Re-redirect examination of Herbert Leon MacDonell

📄 Re-redirect examination of Herbert Leon MacDonell — Monday, December 16, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\16\RE-REDIRECT-EXAMINATION-OF-HER.DOC

TRIAL

▲ Day 32 of 57

◀ Cross-examination of Herbert Leon MacDonell (part 2) Redirect examination of Herbert Leon MacDonell (part 3) ▶

Witness: Prof. Herbert MacDonell
Examiner: Robert Baker
Called by: Defense • Date: Monday, December 16, 1996 • Utterances: 84

Medvene recross-examined MacDonell on the photomicrograph evidence of 'little red balls' on the sock, pressing him on whether Dr. Lee's notes corroborate MacDonell's claim of seeing 6-7 round red balls. The examination ended with brief questioning on MacDonell's compensation arrangement, with MacDonell acknowledging a $5,000 retainer but no formal billing agreement.

# 1 Q:

How many pictures of little red balls did you take, Mr. MacDonell?

# 2 A:

I do not remember. Dr. Lee took the film. It was his microscope and --

# 3 Q:

More than five, more than ten? You've shown us one. Was it more than five or more than ten or less than that?

# 4 A:

I would say perhaps a dozen. I don't know -- he might have taken -- used the film up, but he might not have taken it all of the same thing.

# 5 Q:

I read from the criminal trial transcript, 389, line 4 through 13. (Reading:)

# 6 Q:

Mr. MacDonell --

# 7 MR. BAKER:

Wait a minute, wait a minute.

MR. P. BAKER: 39?

# 8 MR. MEDVENE:

389.

# 9 MR. BLASIER:

39?

# 10 MR. MEDVENE:

389.

# 11 Q:

(BY MR. MEDVENE) (Reading:)

Mr. MacDonell, please listen --

# 12 MR. BAKER:

Wait a minute.

# 13 (Pause.)

# 14 MR. MEDVENE:

Okay?

# 15 MR. BAKER:

No. Our computer's gone haywire over here.

# 16 MR. BAKER:

Let me look over your shoulder.

# 17 MR. MEDVENE:

Sure.

# 18 Q:

(BY MR. MEDVENE) (Reading:)

Mr. MacDonell --

# 19 MR. BAKER:

Let me read it.

# 20 (Pause.)

# 21 MR. BAKER:

Okay. Go ahead.

# 22 Q:

(BY MR. MEDVENE) (Reading:)

Mr. MacDonell, please listen to the question I ask you.

When you took only -- there was only one photograph taken of those little balls that you saw on the inner surface of the sock?

# 23 A:

I answered that when I said Dr. Lee took it, I did not take any.

# 24 Q:

The question is, only one photograph, correct?

# 25 A:

To the best of my knowledge.

# 26 A:

Is there a question?

# 27 Q:

(BY MR. MEDVENE) Dr. MacDonell -- or Mr. MacDonell, I want to move to a somewhat different area.

Is it true that you cannot tell this jury that the little red balls on the inner surface that you claim you saw are absolutely associated with the outer stain that you testified about, is that correct?

# 28 A:

I can't absolutely say that they are.

KEY QUOTE

# 29 Q:

And getting back to that area for just a moment, the space or the spot on side 3, where you claimed something went through to form this ball, is on top of the cut-out where you have no personal knowledge whether there was even any blood there to drip through and surrounded by the periphery where you've told the prior jury there was no blood that went from side 1 to 2; is that correct, sir?

# 30 MR. BAKER:

Your Honor, that's at least three questions, it's compound and argumentative.

# 31 THE COURT:

I think you asked that question the last time around.

Sustained.

# 32 Q:

(BY MR. MEDVENE) You made some reference to Dr. Lee.

Is it correct sir, in his notes he doesn't describe the shape of any alleged round red balls; that's true, is it not?

# 33 A:

I don't know what his descriptions are or his testimony was.

# 34 Q:

Is it true, sir, that he never uses the words, I saw 6 or 7 little red balls, he never says that, does he, in his notes; isn't that correct?

# 35 MR. BAKER:

There's no foundation for that question and he knows it.

# 36 THE COURT:

Sustained.

(BY MR. MEDVENE) To the best of your knowledge, is it true, sir, that Dr. Lee did not record in his notes seeing any 6 or 7 little round balls?

# 37 MR. BAKER:

Same question, Your Honor.

# 38 THE COURT:

Sustained.

(BY MR. MEDVENE) You're saying, Mr. MacDonell, that you took no notes on April 2 describing this phenomenon, and yet you have never even seen Dr. Lee's notes?

# 39 MR. BAKER:

Objection, argumentative, asked and answered.

# 40 THE COURT:

Overruled.

# 41 Q:

(BY MR. MEDVENE) Is that your testimony?

# 42 A:

I've seen Dr. Lee's notes.

# 43 Q:

Excuse me. You've seen --

# 44 A:

I've seen Dr. Lee's notes.

And I do believe I may have made a notation about the -- I think it just says photomicrographs were taken, but in that notation on my diagram I made at that time, I don't think I added to it little red ball or something. I have it in here.

# 45 Q:

Is it true, sir, that Dr. Lee makes no reference to seeing 6 or 7 little red balls?

# 46 A:

He told me that several times.

KEY QUOTE

# 47 Q:

Excuse me?

# 48 A:

Documented, I don't know. But we discussed it at the time.

# 49 Q:

Sir, you knew. My question --

# 50 A:

No, I don't know what you said.

# 51 Q:

My question is, you knew it was not in Dr. Lee's notes 'cause you've now told us you've seen those notes?

# 52 A:

You didn't say notes in your last question. You asked if we had discussed it.

KEY QUOTE

# 53 Q:

No, I don't believe I did, but the record will be the best evidence. I don't want to quarrel with you.

# 54 A:

All right.

# 55 Q:

Is it true that when you looked at Dr. Lee's notes, you did not see any reference to seeing 6 or 7 little red balls; yes or no, sir?

# 56 A:

I don't recall. I am not sure whether he put it in or not. He may not have and he may have. I do not remember.

# 57 Q:

Sir, counsel asked you about, you know, your examination of these little red balls.

Let me ask you, isn't it true that on the side of the cut-out, where you claim you found this little red ball, you tested another spot where there was a Nicole Brown blood stain is; is that true?

# 58 MR. BAKER:

That's beyond the scope.

# 59 THE COURT:

Sustained.

(BY MR. MEDVENE) Isn't it true, sir, that you probed other places on the sock where Nicole Brown's blood was identified, and did not find any of the blood soak through to side 2 or 3 of the sock?

# 60 MR. BAKER:

Outside the scope.

# 61 THE COURT:

Sustained.

# 62 Q:

(BY MR. MEDVENE) You wouldn't categorize yourself as an expert on leather gloves, would you?

# 63 A:

No, just as a wearer thereof.

# 64 Q:

Just as a wearer.

And you're not testifying here, are you, sir, that the gloves worn by the killer in this case did not shrink to a certain extent prior to the time of the murders; you're not saying that, are you?

# 65 MR. BAKER:

That's outside the scope, Your Honor.

# 66 Q:

(BY MR. MEDVENE) Yes or no, sir?

# 67 THE COURT:

Sustained.

# 68 MR. MEDVENE:

I ask to reopen for one area.

# 69 THE COURT:

No. Finish this.

# 70 Q:

(BY MR. MEDVENE) Could you tell us how much you've been -- how much you've billed?

# 71 MR. BAKER:

I object to that. That's outside the scope as well.

# 72 THE COURT:

That you can answer. Go ahead and answer that.

# 73 A:

I haven't billed anything.

# 74 Q:

(BY MR. MEDVENE) How much have you been paid?

# 75 A:

I received a retainer of $5,000, but that was not something I billed for.

# 76 Q:

And you have an arrangement for payment?

# 77 A:

Well, I got paid, I have my airline tickets and that sort of thing.

# 78 Q:

And you have your arrangement for payment in connection with the work you've done, in connection with your testimony here; yes or no, sir? Yes or no, do you have an arrangement for payment?

# 79 A:

No arrangement, no.

# 80 Q:

But you --

# 81 A:

Going to bill them for the time that's spent, and the three days time away from my laboratory but --

KEY QUOTE

# 82 Q:

I understand.

# 83 A:

-- we haven't sat down and said this is what we're going to charge, this is what you're going to pay, no.

# 84 MR. MEDVENE:

Thank you.

REDIRECT EXAMINATION BY MR. BAKER:

Temperature

tense

Key Quotes (4)

Herbert MacDonell

I can't absolutely say that they are.

MacDonell concedes he cannot definitively link the little red balls on the inner sock surface to the outer blood stain, undermining his core testimony.

Herbert MacDonell

He told me that several times.

MacDonell claims Lee verbally confirmed seeing the balls but cannot point to documentation, weakening the corroboration argument.

Herbert MacDonell

No arrangement, no. Going to bill them for the time that's spent, and the three days time away from my laboratory but -- we haven't sat down and said this is what we're going to charge, this is what you're going to pay, no.

Reveals a somewhat informal compensation arrangement, potentially suggesting bias without a hard contract to point to.

Herbert MacDonell

You didn't say notes in your last question. You asked if we had discussed it.

MacDonell sparring with Medvene over precise wording, showing defensiveness and a pattern of evasion.

Evidence (3)

Informal

Criminal trial transcript, page 389, lines 4-13, re: photograph of little red balls on sock interior

read into record for impeachment

Informal

Dr. Henry Lee's notes regarding examination of the sock

discussed; MacDonell claims to have seen them but cannot confirm Lee documented the red balls

Informal

MacDonell's diagram/notation from April 2 sock examination

referenced; MacDonell admits it likely only notes 'photomicrographs were taken' without describing the balls

Notable Exchanges (3)

Edward Medvene•Robert Baker

Baker's computer 'goes haywire' during Medvene's attempt to read from the criminal trial transcript, causing a pause while Baker reads over Medvene's shoulder before allowing the examination to continue.

procedural/mildly comic

Edward Medvene•Herbert MacDonell

Medvene repeatedly tries to pin down whether Dr. Lee's notes contain any reference to seeing 6-7 little red balls; MacDonell admits he does not recall but claims Lee told him verbally, creating a credibility gap.

strategic/evasive

Edward Medvene•Herbert MacDonell

MacDonell catches Medvene on a question's precise wording ('you didn't say notes, you asked if we had discussed it'), leading Medvene to back off and say 'the record will be the best evidence.'

combative

Light Moments (1)

Herbert MacDonell

When asked if he considers himself an expert on leather gloves, MacDonell replies 'No, just as a wearer thereof.'

Credibility Attacks (3)

⚔ Herbert MacDonell

prior inconsistent statement / impeachment with criminal trial transcript

Medvene reads from the criminal trial record (p. 389) to challenge MacDonell's account of how many photographs were taken of the red balls and who took them.

⚔ Herbert MacDonell

corroboration failure

Medvene establishes that Dr. Lee's notes do not record seeing 6-7 little red balls, and that MacDonell's own April 2 notes likely do not describe them either, leaving MacDonell's testimony uncorroborated.

⚔ Herbert MacDonell

bias / financial interest

Medvene elicits that MacDonell received a $5,000 retainer and expects further payment, though no formal billing arrangement has been set.

Witness Demeanor

(Pause.) — during computer malfunction delay

Witness becomes combative and precise about exact wording of questions, correcting Medvene multiple times

Objections

10 objections (7 sustained, 1 overruled)

Proceeding 8663 • 84 utterances • Defense witness

Civil Trial

Department 103