Cross-examination of Herbert Leon MacDonell (part 1)

📄 Cross-examination of Herbert Leon MacDonell (part 1) — Monday, December 16, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\16\CROSS-EXAMINATION-OF-HERBERT-L.DOC

TRIAL

▲ Day 32 of 57

◀ Redirect examination of Herbert Leon MacDonell Cross-examination of Herbert Leon MacDonell (part 2) ▶

Witness: Prof. Herbert MacDonell
Examiner: Edward Medvene
Called by: Defense • Date: Monday, December 16, 1996 • Utterances: 77

Robert Baker conducts redirect of forensic expert Herbert MacDonell, covering two main areas: whether leather gloves shrink when wet (in response to cross-examination about the Rockingham glove), and MacDonell's April 2, 1995 examination of the Bundy socks with Dr. Henry Lee at Technical Associates in Altadena. Baker attempts to use MacDonell to convey Lee's observations about the 'red balls' on the socks, but the court blocks most of those attempts as hearsay. MacDonell affirms he and Lee together observed spherical blood compression on the socks, not dried flakes.

# 1 Q:

Did you grow up in New York?

# 2 A:

Yes.

# 3 Q:

Have you worn gloves all your life?

# 4 A:

Only in the wintertime.

# 5 Q:

One for your side.

Did any of those gloves shrink?

# 6 A:

Only when I grew older and my hands got bigger they seem to shrink. Otherwise, when I come in soaking wet and put them on the furnace pipe in the basement, let the hot air dry them out, I find the next morning they were tough and stiff, but if I broke them up, they fit.

KEY QUOTE

# 7 Q:

Did you see the glove experiment in the courtroom when Mr. Simpson put on the gloves, or the videotape of him putting on the gloves?

# 8 MR. MEDVENE:

Objection, calls for hearsay, Your Honor.

# 9 THE COURT:

Overruled.

# 10 A:

I did at one time. I don't think I saw it at the time it was live.

# 11 Q:

(BY MR. BAKER) And did those gloves fit Mr. Simpson?

# 12 MR. MEDVENE:

Objection, outside the scope.

# 13 THE COURT:

Sustained.

# 14 MR. BAKER:

On which basis?

# 15 THE COURT:

He's got no ability to testify whether they fit or not, I find, and I so rule.

# 16 Q:

(BY MR. BAKER) Now, in terms of your April 2, 1995 when you went to Technical Associates helping in Altadena, California, do you recall that?

# 17 A:

Yes.

# 18 Q:

And that was specifically to examine evidence, was it not?

# 19 A:

That's correct.

# 20 Q:

And you went there with Henry Lee, did you not?

# 21 A:

Yes.

# 22 Q:

And Henry Lee is a criminalist of some reputation, is he not, sir?

# 23 A:

Yes.

# 24 Q:

And he and you examined the socks, did you not?

# 25 A:

That is correct.

# 26 Q:

And Dr. Lee took notes during the examination of the socks, did he not?

# 27 A:

Yes.

# 28 MR. MEDVENE:

Objection.

# 29 A:

He was the scribe.

# 30 THE COURT:

Overruled.

# 31 Q:

(BY MR. BAKER) And during the examination, both you and Henry Lee looked through the microscope and saw the red balls that you described in this courtroom, did you not?

# 32 MR. MEDVENE:

Objection, calls for a conclusion as to what Dr. Lee saw or didn't see.

# 33 THE COURT:

Sustained as to Dr. Lee.

# 34 MR. BAKER:

Your Honor, he was asked these questions -- well, strike that.

# 35 Q:

(BY MR. BAKER) Did you have conversations with Dr. Lee about the red balls?

# 36 A:

Yes.

# 37 MR. MEDVENE:

Objection, calls for hearsay.

# 38 THE COURT:

Sustained.

# 39 MR. BAKER:

Your Honor, that was all opened up by his examination and his talking about Dr. Lee being there.

# 40 THE COURT:

Dr. Lee's opinion can come from Dr. Lee; not from this witness.

KEY QUOTE

# 41 Q:

(BY MR. BAKER) Did Dr. Lee take photographs along with you, to document what you saw on April 2, 1995?

# 42 A:

Yes, we could see it the same instant.

# 43 MR. MEDVENE:

Objection.

# 44 Q:

(BY MR. BAKER) And how could you see it at the same instant?

# 45 A:

It had a ground glass such as this (indicating to television screen) over the microscope which allows you to see what you're about to photograph. And so regardless of who clicks the shutter, that's what we're going to get. And that's the way we took the pictures. I moved it for some; he moved it for others.

# 46 Q:

So what we're talking about, is when you're taking a photograph or Dr. Lee is taking a photograph --

# 47 MR. MEDVENE:

I apologize, Mr. Baker. These questions are leading the witness.

# 48 THE COURT:

I'll allow it.

# 49 MR. MEDVENE:

Yes, sir.

# 50 Q:

(BY MR. BAKER) Do you want to, whether or not you --

MR. P. BAKER: 1241 on the screen.

# 51 (Exhibit 1241 displayed on Elmo.)

# 52 Q:

(BY MR. BAKER) You were both in the same room, both viewing the same thing; is that correct, sir?

# 53 A:

Yes, we used two microscopes. This was the one we took pictures with.

# 54 Q:

When you say you didn't take a picture, does that mean you didn't push the button on the microscope that allows you to take the picture, that Dr. Lee did that?

# 55 A:

It was a camera -- release on the camera to the microscope. I clicked some; he clicked others.

I think he took this one. That's my best recollection (indicating to 1241).

# 56 Q:

What you were attempting to do on April 2 was to document what you were able to visualize, is that not correct?

# 57 MR. MEDVENE:

Objection, leading and suggestive.

# 58 THE COURT:

Overruled.

# 59 A:

That's what we did, yes.

# 60 Q:

(BY MR. BAKER) Now, there isn't any question in your mind that -- well, strike that.

Blood, after it dries, can flake, can it not?

# 61 A:

Yes.

# 62 Q:

And if you have blood on a material such as a synthetic sock, that can flake off, can it not?

# 63 A:

Yes.

# 64 Q:

And residue of blood -- flakes from blood, would be anticipated to be seen on the socks in various areas from just residue, true?

# 65 A:

Well, if you knew it had been manipulated and the blood had broken up, you would see flakes -- you could see flakes. They would probably be formed -- they would be much, much larger than this.

# 66 Q:

And flakes are not spherical in appearance, are they?

# 67 A:

No, they're jagged, they break up just like peanut brittle.

KEY QUOTE

# 68 Q:

And they're thin and jagged, are they not?

# 69 A:

They may not be thin. If the stain and cloth material is thick, they will be larger.

# 70 Q:

Okay.

And based upon your 40-some years experience, did you have any problems determining whether this was a compression of blood on side 3 as contrasted to a flake?

# 71 A:

No, I didn't. Looking at this, I didn't think of the size, I saw blood, which is wet and encircled a fiber and also go up the fiber to a certain degree and it's conclusion that it is wrapped around and it certainly not lying there loose so the fluids do that. This is a fluid dynamic that just happens, that fluids will ball up and encircle something like that. That is exactly what it appears like.

# 72 Q:

Now, while you were in the laboratory, there on April 2, 1995 and examining the socks, did you observe Dr. Lee swatch the area for a presumptive test for blood?

# 73 A:

When we were through taking pictures, yes. That was the only way we could determine if these did give a positive reaction for blood. Not limiting it to blood, but the negative reaction means it's not blood.

# 74 Q:

And was a positive reaction observed by you after Dr. Lee swatched the area?

# 75 A:

Yes.

# 76 Q:

And there was no question in your mind based upon the location --

# 77 MR. BAKER:

Put up the cut-out for the sock.

MR. P. BAKER: This is 1239.

Temperature

tense

Key Quotes (4)

MacDonell

Only when I grew older and my hands got bigger they seem to shrink. Otherwise, when I come in soaking wet and put them on the furnace pipe in the basement, let the hot air dry them out, I find the next morning they were tough and stiff, but if I broke them up, they fit.

Supports defense argument that the Rockingham glove could have shrunk — wet leather dried under heat becomes stiff but can still fit when 'broken in.'

MacDonell

No, they're jagged, they break up just like peanut brittle.

Vivid analogy distinguishing dried blood flakes (jagged, irregular) from the spherical 'red balls' MacDonell observed on the socks, bolstering his planted-blood argument.

MacDonell

I saw blood, which is wet and encircled a fiber and also go up the fiber to a certain degree and it's conclusion that it is wrapped around and it certainly not lying there loose so the fluids do that. This is a fluid dynamic that just happens, that fluids will ball up and encircle something like that.

Core of MacDonell's expert opinion: the morphology of the blood on the socks is consistent with wet blood applied directly to the fabric, not transfer during a crime.

Hiroshi Fujisaki

Dr. Lee's opinion can come from Dr. Lee; not from this witness.

Clean evidentiary ruling cutting off Baker's repeated attempts to bootstrap Lee's observations through MacDonell.

Evidence (3)

Exhibit 1241

Microscope photograph taken during the April 2, 1995 sock examination at Technical Associates; disputed between MacDonell and Lee as to who clicked the shutter

displayed on Elmo

Exhibit 1239

Cut-out diagram or photograph of the sock

called up at end of examination (transcript cuts off)

Informal

Videotape of OJ Simpson trying on the gloves in the criminal trial courtroom

discussed — MacDonell confirms he saw it, though not live

Notable Exchanges (3)

Robert Baker•Edward Medvene•Hiroshi Fujisaki

Baker repeatedly tries to get MacDonell to relay Dr. Lee's conclusions about the red balls on the socks. Medvene objects on hearsay and conclusion grounds; Fujisaki sustains and delivers the blunt ruling that Lee's opinion must come from Lee himself.

strategic/frustrated

Robert Baker•Hiroshi Fujisaki

Baker pushes back on the 'outside scope' ruling about the glove fit, asking 'On which basis?' Fujisaki explains MacDonell has no ability to testify whether the gloves fit Simpson.

procedural/mildly contentious

Edward Medvene•Hiroshi Fujisaki

Medvene politely interrupts to note Baker's questions are leading; Fujisaki overrules him with 'I'll allow it,' and Medvene simply says 'Yes, sir.'

deferential

Light Moments (1)

Robert Baker

Baker sets up MacDonell's gloves-shrinking answer with 'One for your side' after confirming MacDonell grew up in New York — a moment of courtroom levity before the substantive answer.

Credibility Attacks (1)

⚔ Herbert MacDonell

scope limitation / exclusion of corroboration

Medvene successfully blocked MacDonell from vouching for Dr. Lee's concurrent observations, preventing the defense from using MacDonell to double the evidentiary weight of the 'red balls' finding without calling Lee directly.

Witness Demeanor

(indicating to television screen) — MacDonell gestures to the monitor while explaining the microscope's ground glass viewing system

(indicating to 1241) — MacDonell points to exhibit while recalling that Dr. Lee likely clicked the shutter on that particular photo

Objections

8 objections (3 sustained, 4 overruled)

Proceeding 8654 • 77 utterances • Defense witness

Civil Trial

Department 103