanation for Ron Shipp's eyes being red the night of June 13th. Could it be because he knew that his friend Nicole was dead and that he knew his other friend had killed her?
MR. COCHRAN: I object to that, your Honor. That is misleading.
THE COURT: Overruled.
MR. DARDEN: They talk about this man's demeanor after the murders. What did Ron Shipp say about his demeanor? He says they went up into that bedroom, and they did--
MR. COCHRAN: I object to the form of that, "They did." I object to the form.
THE COURT: Overruled. Overruled, counsel. This is argument.
MR. DARDEN: And what did the Defendant say? To be honest, I had been having dreams of killing her, and chuckled. They say that some people are afraid to hear the truth. I'm just the messenger. He chuckled. Ron Shipp had been a friend of this man for many, many years, to the Defendant. He was his personal policeman. He did all kind of things for him, all kind of things for him. We saw Ron Shipp in those photographs with the Defendant at his forty birthday party. He come over and used the Jacuzzi and the pool. Looked like Kato had to ask permission to use the Jacuzzi. Ron apparently just came over and used it. Ron Shipp told you that he would not have the blood of Nicole on his hands. And it is up to you to decide how credible he is or what significance you want to attach to his testimony, if at all, and it is up to you. But you watched him on the stand and you tell me didn't he look genuine? Didn't he look like he was hurting? In 1989 he went and talked to the Defendant about the beating he inflicted on Nicole. And I heard lawyers yesterday talk briefly about domestic violence and just slough it off, just slough it off to the side like it didn't mean anything. That is because they can't touch it and they can't deal with it. And they said that I could call Lenore Walker. There is a code section in the evidence code that says I can't call Lenore Walker. They know that. But oh, if they had. Ron Shipp was feeling guilty. Yesterday someone threw out this notion that the murderer was after Ron Goldman's envelope. When you get the evidence back there and the photographs, take a look at the envelope. It is for the most part sealed still. That is the way they found it, sealed closed for the most part. Nobody was after that envelope. If someone was there to commit a theft, well, you saw that condo. You saw how nice it was. Is there any indication, any evidence at all that anybody went into the condo to steal anything when they easily could have? This case has nothing to do with theft and robbery. This case only has to do with revenge and jealousy and control and rage. And I was referred to as Dr. Darden yesterday. Well, you know what? I don't know a whole lot about everything, but there is some things that I do know a whole lot about.
MR. COCHRAN: Object to the form of that, your Honor, self-serving.
THE COURT: Overruled.
MR. DARDEN: You don't need a Ph.D. to see what is going on here. Your life experience I think will help you understand what is going on here, just what you know, just what you read in the papers, just what you learned in school and just what you heard from your friends and your girlfriends. Someone suggested that that pathway, this pathway of death, this walkway of death where these two people lay wasn't pitch black that night, that it would have been easy to see two bodies laying there. That ain't true. That is not the evidence in this case. Mr. Karpf testified. He lived next door. He testified that the lighting wasn't great at that location. And Steven Schwab testified that that side of the street is dark. And you can find that testimony at page 13813 and 13086. Just reflect on the type of street lights they got out, those orange things. Everything is dark out there. I don't know why they have those things.
MR. COCHRAN: Your Honor, that is improper argument.
THE COURT: Overruled.
MR. DARDEN: If you don't want to rely on that, rely on Officer Riske's testimony and rely on Sukru Boztepe's testimony. He followed the dog, the dog--Kato, the dog; not Kato the human, but Kato the dog led Sukru to the bodies, and when the dog led Sukru up to the path to the bodies, even Sukru Boztepe had trouble seeing the bodies, and he walked right up there. He testified at page 13940 that he didn't even notice the bodies at first. And then he went and got a police officer, Robert Riske. And at page 14013, you remember his testimony, he testified that the lighting was very poor. "It actually took us a few seconds to find the bodies it was so dark." Robert Riske, Officer Riske testified. Keep in mind this is somebody who has been told there are a couple of dead bodies right up there. He is looking for bodies, unlike some other people that weren't looking for bodies, like Ellen Aaronson and Mandel and the other people out on a date strolling up and down the street. This is a policeman on duty. He is told there are two dead people up this walkway, and as he walks up the walkway he doesn't even see bodies initially. "It actually took us a few seconds to find the body so it was--we didn't see the bodies at all until we were directed by the witnesses." That is what Officer Riske said. And even then had to use a flashlight. And they say to you, don't believe the messenger. You are the ultimate trier of fact in this case. It is up to you to decide what is true and what isn't true, what is fact, what is not fact, what is material and what is irrelevant, and what is helpful to you in resolving this case and what isn't. It is all up to you. And we don't have a problem with that. I don't mind you having this case. Especially since we kept you in custody eight months now, I guess we kind of owe it to you. But when you resolve this case I just hope that you resolve it based on the evidence and not on the rhetoric of myself or others. They want you to believe that because there are no socks shown in that video--remember the Willie Ford video? I'm not going to even show it to you because I want to hurry up and get off this thing, and I have about eight more pages and I want to finish this morning.
THE COURT: All right. When you find a convenient breaking point--
MR. DARDEN: How about eleven o'clock?
THE COURT: The court reporter needs a break, so find a breaking point.
MR. DARDEN: 10:30 or now or close to now?
THE COURT: Closer.
MR. DARDEN: Closer. But just keep in mind, keep in mind the testimony you heard about those socks. They keep saying socks, socks, socks, and they keep talking about transfers, wet transfer stains on the inside no. 3 surface, inside the sock. Now, if you wear socks, you don't take your shoe off and then grab at the end of your toe and pull your sock off. They talk about planting blood and all this stuff. That is nonsense. When you pull off a sock, you stick your thumb or your finger into the sock, don't you, into the sock and you pull your sock down from the inside. You pull your sock down to your foot. Stains 1 and 2, he got that out there killing people. Stain 3 perhaps--
MR. COCHRAN: Your Honor, I object to this. Misstates the evidence.
THE COURT: Overruled.
MR. COCHRAN: Misstates the evidence.
THE COURT: Reasonable inference from the evidence.
MR. DARDEN: Stain no. 3. He could have got the blood off his head, underneath the fingernail. He could have taken the sock off, laid it down and then the sock touched the--
MR. COCHRAN: Objection, your Honor. Who knows? Object.
THE COURT: Overruled, counsel.
MR. DARDEN: You decide. You look at the pictures of the socks. How else do you lay a sock down? I mean, the sides are touching. They are all touching in there. This is no big deal. This is all smoke. Common sense tells you that. Common sense dictates that. And when they say the socks aren't there, the socks aren't there; the socks are there. You heard Mazzola. You heard Fung testify. You heard Willie Ford testify. The reason those socks aren't in the video is because it was his job to go in there and videotape that room after Dennis Fung finished collecting the evidence. And they want to tell you about straps and stuff. And you know, you didn't really get that because that just vhroom, that was something they just threw in to throw right passed you.
MR. COCHRAN: Your Honor, I object to the form of that.
THE COURT: Overruled.
MR. DARDEN: They want to talk about the timer in the video. What did Willie Ford tell you about the time? He didn't even care about the time in the video. He never even check the time in the video. He never adjusted the timer in the video because it had nothing to do with his purpose in being there. And his purpose--
MR. COCHRAN: Misstates the evidence, your Honor.
THE COURT: Overruled.
MR. DARDEN: And his purpose was in videotaping that particular room. It was for civil liability purposes. He didn't want to contaminate the evidence, contaminate the room, so he had to wait until after Fung had collected the evidence from the room. That is Willie ford's testimony. You heard that brother testify. He looked like a co-conspirator to you? And they say don't trust the messenger.
THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning recess at this time. Remember all my admonitions to you. We will stand in recess for fifteen minutes.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Counsel, have a seat, please.
(Brief pause.)
THE COURT: All right. Back on the record. All parties are again present. Deputy Smith, let's have the jurors, please.
MR. SCHECK: Your Honor, before the jury comes in could we address the court?
THE COURT: One issue, yes.
MR. SCHECK: Your Honor, when I began my closing argument yesterday there was an objection that Miss Clark made with respect to improper argument which she misheard the testimony and we said I believe an innocent man was accused and the transcript bore it out. However, I do have some concerns here with respect to improper vouching. I think it is improper to make an argument to the jury that Marcia and I are the ones with courage. That is classic improper vouching. I don't think a District Attorney is allowed to say that in closing argument and that is why we objected. I think it is improper for the District Attorney to talk about I prosecute police officers so I know. The implication is either, A, don't worry, I will take care of mark Fuhrman, I will prosecute; B, if Detective Vannatter is lying, don't worry, I would know that. I think that is improper vouching. I think it is improper to make an argument everybody knows he is guilty. That is wrong. I don't think that that kind of argument is permissible. I think it is impermissible. If they wanted to call an expert about domestic violence, that is one thing, but I think it is impermissible to say I know a lot about certain things with respect to domestic violence issues. And most importantly, there was this whole thing where they put up the video, where as was indicated, the court had ordered that that part be redacted and indicated deception. But worse of all, he then makes an argument that Dr. Lee--that those--that infers to the jury or directly states that those shoeprints could have been left by those officers taking the blanket away when Agent Bodziak specifically testified, agreeing with Dr. Lee that they could not be, so that directly misstates the evidence.
Finally, I would make this request, because this is the Prosecution's rebuttal summation and we do not have a chance to get back up, and if there were misstatements of evidence in their opening and closing argument we were able to get back up and read transcript and correct it. If we make an argument with respect to misstating the evidence, I would respectfully request that if the court is going to overrule it, overrule it with the caveat, which I know is the thrust and substance of the court's ruling, the jury's recollection controls, because I think that is the fair and neutral way to do it. And so I make that request of the court and I would also request the court caution counsel and that we have no more of this improper vouching because I think it is an improper form of argument, and I'm talking about those specific matters.
THE COURT: All right. Matter submitted?
MR. DARDEN: Submitted.
THE COURT: All right. The objection is noted. They are overruled. Let's have the jury, please.
MR. COCHRAN: Your Honor, before that, there are a series of photographs of officers that the Prosecution expects to show that I was shown during this break, during Miss Clark's presentation, and I wanted--I have an objection I wanted to lodge.
THE COURT: What is your objection?
MR. COCHRAN: I think it is it is very similar to when we wanted to show the photographs of Mr. Simpson with the gloves on. That was a still. These are photographs of Riske and the various officers, Lange and the others, and we object. And with regard to the last two photographs that I was shown, that still has the KTLA channel 5 logo on those, so I wanted to lodge my objection, having just seen these things at this point. I think it is analogous and I think it is what the court has said. I haven't seen these before and I presume they would be pictures put up there that she will be testifying about.
THE COURT: Is this four--four-photograph--
MR. COCHRAN: No, no. I think they are one at a time. You can see them if you care to.
MS. CLARK: They are still photographs of the police officers.
MR. COCHRAN: Mostly police officers. I think Mazzola is in there also.
MS. CLARK: They are still photos. I just told Mr. Cochran, when he said he was going to object to this, that the court overruled my objection. I had objected to the stills that they were going to use. They elected not to use them ultimately, but the court overruled it saying the stills were proper. So I made this exhibit on that ruling.
MR. COCHRAN: Well, again the court can see the last photo with the KTLA seal.
THE COURT: Well, the KTLA seal is irrelevant.
MR. COCHRAN: I thought it was irrelevant, but you had us cover it up before, I thought. You had us cover that up. That was--
THE COURT: That is at a time where the source of it was not relevant to the issue.
MR. COCHRAN: All right. All right.
THE COURT: All right.
MR. SCHECK: Your Honor, one more--
THE COURT: Noted.
MR. SCHECK: --objection I want to note for the record and that is I also think it was an improper argument that Mr. Simpson gave his bags to his lawyer on the way in. First of all, there is no facts in the record establishing that Mr. Kardashian was in the act of representing Mr. Simpson at that point in time or that there was any attorney/client relationship at that point in time, and I think it is highly inflammatory and improper argument, and also, it is not in accord with the known facts in the case. And another one I think that came perilously close to with respect to the discussion of darkness at Bundy, and that is, we all were at the scene. Now, Mr. Darden wasn't, I appreciate that, on the night that we did the jury view, and I have no objection to him citing from certain specific points in the record, but I would just like it noted, we all know what the lighting was like there because we recreated the best we could and then the Prosecution chose not to take the jury on a nighttime jury view. It was their decision. And it seems to me that in terms of good faith arguments based on what is not--what is knowledge of all the parties here, that I think they have to be very, very careful in terms of raising inferences to the jury about what could be seen and couldn't be seen, in light of what we know.
THE COURT: Well, what we know is from a recreation, counsel. The testimony of the witnesses as to approaching that walkway under conditions of darkness on June the 12th and June the 13th are in the record and it is a fair inference.
MR. SCHECK: To--
THE COURT: The argument is concluded, counsel.
MR. SCHECK: I understand that. I'm just saying that it is perilously close.
THE COURT: It is a fair inference that can be drawn from the record. Also, I'm going to admonish counsel on both sides not to make any head shakes, gestures grimaces. I have seen it on both sides. And if I see it again, I'm going to stop you in front of the jury and I'm going to upbraid you in front of the jury. Both sides. Both sides have done it.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. The record should reflect that we have been rejoined by all the members of our jury panel. I just want to make sure we are safe. Mr. Darden, you may continue.
MR. DARDEN: Thank you, your Honor. Good morning again. I'm just about done. Just about done, because I'm very anxious to get this case to you so that you can resolve it, so that we can have some closure as it relates to this case. One of the things that was mentioned the other day was something about Robert Heidstra, and you remember Mr. Heidstra. He was the witness who had the laminated letter from F. Lee Bailey saying he was going to be an important witness for the Defense. And much to do was made about Mr. Heidstra and why we didn't call him, we, the Prosecution didn't call him, and I think it was suggested that we didn't call him because he didn't fit our timeline.
Well, they don't know what we are thinking. They can't read our minds. They called Robert Heidstra in the Defense case. They don't know whether or not we were going to call him in the rebuttal case. They don't know that. Robert Heidstra is a very important witness. They called him. Fine. As long you heard the testimony, that is all that mattered. He testified that he left his house around 10:15, right? Isn't that what he testified to? He said he saw the clock in his apartment, as I recall. He left with his dogs. He left on a walk. He walked around the block. Halfway around the block, and as he approached Bundy, he heard these dogs barking, and he told you that it was around 10:30. And I asked him some questions. I asked him did you look at your watch when you first heard those dogs barking? No. All he could do was give you an approximation as to what time he heard those dogs barking, and in his best estimate, his best guess, it was about 10:30. And so he says he heard Kato, the dog, bark around 10:30 and that he changed directions and walked down that alleyway. He walked down the alley on the opposite side of Bundy. That is the side opposite from Nicole's condo. He walks down the alley. And as he walks down the alley he heard someone yell, "Hey, hey, hey." And he stopped and he paused and he told you that "Hey, hey, hey" voice sounded to him to be the voice of a young man, and he also told you that he heard the voice of another man, an older man, perhaps with a heavier voice. Remember that? Remember that? And he continued to walk down that alleyway, and when he got down to Dorothy he looked west toward Bundy and what did he see? What did he tell you he saw? He saw a vehicle coming east from the direction, from the direction of the alleyway, the alleyway that ran up behind Nicole Brown's condo. It was his vehicle. It was the Defendant.
MR. COCHRAN: Your Honor, I object. That misstates the evidence, your Honor.
THE COURT: Overruled.
MR. DARDEN: I asked Mr. Heidstra what color was that vehicle? He said it was white. Just like the Defendant's vehicle. I asked him if the vehicle had tinted windows? He said it did. You look at the pictures of the Defendant's Bronco. Tinted windows.
Yesterday someone stood up here and said to you Heidstra never said anything about Bronco. He said a Jeep or a van. I asked Mr. Heidstra about the vehicle he saw and he told you right here on the witness stand that the vehicle he saw was a Blazer or a Bronco. I asked him specifically. I asked him that specifically at pages 36339 and 36471. And at 36339 he told you--he testified. He was a Defense witness. He testified that the vehicle he saw could have been a Bronco. He didn't look at his watch. He didn't look to see what time it was when he first saw that Bronco. And what did that Bronco do?
MR. COCHRAN: Your Honor, misstates the evidence again, your Honor.
THE COURT: Counsel, ladies and gentlemen, you've heard all the evidence. As I indicated to you when we started these arguments, counsel may argue to you the evidence and draw reasonable inferences from that evidence; however, you are the exclusive judges as to what facts exist from the evidence in this case. Proceed, counsel.
MR. DARDEN: Thank you, your Honor. And that is true. But this is their witness. This is Robert Heidstra. That is what he testified to here in the transcript. It could have been a Bronco. It could have been a Bronco. That is what he said. Chevy Blazer or a Bronco. Remember that? And I asked him a question. Okay. Well, you say Chevy Blazer or a Bronco. I asked him a question at page 36471. I asked Mr. Heidstra: "A Chevy Blazer and a Ford Bronco looks very much alike to you, doesn't it?"
And his answer was: "Yeah, they look alike. Certainly from a distance." I would suggest to you that the vehicle Heidstra saw leaving Bundy that night was a white Bronco. It is a white Bronco that has all that blood in it. It is the white Bronco that is parked askew at the Defendant's house. This is their witness. And I said it the other day and I will say it again today, I don't care what the time is. It doesn't matter. It doesn't matter at all. He didn't look at his watch at the time that he saw that Bronco or that Blazer. And I asked him about that and I asked him if he looked at his watch and he told us he didn't look at his watch. And then I asked him how long it would take to get from Bundy to the Defendant's house, because as you recall, Mr. Heidstra washed cars, detailed cars for the Salingers, the people that lived directly next door to the Defendant's property. And I asked him at page 36413, counsel, at line 3, I asked him: "Mr. Heidstra, would they have enough time to drive to 360 north Rockingham at arrive by 10:52? " his answer:
"Yes, you could do it. Yes, sure." And I went on to ask him: "You could arrive there by 10:45, correct?" Line 14 page 36413, and at line 15 on that same page his answer was: "Right, yes." They want you to believe that Kato Kaelin heard the thumps at 10:45, and Miss Clark will explain to you how it is that we extrapolate some of the facts, some of the hard facts in this case, facts that can't be disputed and when you consider all the testimony and facts that help establish what time Kato Kaelin actually heard those thumps. But it doesn't matter. If Kaelin says 10:45 and that is his best estimate, Mr. Heidstra says, hey, there is enough time to drive that Bronco from this death scene, this scene of murder, to the Defendant's house. And finally we get to gloves. Finally we come around full circle once again to the issue of gloves. And I watched one of the Defense lawyers stand up here and pull a watch cap over their head and ask you what they looked like, if it changed their appearance. Well, you know, in a lighted courtroom at the intersection of Temple and Broadway it probably doesn't change his appearance at all, especially after somebody has been standing up in front of you for two or three hours. But the issue is would it change his appearance? Would it affect one's ability to recognize him if it was ten o'clock at night? How about 10:03? Will it affect your ability to recognize him in the dark? And what if he had on dark cotton sweats? And what if it was dark out there in front of that condo the way Officer Riske described? What if he had a big knife? These little demonstrations, what we saw, and then we saw one of the lawyers struggle with a pair of gloves. These are the gloves. These gloves are size small. The Defendant's gloves were extra large. We heard so much about the scriptures. I'm not even going to read it. Just read proverbs 6 one day when this is all over. Now, if I'm the messenger, you know I have delivered the message as best as I could, and the message is that he killed these two people and that is what the evidence dictates. They mess around with our science evidence and stuff and try to cause you to lose confidence in that evidence, but Marcia Clark will go back and go over some of the--some of the points we think you might be interested in hearing about, to sort of straighten that out. But I know that you are going to do a good job when you go into the jury room. All I could ever ask from you and all that I ask from you today is that you try and be as objective as you possibly can be, that you not allow any passion or emotion or any bias, any of that human feeling--these human feelings we all have to interfere with the decision you have to make. When I stood before you back in January I said there were many victims in this case. And there are many interests involved in this case. It is an important case to O.J. Simpson and it is an important case to the victims and their families. We just want you to be fair. I just want you to do the right thing. That means the right thing under the law.
We believe we have proven this case beyond a reasonable doubt. And it is unfortunate, it is unfortunate what jealousy does to you. It is unfortunate that obsession. It is unfortunate that obsession can do these things to you. It is unfortunate that two innocent people are dead because this got in this man's way. That is the message we wanted to deliver and I'm the messenger and I'm proud to have delivered it. I thank you for your verdict in advance, in the event I don't get a chance to talk to you then. All of us owe you a debt gratitude. God bless you.
THE COURT: Miss Clark.
MS. CLARK: Thank you, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
REBUTTAL ARGUMENT BY MS. CLARK:
MS. CLARK: Good morning.
THE JURY: Good morning.
MS. CLARK: How are you? I'm not allowed to ask you that, I just realized that. Excuse me. I know you are tired of hearing us talk. I'm going to get right into the evidence because I want to go through what they said. I want to show you how the evidence corrects that and I want to talk to you about logic. I want to talk to you about what makes sense, okay, because you have heard a lot of things that really make no sense. You have been here. Lawyers spin stories and spin yarns, too, with no evidence to it. Not only no evidence, but no logic, and in that specifically I'm talking about this story about Mark Fuhrman swiping the bloody glove inside the Bronco. That is a story. That is an interesting story, but it has no substance. Not only does it have no proof to it, but it also has no logic to it, and I will show you why and that is what I want to talk to you about now; logic, what makes sense.
In this case we have seen what the Defendant has done and it has been a very contorted, inconsistent thing. I'm going to point out the inconsistencies to you, but basically they have jumped from we are stupid bumblers and we are brilliant conspirators, and he includes us in this. And I find that particularly painful, ladies and gentlemen, particularly painful, because I have been doing this a lot of years. I didn't start here, I started on that side of counsel table. I was a Defense attorney and I know what the ethical obligations are of a Prosecutor. I took a cut in pay to join this office because I believe in this job. I believe in doing it fairly and doing it right and I like the luxury of being a Prosecutor because I have the luxury on any case of going to the judge and saying guess what, your Honor, dismiss it, it is not here. Ladies and gentlemen, I can come to you and I can say don't convict, it is not here.
MR. COCHRAN: Your Honor, I object. This is irrelevant.
THE COURT: Overruled.
MS. CLARK: I have that right. I have that luxury. This job gives me that luxury. It doesn't give me a lot of money, but it gives me that luxury. I can get up in the morning and look myself in the mirror and say I tell you the truth. I will never ask for a conviction unless I should, unless the law says I must, unless he is proven guilty beyond a reasonable doubt on credible evidence that you can trust, that you can rely on. I can never do it otherwise. That is my obligation.
MR. COCHRAN: Objection, your. Honor, this is improper.
MR. SCHECK: Improper.
THE COURT: Overruled.
MS. CLARK: And that is why I'm standing here before you today, because we have proven it to you, ladies and gentlemen. If I thought for one minute there was a conspiracy--
MR. COCHRAN: Object, your Honor. This is improper.
MR. SCHECK: Improper vouching.
THE COURT: Be seated. Ladies and gentlemen, would you have a seat in the jury room, please.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. The record should reflect the jury has withdrawn from the courtroom. Miss Clark, the last comment that you made, "If I thought for a minute there was a conspiracy"--
MS. CLARK: I didn't get to finish it. It would be my obligation to dismiss this case.
THE COURT: We are close. We are close here, counsel.
MR. SCHECK: Your Honor, I would ask an instruction.
MS. CLARK: Your Honor, in view of the--
MR. SCHECK: This has been highly improper.
THE COURT: Wait. Sit down.
MR. SCHECK: I'm sorry.
THE COURT: You are close, Miss Clark. I realize it is not a complete thought, but what you can argue is what the evidence shows. You can argue ethical obligations that Prosecutors have. I'm just cautioning here that you are close here. You are close to the line.
MS. CLARK: Okay, okay.
THE COURT: You are not over it yet. I was--Mr. Scheck.
MS. CLARK: Excuse me. May I just ask for one point of clarification? The thought, as I completed it, is acceptable, is it not?
THE COURT: It is, but every time the "I's" get in there--
MS. CLARK: Yes. Let me just mention this. I have never had a Defense attorney make an argument like Mr. Cochran made, nor have I ever seen a Defense attorney get up and ask for jury nullification in this way.
THE COURT: It was very artfully phrased.
MS. CLARK: I will reserve comment, but what I'm saying, your Honor, is that when a Defense attorney does take the gloves off that way, hit below the belt the way Mr. Cochran does, the law permits us to argue our ethical obligations. The court is aware of that. Under People was Beamon, under U.S. versus Wade, we have the right then to argue what our obligations are. I get to tell the truth, the truth that I have a luxury, they don't have a luxury. I didn't have until I joined this office. They have to represent guilty people and stand you before the jury and say it hasn't been proven, no matter how well it has been proven.
MR. COCHRAN: Objection.
THE COURT: I'm sorry, counsel. You are objecting to her argument to the court?
MR. COCHRAN: Yes, I object to that statement, guilty people. I am objecting to that. I think I have a right to do that, your Honor. I do.
MS. CLARK: Anyway, these are not remarks that I make to the jury, but when counsel takes off the gloves, makes personal attacks the way he has, saying basically that we are criminals, then we have the right under the law to correct that misimpression and to tell the jury we have ethical obligations that prevent us from pursuing a Prosecution unless we believe a hundred percent.
THE COURT: There is the problem.
MS. CLARK: Okay.
THE COURT: Unless you believe the evidence shows it.
MS. CLARK: Okay. Right.
THE COURT: You have to be clear. You cannot infer that you have personal knowledge beyond the state of the evidence.
MS. CLARK: Right. Agreed. No question. I wouldn't do that.
THE COURT: Mr. Scheck.
MR. SCHECK: Your Honor, this--they already have. They have gone over the line. Now, as the court noted, the argument yesterday, and it is one that these Prosecutors have to live with, is that they put Mark Fuhrman on the witness stand, they--he testified in a way about--you know, Mr. Cochran accurately cited the record. He read from it. Talking about how he went through all this terrible personal anguish and all these outside issues were raised and he was presented as a totally credible witness. Now, these Prosecutors have to get up in front of the jury and say he is a racist and a liar. They have to do that because that is what happened. The jury is allowed to consider the fact that they were plainly taken by surprise by the perjury of their own witness. They also have a right to consider the fact that other officers probably knew these facts and never came forward. That is fair argument and fair comment on the evidence. What is unfair argument and unfair comment and clear law is for a Prosecutor to stand up and say that I prosecute police officers, Marcia and I are the ones with courage, and then to go on now and say that she used to be a Defense lawyer and now she is a Prosecutor and she has the luxury of dismissing cases if the evidence is not there and coming forward if she thought something was exculpatory, et cetera, and then vouching personally for the reliability of the evidence, is a highly, highly improper form of argument in this state, every state. They have gone way over the line and it has really got to stop. It has really got to stop. And I don't like to sit here and constantly say, "Objection, objection, objection, objection" to improper forms of argument. And the court is being patient and controlled in terms of overruling it, but this is way, way over the line. I mean, I have been teaching law for eighteen years, and I never heard this kind of stuff, and I dare say that people--I mean, it is amazing. It is amazing. They cannot say it. And what is particularly galling is that they are saying it when they are the ones that have to live with the fact that one of their principle witnesses perjured himself after they put him on. It hurts, but Mr. Cochran's comments with respect to that are fair on the evidence, and trying to vouch in this fashion is improper--improper rebuttal and improper form of argument period.
THE COURT: Mr. Scheck, what I heard also was you can't trust the messengers and you can't trust the message.
MR. SCHECK: Well, those were--
THE COURT: Wait, wait, wait.
MR. SCHECK: Sorry.
THE COURT: And Mr. Darden clearly cast himself as a messenger in his argument. That was a clear, clear shot at the integrity of counsel on this side, and they are entitled to respond.
MR. SCHECK: Wait a second. I think that is incorrect, and please hear me on this. Mr. Cochran's arguments yesterday, Mr. Darden got up and said I'm just the messenger sending you evidence. Mr. Cochran got up and said the messengers in this case are the witnesses. The messengers are mark Fuhrman--oh, he did--and Vannatter. He talked about these messengers being deceivers and that is the argument. Now, I mean, I don't see how the court can allow this kind of vouching if you are inferring that there is some kind of, you know, metaphor cross-over here. Mr. Cochran has a perfect right, it is a total fair comment on the evidence, to talk about these Prosecution witnesses as messengers. If Mr. Darden chooses to cast himself as a messenger, too, well, that is fine, but I didn't interpret that as a comment on Mr. Darden. It was a turn of phrase. And he specifically talked about these witnesses, and to the extent that Mr. Cochran is pointing out that Mark Fuhrman was put up there first as a credible witness and now they have to admit that he is a liar, as he did, and they are distancing themselves, that is fair comment. What is unfair comment is for them to get up here and in this fashion vouch for every other witness and every other piece of evidence in a highly improper form. They have gone way over the line, way over the line.
THE COURT: Cite me a case, counsel, California law dealing with comments of counsel.
MR. SCHECK: Well, your Honor, you have discretion here and we all know the basic principles.
THE COURT: I have cautioned and I have cautioned and I have cautioned them, counsel. Well, the California state bar is a bar that is unto itself and has its own rules.
MR. SCHECK: I have read the code on this case and I understand that you can say what you can't say in other jurisdictions about showing screens and the rest of it, but in this jurisdiction and in every other jurisdiction there are rules about vouching and they have gone over that line.
THE COURT: Well, here is the problem.
MR. SCHECK: We want an instruction.
THE COURT: No, counsel.
MR. SCHECK: The court should at least give a balancing instruction at this point to the jury that it is not the Prosecutor's personal views or personalities or anything else about the evidence that govern; it is their view of the evidence and they should take that.
THE COURT: All right.
MR. SCHECK: I think we are entitled to an instruction like that at this point.
THE COURT: What a Prosecutor may not do as a Prosecutor, may not express personal opinion or belief in a Defendant's guilt where there is some substantial danger that the jurors will interpret this as being based upon information beyond the evidence produced at trial. I have not heard that yet.
MR. SCHECK: Well, that is--that is a different--that is a different improper form of argument, and I think actually Mr. Darden was pretty close to that when he was talking about everybody knows and yesterday he was saying things like he's a murderer. I think he actually went over that line. But let's put that aside. What I'm most concerned about--
THE COURT: Are you saying that there is a substantial danger that when a Prosecutor stands up and says that the Defendant accused of murder is a murderer, that that goes over the line?
MR. SCHECK: No, no, no. I'm saying that you just read, in terms of a Prosecutor's obligation, he has got to say things like the evidence shows, we submit, and I think that in terms of rhetoric he went over that line. But let's put that aside. What I'm most concerned about, and the court frankly is not addressing here, the court can't be seriously suggesting that there--that a form of argument that says we are courageous, we know our ethical obligations, we are telling you that this evidence is correct, if I thought there was a conspiracy, I would come forward and tell you, all that, everything they have been doing this morning is an improper form of argument. It is improper vouching. And your Honor, I think you know it, and I think that we have to have an instruction here.
THE COURT: You are close here, Mr. Scheck.
MR. SCHECK: I have made my point, your Honor.
THE COURT: Thank you. All right. Miss Clark, I'm cautioning you, though.
MS. CLARK: I understand, your Honor.
THE COURT: People versus bane 5 cal.3d 839, the court's comments at 848.
MS. CLARK: I am aware.
THE COURT: You are cautioned.
MS. CLARK: Yes, your Honor. I'm going to--
THE COURT: I don't want to hear any more "I's."
MS. CLARK: Right. You won't. I'm ready. I'm ready to say no more "I's."
THE COURT: Deputy Smith.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Ladies and gentlemen, as I indicated to you earlier, argument is a very important part of the case. It is the opportunity of the lawyers to actually bring everything together in a logical and coherent way. And I indicated to you that the lawyers may argue the evidence that is in the record and draw from that evidence reasonable inferences for you to consider. Those are the guidelines. I needed to discuss a few matters out of your presence with the lawyers. We are ready to proceed. Miss Clark.
MS. CLARK: Thank you, your Honor. Once again, so as I was saying, if there is evidence of a conspiracy, it would be my obligation to dismiss, pure and simple, and I can go on to the next case.
MR. COCHRAN: Your Honor, we object again.
THE COURT: Overruled.
MS. CLARK: But there isn't, and in this case--
MR. COCHRAN: Object to that, your Honor.
THE COURT: Overruled.
MS. CLARK: I'm going to finish what I have to say to you and I'm going to do it as quickly as I can. Okay. What we have here is logic and evidence and common sense, which when you weave them all together you can see what the truth is. You can see what is really happening here. I'm going to start with a very simple example and that is the arguments that were made to you about the notification of the--to the Coroner. You might remember that counsel made a big deal about the fact that it wasn't the--the Coroner wasn't called until late, and Mr. Cochran has repeatedly referred to the rush to judgment. Now, let me address that with you for a second, the rush to judgment. The argument has been made that when they went to Rockingham, what they really wanted to do was make an arrest, right? Rush to judgment. They had it in mind that they were going to go there and arrest him and he was a suspect. And there was a reference made to a remark made by Mr. Vannatter in January or February of this year that seemed to contradict what he was telling you about his state of mind. Now, I don't know about you folks, but what I do when I have a doubt, when I wonder about what somebody really means, whether I can believe them, I look what they do, look what they do, that we were all taught as kids, actions speak louder than words. Yes, they do. Yes, they do. People can say things, we all know they can, but let's see what they do. Now, what did they do? Okay. Let's look back at the evidence that is not contested, the evidence that is--that stands unrefuted. They were out at Bundy. Commander Bushey told the initial detectives get on out there, go and make notification at Rockingham. You know that would be a problem for somebody who is famous, because if the media find out, it is all over the place, that is a very painful thing, and Commander Bushey sure doesn't want it to happen on his watch that that would happen in this case, so he told them, go out there. That is what he told you. Did they? No. They weren't sure if they were going to keep the case. I'm weaving the testimony for you together without reading from the transcript. You have it, though. I'm not going to bore you. But Detective Phillips did say we weren't sure if we were going to keep the case, if we had the resources. That was a real big problem with this case, because they only had four or six detectives in homicide over in West L.A. so they thought that it might be taken over by robbery/homicide division downtown that has many, many detectives and more resources, before they act, before they moved to make notification, which is an important thing to do in a homicide case. Your first contact with next of kin is to go and make the notification, make that contact, establish that rapport. And there might be some information that you can get from the next of kin or the person, you know, that would be very helpful to solving the case. The person could be a witness. Okay. Now, especially in this case where they have children in common, he might know who she is dating or not, because you know, they are divorced, but they still have to have contact. He might know something. It is an important first contact for them to make, so whoever is the handling detective is the one that is supposed to go. This is the testimony you've already heard. I'm not telling you anything knew. So they waited. They waited until they found out if robbery/homicide was going to take the case, and sure enough, they did. That is what happened. Vannatter and Lange came out there, and I guess they showed up around 4:00, 4:30, I think it was. All right. So they were standing out there waiting for quite a long time. Now, when Vannatter and Lange got there they--or in between I think when it was finally assigned to robbery/homicide, Commander Bushey spoke to them again and said go to Rockingham. You know, how many times do I have to say this? Go and do it. So then finally they still didn't go and do it. They still didn't run out there, okay? I can't remember, I think he said it was around the time--he couldn't be specific about the time, but he said he knew that Vannatter was there, that robbery/homicide had taken over the case. Now, Vannatter didn't get there I think until 4:00 or so. The record will refresh your memory. I can't remember exactly. I'm not trying to tell you for sure, but it was that time.
Even then they didn't go immediately. It wasn't--I think about five o'clock when they finally went to Rockingham, finally went there. Now, think about this. There were a lot of questions asked about why couldn't you have sent a rookie to go and make notification. Okay. Now, you know that doesn't make sense. If notification is an important thing, first of all, it has to be handled delicately, sensitively by people who have done this before, many times before, homicide detectives. It is one of the saddest parts of their job to have to make these notifications everyday, but they know how and they know how to deal with it. Bless you. So they are going to go and do it themselves. It is an important contact. That is their job. That is their duty, okay? So they can't send a rookie out to do it, but what should they do? Think about this now. If it is their intent to go out to Rockingham, make an arrest, because he is a suspect, there are certain things they should have done. No. 1 thing is you take back-up. You don't go by yourself. You take back-up. You take a couple of squad cars, you make notification downtown, hey, we are going to arrest and this is an important suspect, and you know, this could be a media event. You make plans. You make arrangements. They did nothing.
MR. COCHRAN: Objection, your Honor.
MS. CLARK: Zip.
MR. COCHRAN: Misleading.
MS. CLARK: They went out there and they took just the four detectives in their two cars they went over to Rockingham. That is all they did. What else should they have done ask yourself?
MR. COCHRAN: Misleading, your Honor.
THE COURT: Excuse me, counsel. Overruled. They may argue reasonable inference from the evidence that is in the record.
MR. COCHRAN: If it is misleading?
THE COURT: Counsel, have a seat.
MR. COCHRAN: I will, your Honor, but it is misleading.
MS. CLARK: Your common sense will tell you I'm not misleading you. This makes sense. I'm talking logic. I'm talking logic based on what the witnesses have told you. You know it when you hear it. Now, what else should they have done if they are going to go make an arrest that is going to take sometime? Really wrapped up. Do questioning. They could take downtown the things that you know happened when someone gets arrested. So if they know they are going to take a long time, they have a crime scene that has to be processed, they have two dead people lying out there and all that evidence around, what would they do? They would go to somebody who is going to stay at the crime scene and they would say call the Coroner, we are going to be gone a while. Call the criminalist, we are going to be gone a while. We need you to get this evidence collected and we won't be here because we are going to make an arrest. Did they do any of that? No. Now, what the evidence has shown is--and what they have testified to and what their actions tell you is true, they expected to come right back. Two of them would stay with Mr. Simpson, taking care of him, taking him to the station to get his children, making the arrangements, and two would go back to Bundy and handle the crime scene, and their actions totally support that. If they expected to be gone a long time, they wouldn't all four go or they would tell someone else take care of business for us, we are going to be gone. They didn't do that. What their actions tell you is we are coming right back. It doesn't really matter if somebody isn't taking care of business and calling the Coroner and calling the criminalist. Logic. Logic. Look at their actions. Look at their actions. You don't trust the word. Look at what they do. That is what they did. All right. Now, an argument was made to you about standing the constitution on its head, and that is because I said, look, why don't they call these witnesses? There are witnesses they should logically call. I'm talking about logic, I'm talking about reason, I'm talking about what do you expect, what would you like to hear? These are questions you are entitled to have answered. These are questions that you should consider. These are fair and reasonable questions and these are questions that do not stand the constitution on its head. I told you when I first argued to you in the beginning of all these long arguments, that they would be telling you many, many times, the Defense, we don't have to prove anything. If you heard it once, you heard it fifty times. They did. That is what they said, and that is right; they don't. But when they do, but when they try to, then you have to evaluate their evidence the same as ours. There is no difference. The jury instructions govern all the witnesses.
And so you look what is the quality of evidence that you have been given by the Defense? What witnesses have they called? What logical witnesses that you would expect to be called weren't called? That all tells you something. It is legitimate for you to consider it, you must consider it, because as I showed you in the jury instruction beyond a reasonable doubt, you must consider all of the evidence. That means everything that was done and not done. And here is an example. Thano Peratis. Remember, that was the nurse. He drew the blood. That was their witness. Now, he was their witness because he was the cornerstone of their case. Very important to make you believe that there is missing blood. But then--now I think Defense counsel made some reference to that, the notion that we--Hank Goldberg secretly went out and interviewed him. What secret? You know, if you have a question about this, ask the Judge. No attorney for either side is required to give notification to another side, oh, I'm going to go interview my witness. That makes sense, doesn't it? They don't notify us and we don't notify them. We talk to them, we give them evidence of it. We give them a statement, here, we talked to this guy. Here is the statement. That is what we do. Hank Goldberg went and talked to him. Mr. Peratis said, no, I didn't measure, no, I didn't look, and I realize I was wrong. I was trying to be very precise. Okay. Now, here is the syringe. You are going to have this back here. You can look at it. And what he said was I turn it over, I had it turned over and I couldn't see the number. And you will see when you look at the numbers and all these little lines as are sitting there like this, you are this going to be able to measure precisely how much you have got in there, but if you have it turned over, you are really not going to know. Okay. But beyond all of that, it kind of makes sense, if no one tells you must take this much blood, you are not going to look to take that much blood. You are going to take enough. You take enough for sampling, for testing, and that is what they did. Now, Thano Peratis is not truly a real important part of our case because we proved to you in many different ways the integrity of the evidence. I'm going to get into the blood evidence and why it is proven to have integrity in just a little bit. Let me start with hair and fiber, though. Jonathan, do we have this? Thank you. All right. Now, there were a number of misstatements made to you yesterday by Mr. Scheck concerning the hair and fiber evidence. I'm going to go into just a couple of them. And one thing that Mr. Scheck said was that Mr. Deedrick and Dr. Lee agreed that hair and fiber association was weak association. Well, here is what Dr. Lee testified to, page 43168. Question posed Dr. Lee. "Do you agree with the following statement: While it is difficult to make absolute individualizations ins these areas, the trace analyst can make identifications with a high degree of certainty and can often establish partial individuality of a specimen with confidence based on experience and analytical results? "Answer: I would say eighty to ninety percent that statement correct. They forgot one thing. Depends on sample. Not all the sample you can reach that degree of certainty. Some of the sample, yes, you can." In other words, it is a very good. What he said, "Can establish partial individuality with confidence." In other words, it is a very strong method of association. Now, I'm going to show you, show you the pictures, and you will see why they make that strong statement about it.
(Brief pause.)
MS. CLARK: You may remember, we showed you this during the trial. This is People's 480. Remember this? It says "Known head hairs" on the top row and then the "Hairs from the knit cap" at the bottom row, and you look at them and you compare and you see. Your eyes tell you. You don't need to look at x-rays. You don't need to look at autorads. These were the hairs in the knit cap found at the feet of Ron Goldman. This is testimony that was unrefuted. No Defense expert came in to tell you this wasn't so. And People's 481. Again, the "Defendant's known hairs," "Hairs taken from the knit cap," "Hair from Ron Goldman's shirt." You can see this.
(Brief pause.)
MS. CLARK: Mr. Scheck also told you that the blue black cotton fibers that were found on Ron Goldman's shirt, on the Rockingham glove and on the Defendant's socks, were very common. That is what he argued to you yesterday. That is not what the testimony said. Let me read to you what Doug Deedrick told you about this, page 35093. "Question: Now, you saw a lot of fibers in this case, correct? "Answer: A lot, yes. "Question: Was there something unusual about these particular blue black cotton fibers that drew your attention or made you pay particular attention to them? "Answer: Yes. Well, cotton fibers themselves, they are common. There is a lot of cotton fibers out there. What gives cotton fibers significance is that when you add color to them in a specific way, some you see more, maybe less likely than others. These particular--these are actually it is a real dark blue. It looks black, but in some areas the dye was not absorbed the same and this may be where the yarns are attached to the fabric. The same thing appeared also on the fibers that were recovered from Ron Goldman's shirt, the bluish area also present here. It was recovered from the Defendant's socks. The bluish area here is starting to show. Some of these areas can better be shown using instrumental techniques with color because the eyeball sees this as a shade of blue, this as a shade of blue and so forth." And then he goes into all of the methods that he used to examine these blue black cotton fibers to determine that they were--they did in fact share the same microscopic characteristics. And I was going to read it all to you, but it is just too long. There is a lot of tests that he used and it had to do with the color and it had to do with the dye and it had to do with the appearance. And if you need to have it read back, please do, but you also have a picture. And if you don't want to read it, you can just see it, People's 487.
THE COURT: Mr. Fairtlough, would you just show that briefly to counsel.
(Brief pause.)
THE COURT: All right. Thank you.
MS. CLARK: Did you see it, your Honor? And you can look at these fibers. Look from the Rockingham glove, Ron Goldman's shirt, the Defendant's socks. These are things you can see. Now, there was also some discussion about the Defendant having dandruff, if you recall. And it was told to you that the Defendant always had dandruff in the off season. That is not what the testimony showed. Here is what the testimony actually showed about that, page 37441. "Question: And sometimes in the summer when you saw him take care of his hair he would have dandruff and sometime he would not? "Answer: That's correct." That was his barber. Another interesting thing that she told us is that unless you brush the hair vigorously, the dandruff does not come off. So I asked her: "If you don't, if you just brush his hair, the dandruff doesn't come off? "Answer: Right, which means if you don't brush or comb the hair and it just falls off by itself, the dandruff doesn't come off, if you don't do anything to the hair, I guess it will just stay there." Now, the hairs in the cap did not have dandruff and the Defense wants you to believe it couldn't be his hair because he has dandruff. That is not what the testimony showed. That is not what the evidence showed. The evidence showed sometimes he does, sometimes he doesn't, but actually even if he did, it wouldn't come off in the knit cap because you had to brush vigorously to get it out so that it would show. So what you have in the knit cap are his hairs, the naturally shed hairs that are his because he wore the hat.
MR. COCHRAN: Object to the form of that.
THE COURT: Overruled.
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Okay. You have jury instructions. I spoke to you a little bit about them before. There was one I didn't talk to you about I want to mention now because I'm going to talk a little bit about Dr. Baden and what he testified to, and that instruction is 2.--2.80? Do you have it on the bench, your Honor, 2.80?
(Brief pause.)
MS. CLARK: Wait. I have it. Thank you. You have a few instructions that tell you about expert testimony and this can be really helpful to you because I think that--I think I'm not alone in getting a little bit intimidated by experts, they know, they have "Doctor" in front of their name and what do I know, but you shouldn't be. You shouldn't be. You are allowed to evaluate the opinion of a doctor, and if it doesn't make sense, you can say, "You don't make sense, I don't believe you." It doesn't matter if they have "Doctor" or "Ph.D." before or after their name. You get to evaluate it because if it is not logical, if it doesn't make sense, it doesn't matter what their title is, and that is basically what the instruction says. 2.80, you will have it back there, and it says the following: "You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable." Okay. So what that tells you is don't be intimidated by the title. You know what makes sense, and if you find it to be unreasonable, toss it. Okay? Dr. Baden told you some things that were--that made absolutely no sense. They defied the laws of gravity. What am I talking about? I'm not going to drag all the pictures out here right now, you will have them back there if you want to verify this. One thing that he said that I just couldn't believe I was hearing is that the jugular vein cut was the one that caused the blood on Ron Goldman's pants. Now, think about this. This is jumping blood, because there isn't a big--then it should be jumping down the shirt, right? Logic tells you that if he is bleeding from the neck, it is going to drip down his shirt and then get to his pants. You look at his shirt. It is not there. The front of the shirt is not blood-soaked in front over the place where the pants are all blood soaked, so it is very obvious that where the blood came from is the stab wound in the hip, and Dr. Baden's testimony on that makes absolutely no sense. Another thing that makes no sense, that actually disregards what gravity tells you must be true. But what I think what Dr. Lakshmanan told you as well, and he is medically qualified, and that is this: He also said--and this is how he gives you this big time frame, by the way, which makes no sense all by itself, and I will talk about that in a minute. He said that there was a period of between five to fifteen minutes from the time that the neck wound was inflicted to the time that the chest wound was inflicted, and he based that on the very small amount of blood found in the chest cavity on Ron Goldman's right side, okay? In other words, what he is basically telling you is that blood pressure had so dropped as a result of this jugular wound, he bled out so much that by the time he got stabbed here, (Indicating), it had to be about ten minutes later and that is why there is so little blood in the cavity. Okay. But Ron Goldman was lying on his right side and bleeding out, so you could actually see it in the photographs. You will have back there. There was a tree stump that I think has the number "106" on it. When you have the photographs, look at this, please, because it is blood-soaked, and what they did--before they got the actual reference vials of the victim's blood from the Coroner, was they went and they took blood samples from the place where the victims were lying so they would have some idea ahead of time what the victim's blood types were. So they took a swatch from the tree stump near Ron, because obviously that was his blood. They also took a swatch from the area of blood that Miss Brown was lying in, and that was her reference sample taken from the crime scene. That is how much he was bleeding out. Dr. Baden doesn't believe in gravity, doesn't believe that that is why he had so little blood in his cavity, doesn't believe that somebody lying on their right side is going to bleed out if he is lying there for a while, and says there is so little blood there, that means he was already near death and that means the jugular wound had been bleeding for quite a long time, and that is ridiculous. I will tell you why. You don't even have to be a doctor to figure this one out. Somebody commits murder, are they going to hang around? What was he doing for ten minutes? Between the time that he inflicted the jugular cut and the time that he inflicted the chest cavity, if you believe Dr. Baden, he has got ten minutes to kill. The door is standing open. There is no evidence of ransacking, there is no evidence of disturbance. What is he doing, playing solitaire out there? That is ridiculous. What are they asking you to buy? That is why I'm saying look at the jury instruction. You may disregard any such opinion if you find it to be unreasonable. Ladies and gentlemen, that is one of the most unreasonable things I think I have ever heard any doctor say. That is ridiculous.
THE COURT: Miss Clark, if would you slow down just a little.
MS. CLARK: I'm sorry, I'm trying to get it over with. I'm sorry. I'm sorry, Chris. While we are on expert testimony, EDTA, very, very briefly. Okay. You were--you were told during argument that a letter was sent to Agent Martz asking him to refute the allegation that the blood was planted. That is not what the letter says. The letter says.
THE COURT: Which exhibit is this, counsel?
MS. CLARK: I didn't bring the exhibit number, your Honor. I just have the letter.
THE COURT: All right. Supply that for us.
(Brief pause.)
MS. CLARK: I don't have the number, your Honor.
THE COURT: All right. Why don't you just--all right. Proceed.
MS. CLARK: The question posed was: "We would like you to test these items for the presence/absence of EDTA in order to refute the possibility that the stain on the sock could have come from the reference sample." Now, what is the point of that? When we heard that the Defendant was going to make this outrageous allegation, I thought, well, I won't close my mind to anything. Let's find out.
THE COURT: Excuse me, counsel. Be careful.
MS. CLARK: Okay. So we sent the reference samples and we sent the sock and we sent the rear gate samples to Agent Martz for testing. Let's find out. And what was the result? No EDTA. No big surprise, but no EDTA. Now, he came in and he testified and he showed you these charts, and I want to show them to you one at time because it made it so clear. And perhaps you may recall he tested his own blood unpreserved, he tested the evidence on the gate and he tested the blood on the sock, and guess what? His own unpreserved blood and the gate stain and the sock stain all came out looking the same. They came out looking like this. We taped all their charts together so what you see here is the results of all those things.
THE COURT: What exhibit?
MS. CLARK: That is 544-e, your Honor.
THE COURT: Thank you.
(Brief pause.)
MS. CLARK: Okay. That was Agent Martz' own blood and the evidence; that means the gate, the rear gate blood and the sock blood. That is what that looked like, so unpreserved blood, and the evidence had all those jagged peaks. Okay. Here is 544-f. This is what it looks like when we have EDTA preserved blood. All the same. That is--that stuff all comes from the test-tube with EDTA in it. Does that look anything like the jagged peaks that we just showed you? That is pretty easy. But Dr. Rieders thought he could--thought he could get you to blind your eyes and listen to his title and say, well, gee, I'm not qualified, maybe they do look alike. I mean, it is ridiculous, but he did that and he insults your intelligence with this. But what is even worse and what shows you really that this is a man whose opinion is for sale is that his initial report said I found two of the three ions on the gate and on the sock and he thought that was going to be good enough for him to say, well, could be consistent with and he could slide around with that. Unfortunately what happened, after he wrote that report, was Agent Martz then said, gosh, I wonder what it would be like if I tested my own blood without any EDTA in it? Took blood out of his arm and he went and he tested it with not EDTA, just regular ol' blood, and guess what? It looked just like the gate, it looked just like the sock.
When Dr. Rieders found that out, he said, I've got to do something because they have just proven me completely wrong for what he did. For the first time on the witness stand he said I found another ion on the sock and he tried to show you that one of those peaks matches something else. It was really reprehensible, and I know, I got a little bit excited with Dr. Rieders, but this is a man--this is a man--let's not forget where he comes from. Let's not forget what he did before. I asked him about questions about this other case, the case of poisoning you may recall, the case of oleander poisoning in which he was asked by the District Attorneys of Ventura County and this county to find out whether a man died of natural causes or had been poisoned to death. Now, that sounds pretty serious, doesn't it? That is a murder charge that can or cannot be brought based on what his test shows. And he did preliminary screening tests, he did not use state of the art, he didn't even know what state of the art was available at the time, and he came back with the answer, yes, poison is present. Poison is present. And had the D.A. and the Defense attorney not joined together to go out and find an expert who had much more sophisticated equipment who could do definitive testing, an innocent man would have gone to prison for murder because Dr. Rieders was so sloppy and so out of date and had an opinion for hire for whoever was bidding, that is what would have happened, but fortunately the D.A. said, no, we are going to go and check that again.
MR. COCHRAN: Your Honor, I object.
THE COURT: Counsel, that does go beyond the scope.
MR. COCHRAN: Goes beyond the evidence.
MS. CLARK: And that is why you have to view very, very carefully the experts, see if they make sense, see if you can rely on them, see if they are believable, see if they are logical, and consider the fact that they are for hire. Sure, that makes a difference. Dr. Baden, Dr. Baden who came and told that you gravity doesn't work, paid over $100,000 in this case. He is very charming, he is very affable, I enjoyed seeing him in court, but hearing him was something else. Over $100,000 he got paid in this case. There was also a reference made to you, Mr. Darden began to address it, about golf balls, you may recall, and then it was argued as well. It was argued that the Defendant had that little dark bag that he insisted on picking up and that was for carrying golf balls to the tournament in Chicago. Now, first of all, what kind of sense does that make? You take your own golf balls to a golf tournament? Don't you think they are going to give you some there? But it is worse than that, because that is not what the evidence shows. Allan Park was specifically asked about that. "Can you tell us, sir, whether you saw any golf balls in that lawn area that night? "Answer: No." Kato was asked the same question. "Did you ever see balls in relationship to a bag that was similar to the bag you saw on the driveway on June the 12th? "No, I don't think so. I don't remember seeing that. I think there were balls in the garage, kind of just balls that were there." And that was a question asked by Mr. Shapiro of Kato Kaelin. So not only doesn't it make any sense, but there is no evidence to support it at all. Now, there was something else said to you represented that Mr. Kaelin and pictures and a videotape also refute, and that is a side door.
You may recall that Defense counsel mentioned to you why would it be Mr. Simpson walking in through that front door when Allan Park was sitting out there watching him? He could have gone in from the side. Not true. And the evidence proves it is not true. First of all, Mr. Kaelin testified that the laundry room referred to by counsel was not really used, but we have better than that for you, ladies and gentlemen. We have a videotape. We have that inventory videotape that counsel brought in that shows that door, that shows on June 13th that there were things--little step ladder and stuff like that in front of the door, which gives you a clear indication that door waters not in use and that is the condition of that area on that--on the afternoon of June the 13th. Do we have the clip?
THE COURT: What exhibit is this? What exhibit is this, Mr. Fairtlough?
MR. WOODEN: 1068.
THE COURT: All right. Thank you, Mr. Wooden.
(At 11:46 A.M., Defense exhibit 1068, a videotape, was played.)
MS. CLARK: There we go. Laundry room. Whoops, back up. That was quick.
(The playing of the videotape continues.)
MS. CLARK: Okay. See the laundry room in there. See that step ladder? You saw it--see the step ladder? See the bag of laundry? It is stacked in front of the door.
MR. COCHRAN: Your Honor, I object. That is--
THE COURT: Overruled, counsel. It speaks for itself.
MR. COCHRAN: Thank you, your Honor.
THE COURT: All right. The counter is at 3:01 P.M. thank you, counsel.
MS. CLARK: Thank you. Now, do you put a step ladder, do you put a basket of laundry if front of a door that you use? Obviously not. So there was no other way in and that is why, that is why Allan Park saw the Defendant walking in the door that night. And I'm going to tell you something, ladies and gentlemen. That was the defining moment of this trial. That was the one. Because when you understand that the Defendant was out that night, when you understand that he lied to Allan Park about being asleep, when you understand that that Bronco was moved and that he was out in that Bronco that night and that 10:03 call to Paula Barbieri is because he was out there making that phone call, then you understand how the Defense falls apart, then you understand where he was when his whereabouts are unaccounted for. And Allan Park's testimony is unrefuted. Allan Park came in and told us the truth and he told it consistently, the Bronco was not there and neither was the Defendant, until 10:54. Excuse me. Thumps on the wall, 10:52. That is one more important point.
MR. COCHRAN: That misstates again, your Honor.
THE COURT: Overruled, counsel.
MS. CLARK: That is another important point and this is why phone records are a good thing and you will have the testimony. I'm not going to read to you any more. You are probably tired of hearing that. You have it in the record. I asked specifically Kato: "Did you look at a clock? Did you look at your watch when you heard that thumping noise on your wall?
"No, I didn't. "So this is an estimate? "Yes, it is an estimate." He is estimating because he is not looking at what time it is. He says: "I called Rachel around this time. About a half an hour later I heard the thumps." It is an estimate. We had to go with that until we realized that Allan Park had a phone record. He had a phone record that said when he made a call and said when the call ended. And it was at the end of that call to his boss or from his boss that he saw Kato Kaelin out in the side yard, and Kato Kaelin told you, and it is unrefuted and it is uncontested, that it was two to three minutes after the thumping that he was out on that side yard. That is what he told you. And that means that the thumping occurred at 10:52 and then Allan Park saw Kato in the side yard at 10:54, at the same time as he saw the Defendant walking in the door, 10:54. That means that two minutes after the thumping the Defendant is going into his house and that means the thumping was done by the Defendant. And they want to make fun of the fact that he ran into an air conditioner because it is his property and wouldn't he know better? Well I don't think that he hangs out on the south pathway a whole lot. That is not where Mr. Simpson would go. That is where a repairman would go, maybe a maid would go. He doesn't go down there, and anyway--
MR. COCHRAN: Again that is speculation, your Honor.
THE COURT: Overruled.
MS. CLARK: And that dark and that narrow little pathway in a hurry when you are pressed and you are frantic, you are not going to be looking to see everything that is coming. You are running, you are running, he is in a hurry and that is why that happens. And now, there was also some statement about there was nothing around that glove, but Dr. Lee, Dr. Lee said differently. Page 43200. "Question: Now, in addition to that, doctor, when you were at the Rockingham location did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of air conditioning unit near Kato Kaelin's house? "Answer: Yes, sir."
MR. COCHRAN: Your Honor, may we approach?
MR. SCHECK: Your Honor, your Honor--
MS. CLARK: It is in the record, your Honor.
THE COURT: Hold on. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We got a problem here. Never mind. Go ahead. By the way, counsel, one of you gets to make objections; not both of you. I have warned you about that three times now.
MR. COCHRAN: All right.
THE COURT: It is not trial by committee.
MR. COCHRAN: Forgive us. Sometimes it is something that we want to get to you right away and we are both speaking, so that is why that happened, your Honor.
(Brief pause.)
THE COURT: This appears to be, if you read the entire thing, quote, he said he found nothing out there.
MS. CLARK: No, that is not--
MR. SCHECK: Not only that, let's make it very clear, and I'm sure the court recalls this, and that is that I came in the next day and made a specific objection on the record because this was a situation where he was about to bring up presumptive testing. And then I said, "You have answered the question" and cut it off and I made a specific objection on the record because Dr. Lee would have come back and testified that what he did was a swipe on the air conditioner and he got a positive, but a positive that came not from what in his opinion was blood, but from the fact that you tests the surfaces, you are going to get positives, and I made that specific objection on the record.
THE COURT: Hold on, hold on.
MR. SCHECK: Ruling about closing argument--
MS. CLARK: You know--
THE COURT: Hold on.
MR. SCHECK: Mr. Goldberg knows--
THE COURT: Hold on. It does not appear--that argument does not appear to be supported by the record.
MS. CLARK: Your Honor, you know something? You are only looking at one page. I will get the other pages for you. It is exactly what the witness said. Have I misrepresented what the witness said?
THE COURT: Hold on. Hold on. It is five minutes to noon. Move on to something else. Skip this point and we will pull the record. This is from volume 213.
MS. CLARK: I read the record. That is all I did.
THE COURT: Counsel. "Question: Now, in addition to that, doctor, when you were at the Rockingham location did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning near Kato Kaelin's house? "Answer: Yes, sir. "Question: And was that something that you believed that--that you thought appeared to be blood? "Answer: I test some door knobs, some sink traps and air conditioner. "Question: I am just asking about the air conditioner." "I saw"--the answer is: "I saw in different places."
MS. CLARK: Including the air conditioner, your Honor.
MR. COCHRAN: No.
MS. CLARK: That is what he said. What are we talking about here? Those are his words.
MR. SCHECK: I came in and corrected her on the record.
MS. CLARK: They can deny reality. They are in denial about this. That is what he said.
THE COURT: Keep your voice down. Wait a minute. There is only one person, Mr. Cochran, who is arguing.
MR. COCHRAN: All right.
THE COURT: It is noontime. Let me pull the full record. Move on to something else.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel.
MS. CLARK: It was also represented that Dr. Lee and Dr. Baden both agreed that the amount of struggle would have been a very long one. Dr. Lee didn't say that. He said something a lot less certain than that, and I will read to you what he said. "Question: Can you tell us blow by blow what happened here? "Answer: No, I cannot. That is a good question. "Question: All right. Thank you. And doctor, would it be fair to say if we cannot tell blow by blow what happened here, you cannot tell blow by blow what happened, then it is difficult to give any kind of a scientific estimate of time? "Answer: That's correct." That is what Dr. Lee said. Now, with respect to Dr. Baden, it was represented to you that Dr. Baden said the perpetrator would have been covered in blood. That is not true. You can have all of Dr. Baden's testimony read back. I went and looked at it. It is not there. He didn't say that.
MR. COCHRAN: Your Honor, I object to the form.
MS. CLARK: He didn't say it. Not only that, but their own expert, Mr. MacDonell--
THE COURT: Overruled.
MS. CLARK: --had some interesting things to say about what kind of blood or how much blood you would ever expect to find, and as a matter of fact, we read the title into the record, "Absence of evidence is not evidence of absence.". This makes sense. A crime can happen in many different ways. Use your logic and use your common sense. If you are standing behind somebody cutting their throat, they are bleeding out and they are not bleeding on you, so you will get some on your hands, maybe you will get a little bit of the spatter, but you are not going to be covered in blood and you are certainly not going to be covered in the kind of blood in the Bronco because it is not on your back. When you think about this, think about it logically, but don't let the record mislead you. If you want it read back, they will do it for you. They will do it for you. Don't hesitate to ask, ladies and gentlemen. Most important is that you base your decision on what is there, what is really there, not on what some lawyers tells you is there or not on what you wish was there, but what is on really there. I know you will do that. Take a break?
THE COURT: Yes. All right. Ladies and gentlemen, we will take our noon recess at this time. Please remember all my admonitions to you. Do not discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess until 1:30.
(At 11:59 A.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; FRIDAY, SEPTEMBER 29, 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. The jury is not present. Mr. Scheck, you wanted to be heard on page 43200?
MR. SCHECK: Yes, your Honor. A few things to say about that. The first point to be made is that I think in Miss Clark's argument, she started to say that--with the statement there was nothing around the glove, but Dr. Lee--Dr. Lee stated differently. Now, she starts with a question: "Dr. Lee, when you were at the Rockingham location, did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning unit near Kato's house?
"Answer: Yes, sir." That's all that's in the record at this point. Now, as the court noted at the bench, I would say there's three reasons at least that this was improper comment and that we should have an instruction to the jury, which is my request, that there is no evidence in this case Dr. Lee found blood on the air conditioner. And it's for at least three reasons. No. 1, there's a clear ruling in this case by this court that we've all had to live by that presumptive tests are not admissible for showing that blood was present, and that is a clear ruling. There was a ruling that in the impeachment of Dennis Fung, that I had opened the door with respect to the Bronco, and the court made a limited finding that they could offer testimony about the extent of presumptive testing in the Bronco.
So they know that that rule is in effect, and we've all lived with it and been very careful with it since. So that's point no. 1. Point no. 2, as the court noted from the bench, when one goes on to read the rest of the testimony of Dr. Lee in this area, he--the answers that were elicited were not that he had found blood on the air conditioning when Mr. Goldberg went on and continued asking him the question, and, in fact, as I had noted on the record--and I'll get to the third point here--that he cut off Dr. Lee when Dr. Lee was about to give a further explanation when he indicated that he had found--he had done presumptive tests on the doorknobs, some sink traps and air conditioner. And then Mr. Goldberg said: "I'm just asking about the air conditioner. "Answer: I saw in different places. That's just about tests." And then Mr. Goldberg said: "That's all right, your Honor. I'll move on. I think he answered the question." Now, I came back the next day--
THE COURT: Is there a report by Dr. Lee that says he did any testing there?
MR. SCHECK: Yes. He did presumptive testing there. But I came back the next day, and it's at 43380 of the record, and what happened, your Honor, is that I indicated to the court at that point--have you read this?
THE COURT: No. I don't have 43380. Have Mr. Byrne give me the next volume, 214, please.
MR. SCHECK: Yes. I came back the next day, your Honor--I think it actually starts at 43379. I came back the next day and made an objection on the record. And what I pointed out was that when I listened to the--I had thought that when Mr. Goldberg at this time--this is what I indicated on the record--said, "That's enough, Dr. Lee," that what he was doing was trying to cut off the witness so there would not be testimony about presumptive testing, which would have violated the court's rule. And I thought that that's what he was doing. When I listened again the next night to the tape--because frankly, all these commentators were saying, oh, there's evidence of blood on the air conditioner.
THE COURT: You didn't really listen to those people, did you?
MR. SCHECK: No. I listened to the tape of testimony. And when I listened to the tape of the testimony and the implication, I became concerned--
THE COURT: Excuse me, counsel. What page?
MR. SCHECK: It's - I think it starts at 43379 and goes on to 43380.
THE COURT: All right. Proceed.
MR. SCHECK: See where I'm beginning? It's just before we took up the issue of the Fuhrman tapes. Should I read it or is the court reading?
THE COURT: I'm reading it right now.
(Brief pause.)
THE COURT: All right. I've reviewed the 43379 through 43381.
MR. SCHECK: And so I think the record indicates that I immediately approached the court and I said that I was fearful that even though it wasn't explicitly stated on the record, that the Prosecution might argue that there was blood found on the air conditioning from the way the questions and answers were brought out and the way Mr. Goldberg cut him off, and I had misinterpreted Mr. Goldberg. He was cutting it off for purposes of putting this inference, which was improper in the first place because of the ruling on presumptive tests in the record, instead of trying to cut Dr. Lee off before he got into an area that was improper. And, in fact, as I indicated in the reco