We're going to address some motions made by both sides. The first motion the Court will address is defendant's motion to exclude expert witness Terry Lee on the ground that plaintiff has not made him readily available for deposition.
Thomas Lambert. Thank you. Yes, Your Honor. In regard to Terry Lee, the situation is as follows: On September 3, the Court granted our motion to add Terry Lee as an expert witness. On September 5, I wrote to Mr. Blasier, saying you've been trying to reach him by telephone to schedule Terry Lee's deposition, and suggesting September 9 as a deposition date. Later that day, Mr. Blasier called me and said he would like to take Mr. Lee's deposition the very next day, Friday, September the 6th. I explained that because Mr. Petrocelli had gone out of town to assist in the Henry Lee depositions -- you will remember at that time, Mr. Medvene was a little incapacitated. So Mr. Petrocelli had gone to assist in that deposition, and I was responsible for filing a number of papers that were due Friday morning, in limine briefs and joint trial statements, among others. So I suggested to Mr. Blasier we do the deposition the following week. He said that he was going to go home to Sacramento that week and didn't want to do the deposition the following week, I then suggested that we do it on Saturday. He told me that he was leaving for Sacramento on Friday, so he really couldn't do it any of those days. I then suggested, well, let's file the papers Friday morning; we'll do the deposition Friday afternoon. He told me he had a one o'clock flight and didn't want to change his flight. So we then agreed that if we weren't able to schedule the deposition, then we'd have to do it sometime later, during trial. During jury selection, Mr. Blasier came to me and said that he would like to now schedule Terry Lee's deposition. I said fine, but I know he's in Japan on an extended trip right now, because he told me when he left, he was going to be gone for a while; I'll get you a date. I called him on Monday, and his office told me he was still out of the office. I called him this week; he is now back, and I have a proposed date for him.
Mr. Blasier, I'm perfectly willing to have you depose him. Somebody's inability to depose him was not entirely the plaintiff's fault or the witness's fault. It appears to have been some of your fault. So if you want to depose him, you can. If you don't want to depose him, don't.
We do. We ask that he not refer to him in opening. I don't know whether they intend to or not.
Well, whether you depose him or not is going to be up to you. He's going to be a witness in this case. You had the opportunity to depose him. You're going to have to bend your schedule a little bit to do that.
Well, you have to. Let me give you the opportunity. He's going to testify; you're going to have the opportunity to depose him. If you don't depose him, that would be your election. Pick a date.
Your Honor, can we keep them from referring to him in opening, because we've been trying to get expert depositions since July of this year.
Well, you can refer to him because, Mr. Blasier, you could have deposed him, I guess, in your schedule, and you didn't. Defendant's motion to preclude reference on swatch drawing experiments by Matheson, defendant contends that plaintiff designated Matheson as an expert witness regarding tests performed by LAPD to determine blood type and related matters, and that plaintiffs' expert, Fox, testified that in deposition that he discussed with Matheson, and received notes from him offered by someone having to do with some drawing tests he did on bindle 47. Is Matheson going to be testifying with regard to some drawing tests?
Okay. Motion to preclude reference to swatch experiment drawing expert Matheson's -- testimony by Matheson is precluded. Reference to any tests performed by him may or may not be admissible, depending on what the foundation is.
Your Honor, may we reserve the right, since Mr. Fox is going to testify about that, of withdrawing this motion so that we can cross-examine Mr. Matheson?
We want to preclude Mr. Fox from testifying, as well, as a way of getting in the back door by having Mr. Fox testify to something that some other expert did. We are objecting to that, as well. But if he's going to be allowed to testify about it, we --
Okay. As I understand the law on expert testimony, if Fox testifies to some conclusions based upon data obtained by somebody else, that's not impermissible. So if you want to cross-examine Matheson about the data itself, you certainly may withdraw the motion.
Defendant's motion to strike plaintiffs' supplemental witness list. Defendant moves to strike Goldman's supplemental witness list because those witnesses were known to him before filing a joint amended statement, which is, I believe, September 10, 1996, and they were omitted from that joint amended statement. I'll hear from the defendant.
Your Honor, this is not at all the same situation we faced when we were moving to strike witnesses from defendant's witness list. The basis of that was failure to provide those names in discovery, Your Honor, when they were requested. And the Court ruled that they had not provided them in discovery, even though they knew about them. So they should be stricken from the list on that basis. All of these witnesses are people that have been known to the defendant for some period of time. The witness list, of course, will not change until long after discovery closes, so that there's no prejudice, because they couldn't have been deposed anyway. The witness list, the parties of Goldman exchanging and supplementing exhibit lists constantly. As late as yesterday, the defense filed an additional exhibit list. So there's absolutely no prejudice of the six people, Your Honor. Mr. Miller, Vern Miller, slight misstatement in the defendant's papers. He is a photographer, not a videographer. His sole purpose will be to authenticate one or two photographs; that's all he'll be doing. It's really not an issue of the authenticity of it; that's all he'll be doing. Mr. Peters they have known about for exactly the same length of time that we have known about him. He was revealed in the deposition of Harry Scull in this action on July 1, 1996. They had the opportunity to depose him, investigate him, talk to him, whatever they wanted to do. Mr. Wilson is a photographer for the Los Angeles Police Department. Again, he took pictures on June 13, 1994. The defense has known about him for over two years. Mr. Lovold is an LAPD officer whose sole participation in the case was to open up Mr. Simpson's Bronco at the print shed on June 14, 1996, very short witness that they've known about for two years. The fifth and sixth is the Terrance Watson. Again, like Mr. Peters, they learned about exactly when we did, at a deposition in March of this year. So they've had all the opportunity in the world to talk to him or even depose him if they wanted to. And finally detective -- Commander Gartland is a -- Captain Gartland is an officer with the LAPD, and he was involved in the original investigation. And they, again, have known about him for two years. No prejudice whatsoever to calling these people, because they've known about all of them, some before we did, and certainly none later than we did.
Phil Baker for the defense. That's exactly the point. They knew about all these witnesses long before the September 10 filing: Peters on July 1, 1996 deposition; Terrance Watson on March 19, 1996 deposition, the Commander Gartland on June 11, 1996; these photographers and print chip people were known in November, December in 1995. The purpose of the joint amended statement -- the purpose of Local Rule 7.9 is to give the opposing party a chance to prepare for these witnesses. And what we did is, when we were going to exchange our witness list, we conversed with the other side and wound up exchanging simultaneously, so neither side would be sand-bagged. And the purpose is because we're going to prepare folders and prepare attorneys to be ready to analyze -- examine these witnesses when they come on the stand. They knew about these people as early as a year ago. And now they're giving us new witnesses on October 4 and October 16, well after jury selection has commenced. We have been prejudiced. And the point is, they knew about them and they should have put them on their joint amended statement.
The basis on which the Court struck the defendant's amended witness list was the defendant's failure to comply with discovery order; to wit, failure to disclose all witnesses and interrogatories that defendant was ordered to respond to without objection. And that was a ruling that was made by this Court on September 4, 1996. The defendant's motion, in this instance, relates to no such discovery sanctions. It would appear to this Court that the defendant, in view of all these witnesses, knew of all of these witnesses well in advance of time, and was not the subject of a discovery sanction. The motion to preclude is denied. The motion to strike is denied. Plaintiff Goldman's motion for order precluding defense from referring in opening statement to Fuhrman's recent plea of nolo contendre to the charge of perjury and conviction thereon, and Fuhrman's testimony in the criminal trial, that he's expected to testify. May I hear if moving -- I'm sorry. I'll hear from the defendants.
Where I come, from this is called a sandbag, Your Honor. We went through four weeks of jury selection in which Mark Fuhrman's name came up early and often. It was referred to by both the defense and the plaintiffs. Mr. Petrocelli indicated on more than one occasion that the jury may very well hear from Mr. Fuhrman, either in person or from his testimony being read in. Obviously, the plaintiffs knew that this was going to be an issue. They knew by virtue of the fact that Mr. Fuhrman had pled the Fifth on two different occasions, and by virtue of the fact he was domiciled in Idaho; that the only way, most likely, that we'd be able to get his testimony in, would be through reading his prior -- his former testimony at the criminal trial. And yet, they sat for months, almost -- exactly 60 days after motions in limine were required to be filed. And that led us to take positions in front of the jury -- in front of every single juror, that will sit in this case. They took positions themselves. And now, as an afterthought, Mr. Petrocelli, in open court the other day, says, "Well, we don't think it's admissible." The time for filing motions in limine was 60 days ago. It was an extremely important reason that that be done. This is, as Your Honor has noted, a principal witness in this case. And we think that we've been absolutely had on this; and for that reason alone, the motion should be denied. As far as the merits of the plaintiffs' position, number one, the use of the term "cross-examination" in the statute, I think, is incidental to -- the purpose is collateral, if you will, to the purpose of the statute. The statute describes a hearsay exception that relies on the fact that at the former hearing, that the declarant was cross-examined and directly examined, that he was examined. So that now, when his testimony is read in, the triers of facts will be able to determine -- will have the ability to determine whether or not, in fact, his testimony is reliable. I've cited a situation in the evidentiary code with regard to an adverse witness, where the term "cross-examination" is used to simply refer to the examination of a witness by the party who goes second. And, in fact, I've also cited a case where the situation was, a plaintiff in a insurance bad-faith case was utilizing testimony from a prior worker's compensation hearing, where the judge was the person who had put the questions to the plaintiff, not an adverse party. It's just an examination. It had some -- I assume it had some elements of cross-examination. But the point is that there was an opportunity -- there was a similar interest in and motive to examine the witness. In this case, Detective Fuhrman was on the stand for five days. He was subject to direct and redirect examination on the very same issues that are in this case now, by the prosecutor, Marcia Clark. She spent hours and hundreds of questions asking him about all the facts and circumstances surrounding the manner in which he found the glove, the manner in which he discovered the blood on the outside of the Bronco, the manner in which he questioned Kato Kaelin, the circumstances in which he entered the Rockingham property. These are the very same issues that exist in this case. I can't imagine that the plaintiffs would be in any different position. I can't imagine that they could possibly conceive of any questions that weren't already put to this witness. Basically what's going on here, the plaintiffs want to have it both ways. They want to be able to put on summary witnesses here to talk about the chain of custody, to talk about the manner in which the evidence was collected. By virtue of the public employee record exception, they want this Court and the jury to assume, or to reach the presumption that the evidence was collected in the ordinary course of the policemen's duties; that the police, including Fuhrman, can be relied upon; that the source of these documents with regard to chain of custody is trustworthy. At the same time, they actually state in their moving papers, on page 5, that they are not in the position to vouch for Fuhrman. I don't understand that if Fuhrman -- on the one hand, they're looking for presumption that relies on the fact that Fuhrman is trustworthy, and at the same time they're saying they're not vouching for him, I just don't understand that. So, you know, that's one of the problems that exists here. This is, admittedly, a unique situation. The plaintiffs point out that there are no cases that address this. And I would suggest there are no cases that address this, because it's obvious that all the interests and purposes served by this hearsay exception are served in a case like this, either personally, where you have a witness who is subject to so much examination. So I would say that there's the same motive and interest in these plaintiffs here as there was for the prosecution. You remember, Your Honor, during jury selection, you said, "Basically, this is a civil murder case." Well, these men are civil prosecutors. They stand in the same shoes that Marcia Clark and Chris Darden stood in at that trial. If they think -- let me put it to you this way: If Fuhrman took the stand here, are they telling you that if they would cross-examine him, that they would take an adverse position with him? They would do precisely what the prosecution did.
We'd be calling him as an adverse witness, and they'd be re-directing him. That's what we intend to do.
Even if we call him on direct, we elicit not simply impeachment, which is what they're suggesting, but a number of facts that demonstrate his opportunity to plant, and certainly his motive to plant.
I love it. But it's interesting -- but to me, with all due respect, too, it's a no-brainer. I think that.
KEY QUOTEWe'll see what the Supreme Court says about a no-brainer. Let me hear from the other side.
KEY QUOTEYour Honor, obviously, the use of cross-examine in the statute is not collateral or incidental. That's highlighted by the fact that a difference in 1291, which is used when you're trying to introduce prior testimony, if the party who was a party to the prior action, there's a specific subdivision that expressly allows somebody to bring in testimony that was offered by that party in the prior action. There's no similar provision in 1292.
Well, I just got defendant's oppositions right now, at the beginning of this argument. They cite Moore_versus_American_United_Life Insurance_Company,_150_Cal.App.3d_610. I haven't had a chance to look at it. You have knowledge of that case?
Yes, Your Honor. I had a chance to look at it very late last night. And it doesn't help the defendant for two reasons: Number one, exactly opposite to this case. In that case, the plaintiff, the same party offered the testimony in both cases. Crucial distinction dispositive distinction here. They're going to offer testimony against somebody who is not a party to the prior action, and the other side is offering it. The flip side is offering it -- the prosecution offering the first case. The defense wants to offer it here. Moore was the opposite situation where the plaintiff offered it in both cases. Second, even though it wasn't an adverse party who cross-examined in the prior proceeding, it was the worker's compensation appeals court judgment cross-examined in the prior proceeding. And that was deemed to be the party who was similar to the defendant in the second proceeding. Here, as we pointed out in our papers --
Why are the parties similar? Because the -- I frankly am not very familiar with the worker's compensation system; in fact, not familiar at all. But the Court did say -- the Court in Moore said that the worker's compensation appeals court judgment had an interest in motive similar to the defendant in this case to cross-examine that witness. Here, the prosecution offered the testimony in the first case, had absolutely no motive or interest whatsoever to cross-examine this Mr. Fuhrman, none. It's a crucial distinction. The legislature obviously by putting in the provision in 1291 saying you can offer testimony against somebody who offered it in the first proceeding if they were a party but leaving that provision out of 1292 meant what it said, meant if you're not a party to the prior proceeding it can only be offered against you. If it was offered against the party in the similar position in the prior proceeding. I agree that it's a very clear issue. And the clear issue is that it cannot be admitted here.
I've had the opportunity of reading Moore versus American United Life Insurance Company, and reading the 1292 evidence code. And I am at the present time concerned that this particular point is one of the more important issues in this case with regard to how a ruling will affect the course of the case. Moore_versus_American_United_Life is not a very satisfying case. The court in that case -- there's the issue of, in 1292, almost back-handed way, not exploring with any depth how the worker's compensation judge's interest is actually similar to or the same as that of the defendant, and the motivations are similar and the same as the defendant. It does not explain the parties that were involved in the worker's compensation proceeding, other than the fact that American United Life was not a party. It doesn't say who all the other parties were. So it's not a very definitive case. On the other hand, plaintiffs have really not cited any cases that would explain in any detail at all, really, the operation of 1292, other than citing People_versus_Green, which explains what cross-examination means, as interpreted by the court. It would appear that the evidence code is a statute that has its genesis in a uniform code that has undoubtedly been adopted elsewhere in this country. And if counsel are unable to find any cases in this jurisdiction that deal with that, counsel could at least cite to the Court some legislative history or legislative analysis and any other outside jurisdiction's interpretation of that provision, to shed light on how it would apply to the facts before this Court. So, for the present time, the Court will preclude the defendant from making any references to whether Fuhrman's testimony will be received via his testimony in the criminal trial, or whether he is expected to testify at all on this. The defense has some indication from that witness that the witness is going to appear voluntarily to testify. The Court will reserve that issue for a future time, and the defendant is ordered not to make any offer of that testimony to the jury until it has received permission to do so by the Court. And in anticipation of that, the Court will order both sides to prepare further briefings on that issue. When do you people -- plaintiffs expect to complete the case?
Well, I want to set up a briefing schedule with regards to that issue before the defense puts on its case.
You want to give a couple weeks for briefing that will certainly be think longer than that.
I want this issue resolved before I give my opening statements. We've been five weeks --
Counsel, my order is, you're precluded from making any reference to it at this time.
I move for a mistrial, based on five weeks of Fuhrman before this jury trial and talking about the jury panel.
KEY QUOTEYour Honor, does your order also include, based on whatever's given so far, no mention of the perjury plea, as well?
I notice the plaintiff can delay and delay. I've got to make an opening statement in this case. And I think when they have waited 60 days after motions in limine are to be heard, to spring this on us on the eve of my opening statement that has been prepared for some time and then say now you've got to change it, I think that's prejudicial to us. I think we ought to get the issue resolved.
The Court will order the briefing to be completed by November 1 and filed with the Court. Bring the jury in.
Somebody's inability to depose him was not entirely the plaintiff's fault or the witness's fault. It appears to have been some of your fault.
I love it. But it's interesting -- but to me, with all due respect, too, it's a no-brainer. I think that.
We'll see what the Supreme Court says about a no-brainer.
I move for a mistrial, based on five weeks of Fuhrman before this jury trial and talking about the jury panel.
The Court is at the present time concerned that this particular point is one of the more important issues in this case with regard to how a ruling will affect the course of the case.