And again, this is a very complicated topic. And I'm going to cover it in some detail again, so that you understand exactly what's involved here, and what these tests do, and what they don't do, because they've been grossly oversold to you in terms of their value, in terms of what they really mean. Now, you remember that we talked with Dr. Cotton. DNA is really a fairly simple structured compound that's made up of what are called base pairs. And a base pair is simply two molecules that are attached together with, like, a little rung. And in the DNA in all of our bodies there are only four different kinds of these. And I've got green, yellow, blue, and red to represent the fact that there are only four different ones in the entire DNA chain. And this includes DNA from every living thing. You open a piece of spinach, look at the DNA, same four molecules. And they attach -- do you remember, we were talking about how two of them always go together, and the other two always go together, so the only pieces you can -- possible in a DNA, in your DNA, throughout the entire DNA, are this one and this one. That's it. These are the only two pieces (referring to demonstrative objects). We talked about how you inherit from each parent your DNA, and that the DNA has a structure of a ladder. If it's uncoiled -- and you remember it's all coiled up in what are called chromosomes, and it has the structure of a ladder, when you uncoil it -- and I've got two -- my wife and I, my lovely wife, who is in the courtroom, spent last night painting these and making people here. So this is meant to represent two pieces of DN
Okay. Do you remember that -- just to give you an idea of the scale of what we're talking about, the example that I used with Dr. Cotton was if you had a ladder that had the rungs a half an inch apart, the DNA that you inherit from one parent would go around the world once. Okay. These are about 6 inches, so that's about 12 times. So that the DNA that this scale that you inherit from each parent will go around the world 12 times. 12 times. Now, for one person's DNA to match a crime scene DNA, you have to have every one of these absolutely identical, all 3 billion. Actually, 6 billion. 3 billion from each parent have to be exactly the same. If I do this and turn this around on one base pair, it is a different person. These are not the same people anymore. Okay. Different. Any difference, if I take this off of here, different person 'cause now it's a little different length, okay. And this is very important because unlike fingerprints where all you need is to look at the fingers and you can establish identity uniquely, the only way to establish identity uniquely -- I mean your DNA has to match. If you're a suspect, and the evidence, and you match it, to be the same DNA, it's got to have all 6 billion of these base pairs exactly the same. Now, in the DNA testing that we've heard about that they refer to the forensic community they don't look at all. And I will point out to you that there is testimony that in humans, from one human to another, I think it was 95, 98, 99 percent of our DNA is the same to begin with, so it has no value for purposes of trying to identify somebody. But that's still leaves a lot -- a large amount of DNA where there will be some differences from one person to another, and so they've decided, let's see, can we use this in some fashion to identify people. What a great tool for the forensic community if we could figure out some way to look at DNA in a way that allows us to try and identify people in some fashion. Well, you have been told that they can't do it yet. I mean, they can't do it in the sense they can't look at all the DNA; it's simply not practical. So they've designed some tests, and the first test I'm going to talk about is the RFLP test. That's the one that looks at pieces of repeating DN
Repeating identical DNA. Make any chain back in here. Do you remember Dr. Cotton told you that there are areas in the DNA -- let's say in my analogy, let's say on our ladder, and we're at the city limits of Pittsburgh, there may be a piece of DNA like this that may have several base pairs that repeat over and over and over again. In me, it might repeat 10 times. In you, it might repeat 20 times. And in somebody else it might repeat 50 times or 100 times. So they use this idea that there are parts of the DNA where you have repeating sections as a way of identification. How do they do it? They've got to determine that, again, evidence that's picked up at a crime scene, if it's going to match a suspect, it has to be identical for all 6 billion base pairs. They only look at a very small amount. Here, with a five-probe match in the RFLP system, I think we were using an example of like 10,000 of these per probe, which is not very much when you consider a ladder going around the world 128 times. Five-probe is about 50,000 rungs of the ladder. And that's all they're able to look at. But are they able to measure that precisely? Well, let's check on that. And again, the process that they go through is they collect the DNA off the ground, and we'll talk about -- a little bit about Andrea Mazzola and how she -- her collection techniques, and Dennis Fung's collection techniques. And it's put through a many-step process, and it's cut into pieces, and they try to measure those areas that I told you where there's repeating lengths, repeating sections of DNA. Now, here's what they don't tell you. Dan or Phil, the match window first slide up, please. (Document displayed on Elmo.)
Okay. Okay. Let's -- if they find DNA at a crime scene, and they find this particular section again, and they're able to do that -- they're able to do that, they're able to locate the piece of DNA on the borderline of Pittsburgh, or whatever, for my analogy, they do a measurement and they come up with the evidence at the scene measures 10,000 base pairs. So they have 10,000 rungs of the pattern. That's what their machinery -- that's what their test tells them is in the evidence. So the person who contributed that would have to have identical DNA to that for there to be a true match. Okay. So then what do they do next? They measure the suspects -- you want to put up the next slide. (Document displayed on Elmo.)
Can you zoom out a little bit. Lo and behold, they measure their suspect, and the suspect comes back with 9,500 base pairs. Well, "Gee, Charlie, what are we going to do about that?" This doesn't help us very well, doesn't look like the same person, does it? What they do is they use what's called a match window. And what they say is -- put up the next slide, please. (Document displayed on Elmo.)
Rather than learning how to measure better, we're just going to say, let's give ourselves a plus or minus two and a half percent slop factor, to call something a match -- to call two things a match. And you can see from my chart -- and Dr. Cotton, I think they said her match window was even a little bigger than that but plus and a half -- plus and a half 2.5 percent is easy to work with the numbers. So that if you have a 10,000 base pair section found at the crime scene, and the suspect has any number of base pairs between 10,500 and 9,500, roughly, little different statistically, but that's close enough. Everybody in that range is going to be called a match. Next slide. (Document displayed on Elmo.)
KEY QUOTEThey all match. Again now, listen to the terminology. Doesn't mean they're the same. They can't say that. They can't say that because they can't measure it any better. Now, I just want to make a couple points about this terminology again. We've heard lots of different terms used. Some of the experts have said that -- you know, is it possible that this could have happened? Well, yeah, it's possible. Possible is not very helpful at all. That's not very helpful when an expert says that something is possible or could have happened. Gives you almost no information at all. Not very precise work. And if experts are asked questions, is it possible, this or that, you're not getting very much information about that. Now, the next term, kind of on the ladder of terminology, if you will is, is it consistent with. And again, that terminology -- and this is -- all this stuff is used in the forensic community all the time; is it consistent with. All consistent with means is, yeah, it could have come from the same place, but then again, it might not have. That's all that means. It's no stronger than that. And we've heard a lot of that. Next term on the ladder is probable. It's probable that this happened. Now we're getting a little bit more quantitative, and a little bit more precise, and now your expert's telling you that something is probably more likely to be this way than not. Okay. Then we go up to terminology like reasonable degree of medical or forensic or scientific certainty. Again, that's a higher standard that Dr. Baden talked about quite a bit, and that's like, I'm reasonably certain as a medical expert, or whatever, that what I'm telling you is accurate. Then there is, this is absolutely true. Okay. You shouldn't hear an expert say it's absolutely true because you can't prove anything absolutely, contrary to Mr. Petrocelli. Now, we've gone this far. And we've got two pieces of DNA that match, even though, again, we don't know if they're the same. What do we do from that? That doesn't mean anything unless there's some way of determining the people out in the world, what do they look like. I mean, what do we match this to? How do we come up with some way of assigning a number to it so it has some meaning? And the way they go about doing that is with statistics. And statistics there's a phrase, "There's lies, damn lies and statistics." And you can do just about anything you want with statistics. And what they do is they get together what's called a data base of people. And they're going to take some samples of those people, and then they're going to try and expand and extrapolate from that to the entire world so that they can come up with some estimate of what the heck does it mean that two pieces of DNA appear to at least be within, you know, plus or minus 5 percent of each other. And they don't -- we can't -- we don't have a data bank of everybody's DNA. Frighteningly, that's been suggested in some law enforcement circles. But we don't have everybody's DNA on file somewhere that we can use to compare it to. So they pick people. And do they pick people at random? Absolutely not. The FBI Caucasian data base is made up of 200 white FBI agents. From that they extrapolate to every Caucasian in the world. Statisticians say they do this -- we can do statistics -- we can do anything with statistics. So in order to put any meaning on this, we use this formula, and I'm not going to go into anymore detail about this, where she -- they start multiplying numbers together and wind up with these horrendous numbers like 1 in 150 million or trillion, or whatever. All that means is that they plug these numbers into a formula, and they've come up with what they consider to be an estimate of how rare something is. And do you have the data base slide, please. (Document displayed on Elmo.)
I asked Dr. Cotton about this, about the data bases from which they find these huge numbers. I asked her on November 14, okay. (Mr. Blasier read a portion of the transcript of Dr. Robin Cotton's civil trial testimony.) Doctor, now for Item No. 12 -- now, remember Diagram 12 is the blood from the foyer where you gave us a number 1, 1 in 1.2 billion, was that the African American data base, or do you know?
And she said: I don't believe so. Would you like me to just pull the report? Sure. No, it's not.
So I said okay, for African persons -- and again the reason why they have to do different races is because people are different. We aren't the same. You can't take 200 of us and extrapolate to the whole world. Try to do it. But they know they can prove very easily that there's so much difference between races that they have to do each race separately. I asked her: (Mr. Blasier read a portion of the transcript of Dr. Robin Cotton's civil trial testimony.) For the African persons, what's the frequency of No. 12? 1 in 170 million.
And then I asked her: (Mr. Blasier read a portion of the transcript of Dr. Robin Cotton's civil trial testimony.) So that figure of 1 in 170 million is based on -- on how many people that you tested?
Now, I asked her about -- they did a five-probe match. That means that they looked at five different sections of the DNA for Item No. 12 I said, how many people did you look at to come up with the number 1 in 170 million? How many people did you examine all five of the same probes for? In other words, examine the same parts of the DNA as your evidence and your suspect here. And it is two people. Two people. This is statistics. Okay. Now, let me make another point here about concordance. Mr. Petrocelli talked to you about how all the labs came in and said, gee, we all got the same results and that's wonderful and that means we all did everything right and it's okay. But there was -- going through the testimony, you have to be careful about some of the things that are said. Put up the amount of DNA found on Bundy drop 47 slide. Remember Bundy drop 47? It's one of the Bundy drops. And I asked Dr. Cotton about that. One of the things that they do with DNA during the testing process is what's called a slot blot analysis. You don't have to understand what that is. Basically all it is is a way of measuring, do we have any good human DNA here or not, is this going to be useful for us? It's kind of a way of giving you an advance look before you do all the rest of the testing so you don't have to waste time. I asked her about number 47. (Reading:) "
We don't have to understand how that works. That's just a way of measuring quantities, correct? "
-- estimating how much DNA you have present." Then I asked her: And you did that for item 47, which was the first Bundy drop, and you didn't find any human DNA, did you? " (Pause for the witness to review documents.) "
You just asked me about 47? "Correct. "That's right, we did not. On that slot blot test, we're not detecting any DNA at all." Did she tell you that on direct? Did she tell that you on direct? No. Gary Sims -- look at the bottom. Gary Sims testified about the same item. "What's the frequency, Mr. Sims, in 47? You say you got the same results as Cellmark got. "Frequency's the same. It's 1 in 240,000 to 1 in 2.2 million." Now, that's not the same. That's not the same. I'm going to tell you what they will tell you. They'll tell you -- they'll come back and they'll say, yeah, you know what happened here is our slot blot, we didn't get any, we went ahead and did a test on another part of it and we got a test result. But they don't tell you that part. They don't tell you the part that doesn't work. It has to be dug out of thousands and thousands of pages. That's an indication of how much you can trust this stuff when it's told to you the way it is. Now, Dr. Popovich was called as their expert to talk about the same things that Dr. Gerdes talked about. And my colleague, young colleague, Phil Baker, did a fine job in cross-examining Dr. Popovich. I want to go over some of his testimony and just make some points to you. Put on the first slide, page 93. (Slide displayed on Elmo.)
We're talking about 117, which is the back gate stain. We'll talk about that in more detail in a minute. But he was asked about 117 and he was asked if he knew that the crime scene had been washed down after June 13 and before 117 was collected on July 3, three weeks later. And he said at the very bottom -- and he admitted, no, he didn't know that. "Again, that's not something that was fundamental to my part of this investigation." Well, I understood that his purpose was to come here and tell you that this evidence was hunky-dory. I like hunky-dory. It's much better than match, consistent with. Mr. Baker used it. Makes sense to me. That was Dr. Popovich's purpose in coming here, was to tell you that all this evidence is okay. He doesn't know the fact that that area had been washed down. Next slide. (Document is displayed on Elmo.)
Now, did the plaintiff show you the demonstration that Andrea Mazzola did of her best collection technique? "
They never showed you -- they never showed you the videotape that Andrea Mazzola presented at prosecution about what was her best collection technique? "
I haven't seen that. I'm not -- I have never seen that, no." Now, going down to the bottom finally, he was asked: "And do you -- you have no independent knowledge as you sit here today how Andrea Mazzola collected the swatch at the crime scene, correct? "
Well, I read the transcript." Now, he's the one that's here to tell you that this was done properly. And they don't show him the Mazzola tape. The Mazzola tape, this is LAPD at their supposed best. This is LAPD showing you how they properly collect DNA evidence. Do you remember Andrea Mazzola with her knee on the ground and her hand on the ground and transferring one thing from here to there and -- good heavens. Good heavens. That's not good collection technique. That's terrible. And allows for cross-contamination. It's terrible. Why wasn't he shown that? Maybe his opinion would have been affected by it. Maybe. And another curious point, Los Angeles Police Department -- actually, the taxpayers paid him $30,000, the D.A.'s office, in the criminal case, to assist them on DNA. Why didn't he know about this demonstration tape that they made? Why doesn't he know about it if he's their expert, if he's the one that's coming here to tell you whether they did it right or not? Maybe he did know about it and is too ashamed of how it came out to admit it. I don't know. You can draw your own inferences. Now, he was asked about contamination, too, and he acknowledged that he has observed reagent contamination at the LAPD crime lab. "
You have never said to anyone that you were concerned about reagents contamination at the LAPD crime lab? "
I have." Now, let's go to the next one, talking about item 52. Do we have the chart on 52 back there? Remember -- item 52 is the Bundy drop, the last one out in the driveway that's almost up against the wall or the side of the driveway.
Now, remember they were -- they ran a test on item 52 LAPD and they got a dot show up -- and again, this is the PCR kind of test and I'm not going to go through explaining what PCR is, you know what that involves, technique, very, very small amounts of DNA and amplifying it. And they get a sign of something that's not supposed to be there. A 1.3 dot. They know what that -- I mean, that's inconsistent with their theory. Now, there's another theory, and that is that that 1.3 is a residual of the perpetrator's blood, because the way the blood was collected at Bundy, it was allowed -- it was put in plastic, it was put in the back of the crime scene truck in the heat of the day all day long, it was allowed to cook and incubate and degrade. So one argument is that you're seeing a trace of what was -- what started out in those Bundy drops. But in any event, he says, you know, they did exactly what one would do in a situation where there was a question about the validity of this particular piece of evidence. They repeated it. And they got the result at the bottom. Well, let's look at the bottom. It's the same. They still get a dot there. He's right about repeating. But this doesn't solve anything. He's still got the dot there. This is how they manipulate that stuff to try and convince you that it has more value than it really does. Can you bring out 30 and 31? Leave that one out, too. Actually, let's go to the next slide, Phil. Dr. Popovich admitted that he had never -- he wasn't aware of anything about the EDTA issue, which is perhaps the most important issue in the case, that he wasn't told anything about that. He's here to tell you the evidence is okay, but he wasn't even told about that issue. Or at least didn't discuss it anyway or misstate that. Basically, the opinion is worthless when he's not given all the information, doesn't have all the information or doesn't consider it. Now, Dr. Popovich -- do you remember item 30 and 31 and the quality control strip of the positive control, they're all showing dots that aren't supposed to be there if the tests were done properly. But do they do those over? No. No. They don't do those over. Those are good enough for them. Now -- next slide about reference point. Now, you got to understand from being around this long now how important the reference blood is. It's the key to the whole case. The blood from the victim and the blood from the suspect, you got to keep those things apart. If the blood from the reference vial contaminates evidence, then it's worthless. Colin Yamauchi admitted that he processed the glove right after he opened Mr. Simpson's reference blood and made some -- what do you call the -- a Fitzco card of it and got on the chemwipe with the chemwipe down on the -- on the table. Right after that, he did the glove. Now, Mr. Popovich was asked about that, and he said: "It's my understanding from personal conversations with Colin Yamauchi and from his transcript that he did not work with a reference vial of blood at the same place that he worked with the samples on June 14." But then at the bottom, let's see what Colin Yamauchi says about that on November 18. (Reading:) "
Now, after -- the first thing you did after you opened Mr. Simpson's reference vial and started processing that, was process the Rockingham glove, correct? "Yes." Finally, Dr. Popovich admits again, it's a subjective science, true? It can be, yes. A subjective science in the forensic community is a bad one. You have different experts look at the same data and come up with different conclusions. That's not good. If the operator who was doing the test can manipulate the results by changing the development length, for instance, let's leave it in there a little longer, maybe we'll see some more dots, or let's leave it in there shorter and maybe we won't see some dots where some contamination might be there, when the operator can control the outcome and knows what the outcome is supposed to be, that's bad. Okay. Reference blood. Blood board.
I'm going to talk about that, yeah, next. One of the most important aspects of this case is the analysis of the reference blood. And again, that's the blood taken from both victims at autopsy and from Mr. Simpson at the jail on the 13th. All three samples of which passed through Phil Vannatter's hands. We'll talk about that. (Board entitled "Testing Results" is displayed.)
Let's do a careful analysis of the reference samples. How did they do with those? That's the best DNA in the case. It's the highest quality. They got a lot of it. They ought to be able to do that properly. Well, if you look at the typing sheets, there is evidence of contamination from -- or cross-contamination. By that I mean evidence consistent with Mr. Simpson's known blood and Nicole Brown Simpson's blood and Ronald Goldman's blood, and it shows up in typing sheets for all three labs, LAPD. You can see that Nicole Brown Simpson, there's an end of a 1.2 allele, which of these three people could only come from Mr. Simpson. With Mr. Goldman there's also a possibility of a 1.2 and a very faint 1.1 that could only have come from Mr. Simpson. Cellmark, in the polymarker system, a faint B that could only come, in this case, from Mr. Simpson of the three people. In Nicole Brown Simpson's blood, in Ronald Goldman's blood, we see that one came out okay. In the DOJ typing sheets for Nicole Brown Simpson, again we see a trace of a 1.2 which could only have come from Mr. Simpson, and they share a 1.1 so that's okay. The 1.2 you've got a faint trace of a 1.3. What do they say about this? They say, well, these are probably just artifacts, these are just probably artifacts, we're not going to consider them real. You're entitled to infer from this that there is contamination in this system, that they have allowed Mr. Simpson's blood to get in places it's not supposed to be for these tests to have any integrity at all. Next we get to Bruce Weir. Do you have Bruce Weir's chart? Remember him? Our statistician. He's the one that's going to tell us these mixtures -- he's the one that's going to tell us, you know, that -- how do you measure the significance of these mixtures. The entire cross-examination was spent with him trying to explain all of the errors that he's made in the criminal trial, and some of them, you know, I have no idea where that number came from. Good heavens, folks. That's what we did with Dr. Weir. Everything on there, he made mistakes over and over and over again, and we caught him at it and we caught him at it. And that's an indication of the value of this evidence. One thing that they don't like to talk about is error rates. 'Cause Dr. Gerdes told you, I think Dr. Gerdes, the error rates in clinical labs are about one percent. That is, humans make mistakes about one every hundred times. But that notion is more important than these huge numbers, 1 and 2 trillion, or whatever. How good a lab is in terms of how many errors they make is more important when you're talking about numbers this big. Okay. Let's talk about the Bronco.
Yeah, you can take that in the back. And again the Bronco these samples and bring the Bronco chart out. Incidentally, you remember the mark on the carpeting in the Bronco? Again, another mistake by Mr. Petrocelli yesterday. Bodziak did not testify that he, in his opinion, that was a Bruno Magli shoe print in the Bronco; he said he couldn't say. That's my recollection. PCR testing, which is really what was done mostly in this occasion, is done where you have very, very small amounts of blood -- and again, we're talking about from the Bronco, here, the amount of blood. We've got this big chart; we're not talking about very much blood. You can go over the prints yourself. Okay. Do we have there -- well, maybe I don't need it. All right. The Bronco, which you know, they say, gee, we couldn't have gotten in; the Bronco was locked. That whole idea about the Bronco being parked askew, when you see the pictures, that's not part of an excuse. That Bronco's been moved. Mr. Baker talked more about that. I won't go into that. But let's talk about the inside of the Bronco. Again, we're talking about PCR testing. And this is the first run-through, on June 14, at least the top picture is, and you can tell by the lower numbers. Did they find any results indicative of either victim being in the car? They say yes. But let's look at that. Let's look at that. Let's look here to see whether they're telling the truth, or whether there is question about that. First of all, we have stains, stain 30 and 31. They say, ah, we've got evidence there of blood from -- I believe, Mr. Goldman. Let's put that 29, 30, chart up. Put it on top, or maybe over here in front of the TV.
Am I going to get overtime for this? (Indicating to display of exhibits.) (Laughter.)
30 and 31, they claim that there are four stains in the Bronco that were collected on the 14th that -- that show some indication of blood consistent with the victims. 30, 31, 29, and 33, are the carpeting. First of all, let's talk about 33, the carpeting. You look at the testimony, 33. They didn't find any type in 33 -- that was the carpet sample that Collin Yamauchi took on the 14th -- they didn't find any blood type on that sample. They can't say that this came from the victim. 30 and 31, we showed how the controls didn't work on this test. The controls didn't work. You can see dots on there that aren't supposed to be there. That aren't supposed to be there. Yet, with the great subjectivity that's involved in this stuff allows them to say, well, for 31, we've got to get one of the victims in the car here. So that 1.3 dot, that very faint one, that's how they claim they get Ron Goldman in the car. Okay. That's how they claim. We're going to call this one real. We like this one; this helps our case. This is real. If it hurts the case, it's not real; it must have some sort of an artifact. So 30 and 31 have failed, because the controls also did not -- they came up with alleles that you're not supposed to see the dots lit up. That, you're not supposed to see. The proper thing to do is to do it over. They didn't. This is not a good test. They knew that. They knew that after they got these preliminary results. They knew that, and they knew that we knew it. The only remaining stain that they claim might have come from a victim is number 29, which is on the steering wheel.
I will not finish by lunch. Okay. So we have item number 29, which is, again, the only remaining one that they claim belongs to a victim. By the way, as -- as far as Mr. Simpson's blood being in his own car -- let me read you part of the transcript. (Reading:)
First of all, Doctor, would you find it surprising if there was some DNA that shows up, generally, on the steering wheel in an automobile?
Because someone else could have had a cut on their hand or be perspiring and left DNA at some other time?
Sure. Want to know where that came from? Put it up, Phil, the Robin Cotton slide. (Mr. P. Baker complies.)
Remember, 29 is the one that had a 4 allele -- no, but -- no -- 1.3. Ronald Goldman was a 4, 1.3, 4. They should -- they had a 4 show up. The testimony I just read to you came from Robin Cotton. Of course, you can find the owner of a car, DNA in their car from perspiring or had a cut on their hand. Interesting testimony from their own experts. So, 29, how are they going to deal with 29? They've got the 4 allele, but if they've got no 1.3, though, do they -- how do they decide that this one is going to fit their scheme? And how can we get this consistent with Ronald Goldman? Well, we'll go to the bottom of the page here. Oh, what Dr. Cotton does, she says -- and I'm asking her about this -- hey, there, that's a 4 that you can see; it's very faint; it's below -- and this is her answer -- it's below the control dot. That means there may be another allele that you can't see. And that other allele that you can't see, can't be any other allele than that tests for. Could be a 1.1, a 1.2, so on and so on and so on. And it could be a 1.3. You know what she's telling you there? We'll call it, even if we don't see it, because it fits our theory. We're going to say there's a dot there, even though we admit there's no dot there; it probably disappeared. But we're going to call it anyway, because it's consistent with our theory. Well, they know that that's not going to wash if that does not put any victim's blood in the car as of June 14. And we know from what happened over the summer, that that car was not secure, that people were in it, that they had to do an investigation. Mulldorfer had to do an investigation about receipts being taken out of it. It had no security, or certainly ineffective security -- and we have a picture of it on August 10. Do we have that handy, Phil, or am I going too fast for you? (Photograph displayed.)
There's no blood on the console, where they later find more blood. More blood. And it's my understanding that Greg Matheson came in here and admitted there's no blood there, where we later found it.
Misstates his testimony. Maybe he ought to point that out at side bar, Your Honor.
It's my understanding -- well, you look at the picture. You're the judges of the facts. No blood there. So what do we have? We have an August 29 I believe, a media show. We invite Time-Life Magazine, as I recall --
Anyway, on August 29, they go to the Bronco; and lo and behold, we find more blood. We find 303, 304, and 305. Mazzola and Fung never told anybody they left blood in that car. They're supposed to collect all of it. This didn't collect all of it, the blood. He didn't collect all of it. The blood that they got in August wasn't there in June. So now we have 303, 304, 305, which they mixed together and do an RFLP test. And now we have the victims. I submit to you that this evidence is not worthy of belief, given the history of this Bronco. And why did they wait over two months? Why do they wait until August 29 to search for a second time? Oh, and fine; they take another carpet sample. That's 293. Remember? Greg Matheson takes that on September 1, I believe. And now the carpet fiber tests consistent with Nicole Brown Simpson. You had to be suspicious of evidence that doesn't turn up until this late and is, all of a sudden, much better than what they started with. You should not accept that. You should not accept that. Okay. Let's talk about Mr. Rokahr. You can take that down (indicating to board entitled Bronco Evidence). Do we have the Fuhrman pointing picture? You recall there was testimony from the detectives that this picture of Detective Mark Fuhrman pointing at the Bundy glove was taken, I believe between 7:00 and 7:30 in the morning, in daylight, after he had found the Rockingham glove. That's what the police told you. And it was completely light. We had already seen the glove at Rockingham. So send Fuhrman back to look at the glove at Bundy, see if it's the same. And this picture, supposedly, according to what they tried to sell, was taken after the Rockingham glove had been found. Why would they lie about that? I mean, Rokahr is the photographer. I forget how many years experience. He testified by way of deposition that he's a professional photographer. He was there. That picture was taken in the middle of the night, or about, as I recall, 4 o'clock a.m. It was not daylight. It was dark. It was nighttime. It was before these detectives abandoned Bundy and went to Rockingham. Why? Why would they take that picture? Why not take a picture of the hat? Why not take a picture of the keys? Why not take a picture of the pager? Why the glove? And why lie about it? Why lie about it? I submit to you that you're entitled to infer from that, that that is significant evidence with respect to the credibility of the Rockingham glove, if he takes this picture beforehand, what's going on? Why are they lying to us about this? Okay. Let's talk for a minute about Bundy drops. Again, we've already mentioned Andrea Mazzola's collection techniques. Mr. Petrocelli kept saying that, hey, it couldn't have -- they couldn't have planted the Bundy drops because Mr. Simpson hadn't given his blood when those were discovered. Well, that's certainly true; they certainly -- that's true. But he's missing the
swatches? Mazzola and Fung are at the scene. They collect their swatches, like they tried to demonstrate in their video, probably as sloppily, if not more. They didn't count the swatches. These swatches all look alike. They have variations of shades. It's not the sort of thing that you're going to be able to take five swatches an hour later, look at them and tell you they're the same five swatches. These things are indistinguishable. There's no way to tell them apart, unless you take a photograph or draw a diagram, but none of that happened. So we have Fung and Mazzola collecting swatches from the Bundy drops and collecting these substrate controls from the -- from, supposedly, near the Bundy drops. So -- you saw how well Andrea Mazzola checked substrate controls in her demonstration tape. You saw her putting the water, and went right into the blood stain. So, anyway, we have -- we have these now put in the envelopes, into the plastic envelopes, put in the crime-scene truck, kept there, and then take them to the lab that night. And these swatches -- again, no idea how many of them for each drop, no idea what they look like in terms of the size or shape of each swatch. Nothing. So they then take the swatches out of the bindles -- I'm sorry, out of the plastic bags, to dry overnight, because they've got to dry this stuff in order to test it. It will continue to degrade and ruin if you keep it wet. So they put in the drying cabinets overnight. And, incidentally, this is the same room where Mr. Simpson's blood is sitting in a trash bag all night. They put it in this unlocked cabinet at night to dry. And by all information that we have, overnight should be plenty of time for those swatches to dry. The next morning -- again, they open them up the next morning, and they're processed and they're put into bindles, and they're supposed to go for testing at that point. Now, what do we know about this? We know that Andrea Mazzola testified, under oath, in August of 1994, that she put her initials on the bindles. And again, this is in the morning, now, when the swatches are dry. Again, they still haven't counted them. They still have not counted them. They have no idea whether these are the same swatches that they put in there the night before. They have no way of knowing. They have no way of knowing whether those are the same swatches. And they're all dry now, supposedly. They're put in bindles, and she initials them, again, by way of identifying, a way of at least giving some sort of identification to these bindles, and then they're sent off for testing later. And what happens? The bindles that get tested later don't have her initials on them. That's an indication that they aren't the same bindles. You can infer from that, that they are different swatches. And we will see, when we talk about Mr. Simpson's missing blood, after lunch, that there was plenty of his blood available to make those swatches for anyone who wanted to do so. And it would only take one person. What else do we see? We see in bindle number 47, when Dr. Lee examines it, evidence of what he called a wet transfer. You open up the bindle and you see that, hey, these swatches that are in here now, or ones that were in here at some point, were wet -- were wet, because they've left their mark. And I assume you saw Dr. Lee talk about this and showed it on the chart, that there's evidence that swatches were put in bindles, at least bindle 47, when they were wet. And that's not consistent with any of Andrea Mazzola's testimony about how she did this. That's consistent with somebody changing their swatches, but putting them in the bindle while they're wet. And you can infer from that, that those swatches that are ultimately tested later on, are not the Bundy drops, are not what was picked up off of the ground. Those are clues. That's information that we presented to you that allows you to make that inference about that piece of evidence. As Dr. Lee said, there's something wrong; there's something wrong with this evidence. Look at the amounts of the DNA and the Bundy drops. Very, very small. Very, very small. And after lunch, we'll talk about 117, and we'll start comparing that. And, hopefully, we'll wrap everything up pretty soon after lunch. Can we break now, Your Honor?
Okay. 1:30, ladies and gentlemen. Don't talk about the case. Don't form or express any opinions. (At 11:55 a.m., a luncheon recess was taken until 1:30 p.m. of the same day.) SANTA MONICA, CALIFORNIA; THURSDAY, JANUARY 23, 1997 1:30 PM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
APPEARANCES:
The next thing I want to talk about is I just have a few more topics that I want to ask you to pay an extra close attention to because these are important topics. And the first one that we're going to talk about deals with the missing blood issue. As you know, it's our contention that blood disappeared from Mr. Simpson's reference vial. And let me go through the chronology of how that could have occurred. We start out with Mr. Simpson voluntarily, of course, offering to give blood and giving blood at the jail to Nurse Thano Peratis. I have checked his testimony. You remember Nurse Peratis? He came in here with his syringes to show you how he draws blood, and supposedly how he did it in this case. But as you saw from cross-examination or from -- from his examination, that's not the way he originally described it. The way he originally described it under oath was different. And let's go through that. This blood supposedly was taken on the afternoon of the 13th, I believe at 2:30 or perhaps 3:30. Present were Vannatter and Lange and OJ Simpson, and Thano Peratis, as I recall. There was a suggestion yesterday that Mr. Simpson was hiding all these cuts on his hand when he was looked at by all of these people. That's why they weren't seen. I think that's ludicrous. In any event, let's go to Thano Peratis at the Grand Jury. The Grand Jury was held right after the murders. I think the exact date is in late June, or June -- it's the week after the murders. And he testified -- he acknowledged this at page 370. You have that, Phil? Start right here on this one.
MR. P. BAKER: I got it.
Okay. Grand Jury. (Mr. Blasier read a portion of the transcript of Thano Peratis' Grand Jury testimony.)
Can you describe for us what is the method by which you removed blood from Mr. Simpson.
I put a tourniquet on his arm, cleaned the site with Aqueous Zephrin, and put a 10 cc syringe with about a 20 cc needle, in the arm and I withdrew about 8 cc's of blood. Then I put the blood into a test tube that had a preservative called EDTA, and then handed it to the officer -- to the detective, and then put a dressing on him, meaning Mr. Simpson.
That's his first assertion under oath of how much blood that he drew from Mr. Simpson Then we go to the preliminary hearing that occurred on July 7, 1994, Again, this was after the Grand Jury hearing, less than about three weeks after the murder. (Mr. Blasier read a portion of the transcript of Thano Peratis' preliminary hearing testimony.)
Okay. He's consistent. He's saying the same thing. (Mr. Blasier read a portion of the transcript of Thano Peratis's preliminary hearing testimony.)
Well, it could have been 7.9 or it could have been 8.1. I just looked at the syringe and it looked at about 8 cc's. I withdrew the needle from his arm.
And so here -- here is a second time where he's giving you an even more specific amount. And this is a trained nurse. This man's been a nurse for, I think he said 40 years, if I recall correctly. He knows quantity. He knows amounts. We have a syringe. Do you have that back there?
MR. P. BAKER: Yeah.
And you can see the calibrations on this thing. It's easy. It's absolutely easy to see how much is in there. And he's a nurse. He knows that. So, going back to the transcript: He says I looked at the syringe and it looked at about 8 cc's. Could have been 7.9, could have been 8.1. Then we go to the next page, and he was asked: (Mr. Blasier read a portion of the transcript of Thano Peratis's preliminary hearing testimony.) Did you record the amount of blood you took? No. It's routinely, that's about the amount I usually withdraw.
And then I asked a question about whether he does this on a regular basis. And he says, yes. (Mr. Blasier read a portion of the transcript of Thano Peratis's preliminary hearing testimony.) But do you take blood on a regular basis?
All right. Now we come to the trial. Now, it's December 10 of 1996. A lot has happened obviously. Mr. Peratis acknowledges -- well, we won't go -- we'll go into the testimony about what he says about why he has changed his story. Again, this is another witness -- this a real important law enforcement officer, a person who starts out with testimony one way and then when it becomes apparent that it hurts the police case against Mr. Simpson, changes it. Changes it. Okay. So we're at the trial now, and he is asked at page 134: (Mr. Blasier read a portion of the transcript of Thano Peratis's criminal trial testimony.) Now, when you drew Mr. Simpson's blood on the 13th, isn't it accurate that you drew between 7.9 and 8.1 cc's of blood?
And that was the state of your recollection when you testified under oath about three weeks after drawing Mr. Simpson's blood, correct?
So he's still acknowledging that his -- his best recollection right after this happened is 8 cc's. Then we go to page 137. At the bottom: (Mr. Blasier read a portion of the transcript of Thano Peratis's criminal trial testimony.)
All right. Now, at some point after your sworn testimony at the Grand Jury and the preliminary hearing, you became aware of an issue with respect to whether blood was missing from that vial, did you not?
And that was about the time of the opening argument in the criminal case, was it not?
And you found out that Mr. Cochran had stated in his opening statement that there was about 1.50 to 2 cc's of blood missing from Mr. Simpson's reference vial, correct?
Now, we'll get to where that those numbers came from in a second, but here is Thano Peratis saying, my gosh, I hear from the opening statements that there's blood missing. So what does he do? (Mr. Blasier read a portion of the transcript of Thano Peratis's criminal trial testimony.)
After you found out that that was an important issue, you changed your story, didn't you?
Page 140. (Mr. Blasier read a portion of the transcript of Thano Peratis's criminal trial testimony.) So prior to learning from Mr. Cochran's opening statement, you didn't tell anybody that you'd made a mistake, did you? No. I didn't know I'd made a mistake.
Now, think this through, folks. What he's saying is Mr. Cochran told me I made a mistake. That's not what Mr. Cochran said. Mr. Cochran said there's blood missing. And he's the first guy with the blood. So he, an older gentleman, wonders, oh, my goodness, is this my fault? Is the trial of the century going to be lost because of little old me? So he says, well, I must have made a mistake. So what did he do -- and he acknowledges, by the way, that he wasn't even called by the prosecution in the criminal case. Now, we have another event that happens with Mr. Peratis. He's okay now, but he had a heart attack.
Your Honor, I think that was a misstatement, called by the prosecution. It's irrelevant. I ask that it be stricken. THE COURT: It's stricken.
He has a heart attack. And he has the heart attack sometime after he's testified about how much blood he drew several times at the Grand Jury and at the preliminary hearing. And he acknowledges that after having his heart attack, and this is fairly common knowledge, I think, that heart attacks cause memory loss. You have a heart attack -- people lose -- it affects people's memory and he admits this, and he says on page 141, line 5: (Mr. Blasier read a portion of the transcript of Thano Peratis's civil trial testimony.)
Now, this is a year after he's drawn this blood. (Mr. Blasier read a portion of the transcript of Thano Peratis's civil trial testimony.) You experienced problems with memory loss, didn't you?
Then he says, well, I remember drawing the blood, that's the 8 cc's I know I was wrong I can't say that. I mean, you've got me all confused now. You folks have to decide what is the accurate information that you've gotten here. How much blood was drawn? Are you just going to say, well, we'll let him change his story? He's testified under oath a few times, but that's okay. He must have made a mistake, Johnny Cochran told him he made a mistake. I submit to you that that is not a reasonable interpretation of that set of circumstances. So as of now, when he comes in here to you two and a half years later, he tells you that he has a clear recollection. Move to the bottom of that page, please, Phil. He testified he remembers specifically the blood stopped coming into the syringe, because it hit the vein. He recollects now that he never looked at the syringe. He remembers that specifically. And what he does is he describes this experiment that he did where he was able to recreate a syringe which had the same amount of blood as that drawn from Mr. Simpson's blood. And wouldn't you know, he does his experiment and he says, well, this looks about as much as I drew two and a half years ago with Mr. Simpson. Let's go measure it. How much do you think he comes up with? One and a half cc's less. No. Two, actually. He says six to six and a half, as I recall his testimony. So he comes up with exactly the amount missing. Exactly the amount that Mr. Cochran has told him is missing. Or at least that the defense alleges is missing. So what do we have now? We have this blood vial that he has taken from Mr. Simpson and it's put in an envelope -- and, Phil, do you have a picture of the envelope up there for me? (Evidence envelope displayed.)
Now, we know right away that they have not followed the proper procedure at all in processing this. Blood is supposed to be frozen. He told you that. Or refrigerated, excuse me. They, the LAPD, have their envelope that tells them how they're supposed to do this. And the reason they have these kinds of procedures are to protect the integrity of the evidence. That's the reason why they have all these procedures. So we have the officer requesting withdrawal of the blood -- in the middle, Phil. Can you move to the middle and can you zoom in a little bit. (Elmo is adjusted.) First of all, it's supposed to completely fill the vial that's -- the officer supposed to tell the nurse completely fill the vial in your presence then initial complete below. And finally when the affidavit is completed, sign below it as a witnessing officer and seal the vial in this envelope. That's to protect the integrity of the evidence. And you've seen some of the evidence in this case brought in, and you see the tape around it, and you see the seals, and the different colors of seals. These are all things that are designed to protect the integrity of the evidence. Why didn't they do it with this blood? That envelope was left open. It was given to Detective Vannatter, who at that point was two miles, as I recall, from the crime lab where he could have turned it in; Parker Center, where he could have turned it in. I think he's right at Parker Center or the jail's right in that general area there. Where it could have easily been turned in and booked and protected, protected from breakage, protected from whatever. But what does he do with it? He decides let's take it to the crime scene. And by the way, we also, if we look further at the envelope, we see that Thano Peratis' name is there. And is dated 5/19/94. That's a month before this blood is drawn. Maybe he miswrote the date. That's certainly possible. But maybe this envelope was presigned or maybe it's not the envelope that was used. In any event, this open envelope now is in Phil Vannatter's hands on the way back to Rockingham. Actually, I think he testified that it sat on his desk for a little while he had some coffee. I believe he acknowledged that he had never taken blood back to a crime scene before. He admitted it could have been -- it could have been booked right there at Parker Center. Absolutely no reason in logic to take that blood to Rockingham. And, of course, the envelope is unsealed so if there's anything that happens to be removed from that vial, one and a half cc's, for instance, who's going to know? They haven't protected the integrity of this evidence. There's no -- the envelope's not sealed. No way to tell. And, of course -- again, as I mentioned before, what we asked these people about, do you keep track of how much blood you collect. Of course not. As if that's not important. Well, it's obviously important. Now, how do we know -- how do we get from what I've talked about to 1.5 cc's of blood missing? It's really quite easy. Oh, let me -- before we get to the calculation. Remember what happened, supposedly, at Rockingham with this blood? Andrea Mazzola doesn't see anything. She takes a little nap. As I recall, Fung and Vannatter are standing in the foyer area, interestingly enough, right in the area where there were blood drops later found by Dr. Lee and it's handed to Fung, supposedly. Fung takes it, and again there's -- plenty of time now has passed from which blood could have been taken out of that. No question about that. Vannatter had his cup of coffee or whatever he did. But now we have the blood at Rockingham. And what does Fung claim he does with it? He puts it in a trash bag. A trash bag. Correct procedure? Does this make any sense to you folks? He puts it in a trash bag and gives it to Mazzola who doesn't know what's in it. Now, these are folks who are trying to sell you on the idea that they did everything right here. That everything was done correctly and properly, and you can trust all this evidence. Not when you look at it carefully, you can't. So Fung supposedly takes it back in the trash bag, back to the crime lab, leaves it on a table overnight in the same room with the drying swatches. The next morning when he starts looking in some of it this stuff, actually, they started looking in stuff the night before, they number items sequentially or they try to. Wouldn't you know that the blood vial was given the number 18. Item No. 18. Why does that make any difference? Makes a difference because Item 17 is a pair of tennis shoes that Mr. Simpson gave to Detective Lange. Detective Lange took them for evidence, took them home. Not sure why. But took them home overnight and didn't bring them into the lab until the morning of the next day, the 14th. So we have the sneakers coming in; they're given Item 17. The blood is given Item 18. And it obviously, at this point, appears that the blood came in at after the sneakers. Well, now we look at the paperwork. Eventually, they noticed that, and they changed the numbers, and that's the only real significant item where they say, oh, we better change this. So they change Item 18 and now it's Item 17 because if they leave it as Item 18, it looks like maybe it was kept overnight by Vannatter. Okay. Now, how do we get to blood missing? Very easy. Greg Matheson came in here and told you that, first of all, one and a half -- well, let's start with -- go ahead and put that chart up, Phil. (Document displayed on Elmo.)
We start with the 8 cc's that Thano Peratis has testified under oath several times he withdrew. There's testimony from business records from Los Angeles Police Department and Colin Yamauchi that on the morning of the 14th, right before he does the glove and the rest of the Bundy drops, by the way, he takes 1 cc of blood to determine Mr. Simpson's blood type and that was put on a little round card. It's called a Fitzco card. And they're very precise about that. They know it's 1 cc. And that's in the records. Then we have a record of the Los Angeles Police Department Scientific Investigation Division from the toxicology department, the toxicologist who took this and tested it, and Flaherty was her name, and Greg Matheson acknowledged that the records show that on June 20, when it was sent to toxicology, there was 5.5 cc's in the vial. We started with 8. Yamauchi took out 1. That means there should have been 7. But by June 20, according to toxicology, there is 5.5 cc's. Now, they keep telling you that, yeah, we don't count this stuff. Come on, you're being too hard on us. We don't keep track of reference blood. Not that important. Of course it's important. We don't count this stuff. Did you see him bring in the toxicologist to say, hey, that 5.5 cc's, that's just an estimate that I put down on my paperwork? No. You didn't hear -- you didn't hear from that person. Because they know there was 5.5 cc's when there was supposed to be 7. As early as June 20, that is missing. 1.5 cc's of blood, which contains approximately, by all of the experts you've heard, 30,000 nanograms of DNA. 30,000. And we're talking stains here of 1, 2 nanograms, 40 nanograms, 50 nanograms. We're talking tiny amounts. 30,000 nanograms goes a long, long way. Now, the next day -- well, let me not get ahead of myself. We know that stain 117, which I'll get to in a minute, has about 150 nanograms, which is, by the way, much, much more than the Bundy drops. We'll talk about that in a second. Now, we also have reference blood from both victims which is collected at autopsy I believe on the 14th as I recall, 14th or 15th, and for some reason, Vannatter picks that up, too. He says I want that blood, too. So he picks up that blood now. We have no way of knowing how much blood is gone from that vial, if any. There's no accountability at all here, folks. This is how you take the measure of the value of this stuff. There's no accountability. There's no accountability. And you know when they draw these diagrams, these crime scene diagrams, they draw them down to the 10th of an inch, 14th of an inch, 32nd of an inch. All this time, when it comes to the blood from the victims and the suspect in the case, in this particular case of course, we don't keep track of that stuff. All right. Now, we have missing blood. Could be as early as the afternoon. Could be right after it was taken. Now, let's go to the back gate. Can you bring the big chart with blood drops around.
MR. P. BAKER: Dan, it should be somewhere -- right there. (Board entitled "Blood Drops at Bundy June 13, 1994.")
Now, you recognize this as the diagram -- I think it was put in by the plaintiffs I believe -- of the Bundy scene with the Bundy drops identified by their position and by their photo I.D. numbers. And of course this blood on the back gate, at this point, becomes a huge issue. But on the 13th, we have several officers who say, hey, I saw blood on the back gate, and one or two of them, I think, even wrote it down in their reports. Terrazas says he saw blood. Rossi said he saw blood. Phillips claims to have seen blood but does not describe any blood being on the mesh of the gate. I think Lange claims to see it, too. So the criminalists finally arrive. Fung and Mazzola finally arrive, according to Lange, I believe Lange testified that he said he told Fung, very important blood in the back gate, better collect it. May be wrong on that. But Dennis Fung, he's supposed to be -- he and Andrea Mazzola are supposed to be in charge of processing this crime scene, of locating the evidence and processing it and collecting it so that things can be done to it, it can be analyzed. What does Dennis Fung tell you? What did he tell you here in November of 1996 about the gate? (Reading:) "
How many times did you walk in and out of the back gate while you were processing that scene? "
It's my testimony that I don't remember seeing or having been -- I don't remember being told about the blood on the back gate on that day and I don't remember seeing blood on the back gate that day." So he doesn't see any blood, if he looks. How about Andrea Mazzola? Move down a little bit. She says: "To the best of my recollection, I don't recall even seeing a gate." This is the way the killer got away, through the back gate. Through the back gate. That's where you look first. But they don't look there, according to their testimony. Now, another fact, when they put these photo I.D. numbers down, they're going in sequence about how they collect this stuff, they told you, and the first Bundy drop is number 112, I believe. Down in the lower right-hand corner. The one near the -- closest to the bodies. Still not real close to the bodies, but closest to the bodies. And that's number 112. Then they go to 113, which is west of 112. Then they go to 114, which is again west of 113. Then they go to 115, which is right at -- almost right at the back gate. Very close to the back gate. That's 115. That's the photo's I.D. number. Now, what do they do now? What's 116? Remember when I showed you that picture. Turns out the photo I.D. number 116 is a stain from the front gate. From the front gate. You can infer from that that they were working their way back toward the back gate, that they checked the back gate, didn't see anything and thought maybe they meant the front gate, and went around, found some blood on the front gate, collected that and then came back to make 117, the drop out west of the gate. Okay. That's one certainly reasonable inference you can draw from the sequence which they picked up that blood. Now, how about the other officers who claimed to have seen it? Well, maybe they did. Maybe they did. Maybe there was. Maybe there was. But this crime scene was closed down and I believe around 3:30 in the afternoon on the 13th it was washed down. Who knows what it was subjected to from then until July 3. But we know from these officers who come in here and swear under oath that they could tell you what they saw -- let's take a look at Terrazas, what he came in and said.
So Terrazas has got -- of course he's shown a picture, by the way, with these numbers right next to it, and so he circles -- he circles 115 and 116. What about -- Rossi, I think, was the other one.
All right. Okay. You can see here that 116 is the rust area that's been circled and not any blood spot. Okay. Here's Rossi. Rossi -- now, I think Rossi circled the rust. In any event, they haven't got the blood right. They haven't got it where they claim -- they haven't got it where they say it was later found on July 3. It doesn't work that way. Now, how do they find 115 and 116 and 117? They have a D.
Okay. So we have -- by the way, we have all these guys, all these cops going back after they've collected evidence. We've got Lange and Vannatter, they're in charge, and do they check any of the paperwork? Did you guys get that back gate blood that we told you about that's so important? Did you collect that? Apparently nobody checks, nobody checks, 'cause nothing is said, until the D.
wants to come out and do a walk-through on July 3, and that's when they, oh, look at this, more blood, more blood. So we wind up with 115, 116 and 117. 117 is a large drop of blood or a smear of blood on the mesh that has 150 nanograms in it. 150 nanograms. Compared to some of the Bundy drops in evidence, as little as 1 or 2, as I recall. And has been out there three weeks longer, been out there in the elements three weeks longer than the Bundy drops collected on the 13th, and they're trying to tell you that 117 was there at the same time as the Bundy drops. It wasn't. And of course by July 3, Vannatter has had his access to Mr. Simpson's blood. 150 nanograms is a small part of the 30,000 that we submit to you are missing. Now, here's another motivation as to why they might do this. They might know also that the Bundy drops are greatly degraded. There's not much DNA, very little amounts of DN
They admit that -- they admit that they got to make their case better at Bundy. So we wind up with 117. Now, let's see the picture of the back gate that was taken on the 13th. Apparently nobody told the photographer that there was important blood stains on the back gate. There was only one picture of the back gate that shows any of this area at all. And we can zoom in, and you can see there's one spot there, but there is no spot that corresponds to 116. It's just not there. Can you zoom that in.
MR. P. BAKER: It's zoomed in.
I think we had a bigger one before that was zoomed in. And what did the police tell you when they came in? We asked them. What do they tell you? It's there. It's just not in the picture. Trust us. Trust us. It's there. It's just not in the picture. That's one of the mistakes they made. Okay. They put it in an area where there had been at least one picture taken. They forgot that. All right. Now I want to move to what I think is the most interesting area of the case, and that's the EDT
Another thing they don't know, by the way. Phil Vannatter, I doubt, knows that blood in a purple-top tube has more than just blood in it. It has a chemical preservative called EDTA. It's in there to keep the blood from coagulating, to keep it preserved. It's a chemical. It can be easily identified. So, where we arrive at is, allegations are made before the criminal trial, during the criminal trial, of course, that this evidence and other evidence was planted. Just like we're making to you those allegations. The Los Angeles D.A.'s office, hey, we can disprove this, we can disprove this, we can show that none of this stuff was planted. And what do they do? They have Rock Harmon, who's one of the Deputy D.A.'s, one of their DNA experts, write a letter to the FBI, and he says -- second page of the letter. (Document is displayed.)
"We would like you to test those items for the presence or absence of EDTA in order to refute the possibility" -- not the truth, but "to refute the possibility that the stain on the sock, item 13, could have come from Nicole's reference sample. Similarly, we would like you to test item 117 to refute" -- not to find the truth -- "the possibility that it could have come from Simpson's reference sample." They pick two samples, send it to the FBI. They'll know there's no EDTA in this blood. They give it to Special Agent Roger Martz, and Special Agent Roger Martz, as you know, tests it, designs a test, and lo and behold, he comes up with EDTA. He comes up with EDT
He comes up with test results consistent with the presence of EDTA, and he does it in a way that is designed to determine whether it's present or absent. Not how much there is. Just present or absent. And that's the test that he does. And Dr. Rieders described it to you, and Dr. Lee admitted the same thing, this test that Martz used was not designed to find out how much was there. Just whether it was there. So Special Agent Martz finds EDTA. What do we do now? Do we test the Bundy drops now? Do we test some of the other evidence to see whether maybe there's EDTA in the other evidence? No, please don't do that. They stop. We don't want to do any more testing. They stop. So we now have EDTA on two key pieces of evidence, and the sock, as we'll talk about in a minute, has the big stain in the ankle that has blood consistent with Nicole Brown Simpson. Both these stains now we have some EDTA. Well, they got to come up with an explanation for that. And what does Martz do? Martz, on his own, decides to test his own blood. And he testifies in the criminal case that he tests his own blood, and lo and behold, he finds EDTA. Must have it naturally in our blood because of what we eat and whatever, must have the same amount because of what we eat. Must be there. That's our answer. That's our answer.
Approach the bench. (The following proceedings were held at the bench with the reporter.)
Martz testified about this in the criminal trial.
MR. P. BAKER: Mr. Blasier can't hear.
Martz testified about this in the criminal trial. He wasn't called on this trial. He didn't give this information at all.
They didn't talk about this.
MR. P. BAKER: I found it. This is page 180 of the 12/10 -- 12/20, page 108.
Of course, but I'm giving this explanation that Martz gave at the criminal trial that it naturally appears in your own blood. That didn't come into this case.
MR. P. BAKER: Terry Lee was examined about it. Terry Lee was examined about it. In fact -- let me finish. In fact, charts were made showing Roger Martz testing his own blood sample. This is all an issue that was taken during Mr. Blasier's examination of Dr. Rieders and during Mr. Baker's examination of Dr. Terry Lee.
They can talk about Martz testing his own blood and what these other witnesses said about that. What we can't talk about is what Martz said in the criminal case. That didn't come into evidence in this case.
Sustained. Objection sustained. You may not refer to testimony of Martz with regards to this occurring in food, et cetera.
MR. LAMBERT: I ask that it be stricken from the record. (The following proceedings were held in open court, in the presence of the jury.)
Okay. Ladies and gentlemen, the reference with regard to Martz saying anything about it occurring naturally, that portion is stricken. That was not received in this trial, by -- through witness Martz.
Folks, we don't have the witness Martz. Mr. Petrocelli, in his opening statement, said I'm going to bring him here for you; Mr. Lambert said we're going to bring him here for you to explain this. Never did. Never did. We'll Talk about that in a little bit. So what do we have left? Forgetting Mr. Martz, now, for a second, we have test results that Dr. Rieders tells you, has extensive experience with this -- the EDTA in the back gate and the sock stain -- and that, in his professional opinion, it is consistent -- the only source consistent is the purple-top tube that blood is preserved in, EDTA tubes. That's the only consistent source. Now, what did the plaintiffs do? Instead of bringing out Agent Martz to explain this, to explain his side, who did they bring? You got to find another expert. So they find Dr. Terry Lee. Dr. Terry Lee has never been an expert before, in the sense of working on a case, testifying as an expert. This is his first time. What do we have to tell us about his bias? What we have are his work notes. Phil, why don't you put up page 1 of his work notes. (Document displayed.) Incidentally, one of the things that Dr. Lee does testify about is that, since the criminal case, there were scientific studies done, showing that EDTA would not be naturally occurring in the blood from food or anything else that we might take into ourselves, too. That is not an explanation for the EDTA that showed up in the evidence in this case. So we have Dr. Lee and we have his handwritten notes. He sets out very -- they're good notes here, detailed notes -- setting forth his thought process as to how he's going to go about what he perceives to be his task. And it's a little difficult to read, but basically what he does is, in the first page, he sets out what some of the possible options are in terms of what's going on here. He's describing the problem to himself. You go to page 2, and at the very top, he's saying individuals doing the testing have no other motives to establish the fact that tests will be -- not be fake, or something like that. Anyway, he's describing his thought process about how he's going to go about his job. Then we get to page 3, where he writes down what his job is, at least as to what he's been hired for. What he says -- and you want to go down to the third paragraph from the end -- he describes the scenario we have here; and that is, some EDTA, not a huge amount on the charts, but certainly EDTA that is unexplained by anything other than purple-top tubes. And he says, and under your outcome 3, which is what we have, if not planted, convincing argument must be found for why the EDTA is present at that level. If not planted, convincing argument must be found. This is the expert. Experts are supposed to be impartial. Obviously, this guy wasn't told to be impartial. He was told find us an explanation: How do we get around this EDTA stuff? How do we get around this EDTA stuff? So what does he come up with? He comes up with ghosting. The notion that, well, maybe the EDTA that showed up was left over from some of the earlier samples, and maybe that -- maybe that's what happened. Well, why don't we bring Martz back, ask him? Lambert said he's going to do that. He told you that. Never did. Never did. We asked Terry Lee, hey, did you ever talk to Rodger Martz about this? He said, I sure would have liked to talk to that Rodger Martz. Why didn't you? Plaintiffs told me that the FBI didn't want to be involved in the civil case. Bill Bodziak was here the next day, testifying. What do you mean, the FBI didn't want to be involved in the civil case? Rodger Martz doesn't want to be involved in the civil case. Rodger Martz doesn't because his tests reveal the presence of EDTA that allows you to conclude that that evidence is planted. Okay. Let's talk about the socks.
Yeah. Get me the history of the sock board. Let's start talking about the socks. There were only two items of clothing taken out of Mr. Simpson's house on June the 13th; and that is, the socks and the tennis shoes that we know that Detective Lange took home. These are dress socks, supposedly found in the middle of the master bedroom, and they're the only clothing on the ground in the bedroom. They look like -- if that's truly where they were, they look like they were left there in a hurry. They find no other clothing of significance in the bathroom, the bath or the shower. And they're looking for a murder weapon and they're looking for bloody clothing. They're looking for clothes that a killer may have worn. And here they come across this pair of socks, supposedly sitting right in the bed -- right on the floor, completely out of place. Completely out of place. Anyone in their right mind who had any training in detective work, would say that's an important piece of evidence; that may be the most important thing we have here, the only clothing that's there that looks like maybe it was just recently worn and hurriedly put there. That should be considered a very important and significant piece of evidence. But what do they do? Fung and Mazzola don't really carefully examine them at all. They don't -- they don't notice anything at all. They're supposedly trained to recognize blood. They could have held it up to the light and looked out at them to see if anything was there. They claimed that, oh, no, it's dark fabric, would have been hard to for us to see, anyway. There's no blood around them, of course. Now, here's one other point, too. On this floor, you can see that those socks are not touching. Those are two pieces of clothing -- just because we call them a pair of socks, they are two separate and distinct items of clothes. What do Fung and Mazzola do? They throw them in the same bag, forever contaminating one with the other. Now, we have the socks that the detective would conclude, this is important stuff; this is what we ought to look at first; this might be the murderer's clothing; let's look at it first. What do they do? They put them in the same bag and they take them back to LAPD. And, of course, they don't -- again, they don't have a manual that tells them how to handle stuff. They just take them back to LAPD. Now, let's look what happens after this. Dr. Baden asked to inspect the physical evidence. And again, nobody apparently looked at these socks for any evidentiary value. And I believe it was Dr. Baden, who was seen in mid June -- mid to early June, that wanted to inspect the evidence, and Vannatter says no, don't stand there, don't touch anything we keep in the bag. We don't want you to really look at it, exactly. If you're from the defense, don't really look at it and go, go away, no blood seen at that point at all. (The board entitled History of socks item 13, June 13, 1994 at Rockingham) Now we have June 29, when Mr. Petrocelli described as just an inventory, when it was -- actually, they were analyzing -- they were looking at this evidence carefully to see what testing should we do, and whether we can split the evidence with the defense. Now, do you have that none obvious document? (Document displayed.)
We have Greg Matheson looks with Michelle Kestler with Collin Yamauchi. Surely they know this is dark clothing, and if there is anything of evidentiary value to it, they should look at it in the light, we would think. And they write down, dress socks, blood search, nothing obvious. No obvious blood stain. Now, Matheson comes in, tries to tell you, well wait a minute. I think what I meant there was, we'll look at it later. This was their going through the evidence, trying to determine what should be tested, what's important what's the most important stuff. Still, nobody focuses on the socks, other than to examine them and say there's no blood there. Now, what happens to them? They stay in one of these boxes until, I believe, it was August 1st or August 4th, when Collin Yamauchi first examines them and sees blood. Now they have blood on them. For the first time, it's being seen. And it's a lot of blood. There's that big stain around the ankle of one of the socks that was sent to the FBI and had EDTA in them. And we have testimony from Gary Sims, who I believe testified that he knew that he could see the blood with the naked eye. And I believe there may have been one or two witnesses, as well, to acknowledge that you can -- yeah, you can see it; it's there after August, now. Not before -- not before, but after August. Now, of course, defense claims foul; that, all of a sudden, now, the case is getting better again. We got socks, now, with blood on them that -- where none was obvious before. And what's going on here? And, of course, prosecution denies there's been any planting. So we examine the socks and we find EDTA, or the FBI does. There, Dr. Herb MacDonell and Dr. Henry Lee examine the socks, and they find these little balls of blood on surface 3. Remember, if you look the at sock as being surface 1, 2, 3 and 4, and the big stain was starting -- started on surface 1, went to the other side, surface 2, and then these little balls of blood came on the opposite side of the ankle from surface 2. And it was Dr. MacDonell's professional opinion that the only way that could have happened is if blood was smeared on that ankle, and while the socks were not being worn. But if the socks had been -- were being worn at the time that blood got there, there wouldn't be any blood at all on sides 3 or 4. So that, in his opinion, it was put on there, and a little bit of it went through to side 3. They bring in Dr. Fox to say -- who basically says that, now, you know, it could have happened other ways. But it really depends -- his opinion depends on the -- he says, how do you know that those blood drops are in the linen themselves -- or bound to the linen. And all of his theories revolve about the notion that it wasn't bound to the linen; it could have happened this way, as long as these little balls weren't bound to the linen. But Doctors Lee and Dr. MacDonell tell you -- who looked at it, by the way, under much more magnification, to my recollection -- said no, it's bound; it's bound to the fabric of the sock with little balls of blood. Okay. Now, this chart -- Mr. Petrocelli, toward the end of his argument yesterday, was talking about the Willie Ford video. Remember, that's your video -- to make sure that we can't -- they can't say we broke a dish. The only video the police took. And we have a scenario with Willie Ford, Dennis Fung, and the collection of these socks. And Mr. Petrocelli tells you that it's obvious what happened: The Willie Ford videotape was taken after the socks were collected. The socks have already been collected; that's why they aren't there. They're not contesting that. They weren't there. They aren't saying that Willie Ford really did see them. They're acknowledging that Willie Ford saw no socks at 4:13, when he took that videotape. You have to remember this whole sequence of Willie Ford picking up the socks -- and the video takes place over a relatively short period of time -- according to Fung, he picks up the socks between 4:30 and 4:40. The Willie Ford video is at 4:13. Obviously, if that timing is correct, then the socks have been planted, because they weren't there. But that's just thinking about the clock. I understand that Dennis Fung came in and tried to say, well, this is kind have a ballpark -- kind of a ballpark -- trying to explain away Willie Ford's testimony that there are no socks here; there are no socks here before they were supposed to have been collected. Well, let's look at this picture. Let's look at these pictures. (Indicating to board entitled History of Socks, Item 13, June 13, 1994, at Rockingham.)
Okay. And this is kind of important. It's a little bit -- a little tricky, so we'll walk you through this carefully. We have three pictures up here. And they all have the socks in them. Okay. What can we tell from these pictures? Okay. Let's look at the picture on the left here (indicating to photograph entitled Bedroom), has the socks on the ground, but no tag, no number 13 (indicating to photograph entitled Bedroom). Remember in the sequence, what they do is, they put the card down, then they collect it, then they pick the card up. So what can we tell about this picture versus this picture on the lower right and the one right above it? You can see the card, too, as well. What we can tell is that this picture (indicating to photo marked "bedroom") was taken before these two because there's a card down there, yet no card down there yet. Can we tell anything else going on with these things? And they were all taken probably really close together in time. So we know that the picture on the left is taken first. What else do we know? Well, if you look around at these pictures, you'll start to see other things. One other thing you see is a strap on a bed. The picture on the left has a strap on the bed which is hanging down (indicating to photograph entitled bedroom). You can see that clearly. You can see that clearly. The picture on the right top that has the socks and the tag, which is right before collection, has the strap up. Okay. You with me so far? The strap is up (indicating to photo entitled Socks on Rug). What can we tell from that? What we can tell is, at the time those socks were collected, the strap on that bed was up, because here's -- the strap is already up, socks are still on the ground. Okay. With me so far? Now, we have Willie Ford's video; we have Willie Ford's video. Do you -- think about it: This one video that the police took to protect themselves in case they broke something, has a picture of this area around the same time. And I'm telling you that -- By the way, Mr. Petrocelli said that the Ford video was also taken after everything was collected. Phil, play the part where it shows the drops of number 12 in the foyer, where number 12 hasn't been collected yet.
THE COURT: You may. Ladies and gentlemen, take ten minutes. Don't talk about the case. Don't form or express any opinions. (The following proceedings were held in open court, outside the presence of the jury.)
Judge, the way this is going -- I want to be able to finish on Monday; I don't want to be rushed on Monday. You know, I can see what's happening.
No, we didn't. The part of 12,
MR. P. BAKER: The portion of the video was authenticated when Willie Ford stepped on that chair and I asked him if that was the videotape. It was moved into evidence. And you told the jury that.
Discuss -- play the part in question concerning number 12.
MR. P. BAKER: No, it wasn't an issue. The video became an issue -- my turn -- the video is in. He authenticated the video. You can't correct portions because you misled the jury about which evidence is collected.
You're making the closing argument here.
MR. P. BAKER: You can't cherry-pick the document because you're in closing argument.
I had an understanding -- Your Honor even pointed out in chambers that only certain parts of certain pieces of evidence were shown. And I thought that was the ruling. Don't you remember, you asked me in there, how are we going to tell what parts were shown to the jury?
MR. P. BAKER: This issue --
Now, they conceded that was not shown. There was no examination about the foyer item, and now they're -- and also, that chart wasn't used, either, in --
MR. P. BAKER: That videotape was authenticated. It shows blood in the foyer -- that's not been collected. You told the jury that that video was taken after evidence items have been taken.
You can say whatever you want to the jury. We'll take care of that. I'm concerned about you showing the jury things not in evidence.
Okay. You can show what was shown to the jury, but you're not going to show what was not shown.
The board is not in evidence, either. It's not in evidence.
MR. P. BAKER: In terms of the board, I think --
It's a different board. There's 1361. That number 2 is the one that you marked.
MR. P. BAKER: I got to fix that tomorrow.
I think the photographs that have just been going through have not been moved into evidence, have not been used before, I believe, because the board was not used.
Okay, folks, we're going to get done with this. This is my last point. I apologize for going on as long as I have. I went much faster in the shower this morning, so. . . (Laughter.)
This is important. Again, I want to walk you through these pictures. You've got the one on the left, which there's no card on the ground, so we know (indicating to photo entitled Bedroom) that this is before -- this picture is taken -- of these three pictures, this one had to be taken first in the sequence of things. These two pictures up here (indicating) were probably taken right around the same time. You've got the card on the ground, the number 13 card on the ground. You can barely see it in the top one, but it's there. And this is taken, presumably, right before collection. They put the card down. Now, Mr. Fung has put the card down and is getting ready to collect. And you know that in the picture on the left, the earlier picture (indicating to photo entitled Bedroom), this strap is down on the bed; socks are still here. In this picture, the socks are here with this strap down. Over here (indicating), to the top right-hand picture, the socks are there. The card is there, but now the strap has been moved up; we don't know how. (Indicating to photo entitled Socks on Rug.) Maybe Mr. Fung lifted it. There's nothing mysterious about that, the fact that the photograph shows that, while those socks are still on the ground, before they've been collected. Folks, the strap on the bed is up. Now, let's compare this with the Willy Ford video of -- Mr. Ford took a video of this room, and he took a video of this area. And if that video shows a bed with the strap up, then maybe they're right. Maybe the socks had already been collected. But if that video shows a bed with the strap down, then we know these socks were planted there, because this is before they were collected. The strap goes up, the socks are still on the ground. If Willy Ford's video shows the straps down, that means, at some point, when he took his video, it was before that, and there were no socks there. Play the video. (Videotape played, displaying 3:13 p.m, 6/13/94.)
Stop right there. You can back up a little, Phil. You can start to see it here. Okay, go a little further. (Mr. P. Baker complies.)
Stop it. There it is. There it is. The strap is down, folks. This picture was taken before that one, and there are no socks on the ground. Those socks were put there. They were put there before they were collected by the Los Angeles Police Department. Blood was put on them at some point that has EDTA on it. If you have -- you've seen -- have you seen enough cockroaches yet to accept the fact that this physical evidence is not worthy of acceptance in a case of this seriousness? I submit to you that you cannot accept this physical evidence. You cannot accept it. You must make your decision in this case based on other -- other bases. I want to thank you for your attention. I know that, as attorneys, we -- sometimes we get in the heat of battle and say and do things that are immature and not very nice. If I've done that, I apologize to you. I hope other people do, too. Thank you very much.
Did you really think Coach Baker was going to keep me out of the lineup? I don't think so. Ready? If it please the Court, brother counsel, ladies and gentlemen of the jury: Good afternoon. Why Dan Leonard? Why is he arguing this part of the case? My brothers, Baker and Blasier, are obviously more intelligent, wittier. Mr. Blasier especially has more analytic skills, but I'm a hard-headed Irishman. One thing I have is common sense. That's what it is going to take you to decide whether or not you're going to accept the photographic evidence that's been presented to you in this case, common sense. Common sense will tell you that these are photographs that come too late and cost too much. Now, let's talk a little bit about the timing of this evidence. We all know that this was the most celebrated, most covered case in the history of American jurisprudence. All across this great country of ours, people knew all about the case, and in all kinds of detail. One of the things that came up early on in the case was this question of Bruno Magli shoes, these $300 designer shoes. Did Mr. Simpson wear them? Did he ever own a pair? Was he ever seen with a pair? You heard agent Bodziak talk about a search that was national and international scope for any evidence whatsoever that Mr. Simpson ever owned, or ever wore, or was ever seen with these shoes. The countryside was scoured for any evidence: Receipts, photographs, anything. Nothing was found during the criminal trial, prior to the criminal trial. Nothing. Not one sales person was located who could say that they sold my client, one of the most well-known, highly visible people, probably in the United States, maybe in the world, could not say that they sold him these shoes. Now, think about that, ladies and gentlemen. Common sense. Remember, we put some witnesses on in this case that saw Mr. Simpson at the airport; they saw him in the hotel; they saw him on the plane. They'll never forget that. Think about your own experiences in life when you've seen somebody who's really famous. Think about it. You remember. You think back and you remember. Where's the salesperson? Where's the person that sold these shoes to Mr. Simpson? Why wasn't all the resources of the LAPD, the FBI -- why weren't they able to locate this person? Why didn't this person come forward? I'll tell you why: Because he never bought a pair; he never owned a pair. Scull. He's a photographer. Takes photographs all the time at Bills' games. Why didn't he come forward? Why didn't he come forward? Why didn't he tell the police? Why didn't he come forward for the prosecution? Why did he wait? Why did he wait till he gets a hold of this guy MacElroy? Why did he wait? What's that about? How come these photographs don't really surface until March of 1996, basically two years after the murders, after the criminal trial is over? How come they don't emerge until then? And how come, when they emerge, they emerge in the National Enquirer? Why is that? Why is that? There's a reason for that. Money. Dough. There's money to be made in those photographs; that's what it's all about. Remember what Scull told you in his deposition about the history of these photographs and the history of the negatives? But one thing you didn't hear from the FBI, Agent Richards -- or former FBI agent, anything about the history of those photographs, anything, anything about the history of these photographs. Why? You call that tunnel vision. He did not want to look outside what he could see with his head loupe on. What did Scull tell us? He said, oh, I took the photographs; I remember I sent them off to the Pro Football Weekly about a week after they were taken. Okay. Where's the guy -- where's anyone from Pro Football Weekly that confirms that? Where are they? Where's the photograph that was sent to Pro Football Weekly? Where is it? He mentioned a guy named Peters, if I'm not mistaken, some kind of pro football editor from Pro Football Weekly. Where is he? Did they bring him into this courtroom to say yeah, I remember; here's the photograph? No. Why not? Why not? Scull tells us in his -- in his deposition, well, you know, I didn't -- I didn't try to hawk these for the first time in March of 1996; my guy, MacElroy -- I tried to sell them in June of 1995, in the middle of the criminal trial. Newsweek, Time. What happened with that? What about, did Scull tell you they weren't newsworthy? Really. He tells you, oh, yeah, Time and Newsweek were "O.J.'d out." There might be a couple of people in this courtroom that might be able to tell you something different about that, O.J.-d out. We hear that echoed again when Flammer got on the stand, same words: "O.J.-d out." I can't imagine that Time, Newsweek or any other legitimate media could have possibly been O.J.-d out at this time. Do you think -- do you think that Scull didn't know that they were looking for photographs of OJ Simpson, desperately looking for photographs that might show him in any kind of footwear? Do you think he didn't know that? No, he doesn't send it to the prosecution, doesn't talk to the police about it. Talks to MacElroy, though. Hey, where's MacElroy? Where is he? Did he come to this courtroom and did he tell you what he did with the negatives? Did he tell you why he had to send the Scull negatives, as Harry Scull tells you in his deposition, to London and back from Paris, or whatever, on the Concord? Why did he did he have to do that? Why didn't Agent Richards want to talk to him? Why wasn't he -- why didn't he interview him? Did do you think that if these photographs showed Agent Richards' son or brother and -- somehow committing a crime, or were inculpatory -- they were evidence that this was used in a murder trial -- do you think he might want to talk to MacElroy? Do you think he might want to talk to the guy who had access to and control of the negatives, to find out what he did with them? I don't know. I think so. He didn't come into this courtroom. Now, Flammer. Two and a half years later, after the big buzz in Buffalo about the Scull photo in March of '96, no, that doesn't -- that didn't pique his memory. He didn't remember then. Gee, I have those kind of photographs and Scull made a few bucks, maybe I should look into selling it, maybe I should look around, look for my negatives. I've taken a lot of photographs of OJ Simpson. It was all over the TV up there, it was all over the newspapers when Scull's deposition was taken in this case. Flammer: No, I don't know anything about that. Didn't put 2 and 2 together. Gee, here comes MacElroy. Now, 2 and 2 gets put together. Now, 2 and 2 is put together. When does that happen? After our expert, Robert Groden, takes the stand. Why? Why is that? Why do these 30 photographs all of the sudden show up, and Flammer is all of the sudden somehow miraculously reminded that he has these incriminating photographs? Why does that happen through the agency, through the help of MacElroy, after Mr. Groden gets on the stand and talked to you about these photographs. Why? Think about it. Common sense. Would you forget about it? Flammer didn't tell you he was OJ'ed out. He said, oh, I was fine, I was aware -- I was aware of it. Money makes the world go around. Money spins the globe. People kill each other over money. Countries get into wars over money. You heard Richards. If you have enough money, if you have the time, and God knows they had the time, if you had the connection, the right person, and you had access to the equipment -- I wonder what kind of equipment there was in London -- you can fake any photograph so that no expert can decipher whether it's been altered or not. Do you think that happened here? Do you think that renting the photographs for $1800 a week was enough motivation? Do you think that -- does that satisfy you? Is that proof -- absolute proof? Is it -- you know, Richards got up here -- and Mr. Gelblum also had a lot of fun with Mr. Groden. Doesn't have a -- he has a high school diploma, but, you know, he had to drop out. Mr. Gelblum points out -- this is very relevant -- points out that he was -- he was released early from the military. Why? He got beat up by a sergeant in an anti-Semetic incident. Mr. Gelblum also tries to suggest to you, gee, he didn't have enough experience in this, this is the first time he's ever testified as an expert in altered -- in whether or not photographs are altered. Oh, he's had a couple of strokes, too. That's important. Well, do you remember when I cross-examined Agent Richards, Bill Bodziak's friend? Do you remember? When you were on direct examination, Agent Richards, were you trying to let the jury think that this examination of photographs to see whether they're altered, that's something you do a lot, that's something you testify to a lot? Oh, no, no. No, I wasn't letting them try -- I didn't want the jury to think that. Well, well, well. By the way, how many times have you testified in a court of law on that subject, whether or not a photograph is altered? This is my first time. Really? Okay. Mr. Gelblum thought that was pretty strange when it came to Mr. Groden. Oh, and let me ask you this, Agent Richards, how often in your career with the FBI would you actually look at photographs, not to see what's in there, not to look at -- for the CIA at -- spy satellite photographs to see whether you could figure out whether it was a certain kind of truck or a tank, but how often in your career did you look at photographs to determine whether they were fake? Oh, maybe two or three times a year. Really? So maybe 50 times in your whole career? Yeah. Didn't tell you that on direct examination. Oh, and Agent Richards on cross-examination, not on direct examination, Agent Richards --
Excuse me. Mr. Richards. Former agent. Mr. Richards, how often in your career have you undertaken a full analysis like the one you did in this case, not when you have a copy of a photograph or a -- or a print, a single print, but you have access to the contact sheets and to the negatives? How often? Maybe once every three or four years. When's the last time you did it? I don't know, maybe three years -- I can't really remember. Maybe three years ago. Now, contrast that with Mr. Groden. Yeah, they had a lot of fun with Mr. Groden, basically because of the position he's taken with regard to the assassination of John Kennedy. Yeah, sure, he'd like to be making a lot more dough, he'd like to be in the position that Agent -- Richards was. Does that make a difference? Does that really make a difference to you? Aren't you going to decide this on common sense? What you can see. What you heard. But you know, he's got something that Mr. Richards doesn't have, and that is experience, actually making these kind of composite negatives. You heard him describe that to you. Richards didn't do that. Richards spent 99 percent of his time, as he testified to, as he admitted, looking at questioned documents and also analyzing photographs to see what's in them, without any view towards determining whether they were fake or not. Then what did he tell you in the end? He said this is not an absolute science, looking at photographs. He said that it's subjective. He said that the examiners can differ as to what they see in their interpretation. And he said something else that was interesting. He said with regard to the Scull photograph, when he was first up on the stand, he said I'm a hundred percent sure, I'm a hundred percent sure that that photograph is not fake. But remember when he got up with regard to the Flammer photographs? What did he say? No, I can't be 100 percent sure. Why? Why did he change his mind? Why? You heard my learned brother, Mr. Blasier, talk about science and you know true science, you can never say something to an absolute certainty. Why did he feel compelled to tell you with regard to the Scull photograph that he was 100 percent certain? Why? Was he trying to impress you? Was he trying to fool you? Was he trying to overstate the case? Well, if you can really tell -- if you can't really tell that somebody does a very good job and they have the right equipment, then how can he tell you anything, ladies and gentlemen? How can he tell you anything? How can he possibly tell you that he's 100 percent sure? And how can he tell you that when he hasn't even bothered and he hasn't been presented with the history of this negative. When MacElroy has been hidden even from him, as he was hidden from you. How can he say that? Where's MacElroy? Now, Richards -- Mr. Richards said, oh, no, everything that Mr. Groden told you, that's all wrong, everything's wrong, everything. Yeah, that could -- that's a scratch. Do you remember the continuous scratch? That's not an edge mark, no, no. Examiners can differ. It's subjective. I don't have any bias. But no, that's a continuous scratch. That's not an edge. And yeah, that first negative may be out of line a little bit, but that's -- that's the natural movement. It could be the movement of the film within the camera. Yeah, it's subjective, but that's my opinion. I'm not biased. Phil, can you put the scratch photograph up. (Photo is displayed on Elmo.)
Oh. I knew it was you. I should have figured. Okay. Do you remember what Mr. -- what Mr. Agent Richards told you about what he's calling a scratch here? He said, oh, that's not a problem, that's caused by the movement of the film in the camera. Do you remember that? And then he --
Strike that. Do you remember that Mr. Richards said in his opinion this scratch was caused when the film passed over -- when it moved in the camera, passed over a little burr? Do you remember that? And he said -- this is all in direct examination. He said that's completely innocent, that doesn't mean anything. And then I asked him on cross-examination -- wait a minute. Oh, and then he said, of course, in addition to that, he said you know when this -- if this thing's out of line, which obviously you can clearly see here, using the scratch as a reference point, you can see how far out of line the first frame is. If that's out of line, that's just because as the -- as the film moved through the camera or as it was snapped it would shift. Well, if the film is shifting or the -- or the frame is shifting, where's the shift there? Why isn't the scratch moving? Why isn't there a little jig in the scratch? Why? You can take that down (indicating to Elmo.) He told you that what Mr. Groden thought might be an edge mark on the bottom of the first negative, the negative in question, oh, that's an image of the football field. Did you take a good look at that? Did you see how, if -- if that -- and this is on direct examination. The camera was down, the camera was down when that film was taken. How does he know? He didn't even bother to ask Scull about that. How did he know? Let's assume he's correct. Camera's facing down when that picture is snapped. Take a look at it when you're back in that -- and deliberating. You'd have to -- how high in the air would you have to be to create that image? Think about it. Looking down, the camera's down, but of course when I caught him on that in his -- in the cross-examination, then he started to talk about how, you know, maybe it was up like this, I don't know. He doesn't know. Never talked to Scull about it. Didn't bother to do that. This was interesting, too. I asked him -- well, you know what Mr. Groden told you. He said, you know, if it is a scratch, that really doesn't make a difference. First of all, it illustrates his point of how the first frame is out of line, but that really doesn't make a difference, because if you're smart and you fake a photograph and you're trying to cover your tracks, you're going to use the same camera to create the false negative or the duplicate negative and you're going to snap it right through. He explained that to you. Well, I asked Richards, gee, isn't that true. I'm thinking this guy's not going to fight me about that. That seems like that's a pretty common sense thing. No, I have never heard of that technique before. Well, that doesn't surprise me. Two or three times a year did this kind of work, hardly ever looked at negatives. Oh, yeah. And if you're going to use the same camera, what did Groden tell you to do with it? Get rid of it. Get rid of the evidence. You can't match it up. Get rid of it. And what did Scull tell you in his deposition? Gee, I have lost that camera, I lost it -- I mean -- excuse me -- it was stolen. That camera was stolen. Can't look at the camera. Sounds like a pretty good idea. Money. Money makes people do a lot of things. We all know that. Can you put the close-up of the shoe? (Photographs of shoe displayed.)
Another interesting point. One of the few things that, despite all my skills, I tried to use, I could not get out of Mr. Richards: You see this right here (indicating)? See how you could see the pattern of the sole there (indicating)? See this reflection here (indicating)? Now, there was a fight about whether it should be white or red. Mr. Groden said it should be white, and it shouldn't be red like that. And Mr. Richards said, no; no, in my opinion, my subjective opinion, that's okay; it can be -- it can be red. But look at this (indicating) take a look at it when you're back in the deliberation room. This clearly extends beyond the sole (indicating). And that shouldn't be. But more importantly, see the sole pattern pretty well, and gee, that's pretty convenient. Because as Agent Bodziak testified, that's how you make this shoe. That's how you identify this shoe as making the footprint at Bundy. Pretty distinctive sole pattern, he said. Remember that? Mr. Petrocelli said it's like fingerprints. Gee, that's -- that's really, really convenient. That's great. Got a photograph of Mr. Simpson striding across a field, a photograph that never appeared before; and lo and behold, you can see the pattern on the bottom of the sole. What could be better than 30 more photographs later on? What could be better? Remember what I asked Mr. Richards? Did you look at all the other photographs that Scull took, the contact sheet? Can you -- could you see the bottom of the sole? Can you see any pattern? Oh, yeah, I looked at that. No, you really couldn't. There was one you could see a little bit. Yeah, you could see a little bit, but nothing like this (indicating), this (indicating), this (indicating), this (indicating). No. Hum? Boy. If you were going to -- if you were going to take care of this photograph and make it right, you'd work on that part first, wouldn't you? Sure. Oh. And yeah, Bodziak came in and said, my God, this is definitely a Bruno Magli. Hello. I mean, what would you -- if you're doctoring a photograph and this is the issue in the case, you better believe he'd use a Bruno Magli. And that goes to the Flammer photos, too. That was really -- that was a great point. I also want to you take a look at another thing here. Take a look at the heel of that shoe. Take a look at the position of the heel. Now, agent -- excuse me -- Mr. Richards -- we went back and forth a little bit, though, but he basically agreed that that's -- that heel, it's pretty much flat on the surface. He said, ah, there might be a little bit right there. That -- and that -- he said he takes into account physiology and things like that and what he knows about anatomy. But he said, I'm no human factors expert. I remember he -- I believe he said that. Think about that. Think about your own experience when you're walking. Think about it. Do you think that, as you're striding along, that with your heel flat on the ground like that, that the shoe is going to be -- the toe is going to be up in that position, and twisted -- very conveniently twisted over, "cocked," as Mr. Richards said, towards the camera? Think about it. Take it down (indicating to Elmo). Now, Richards goes up to Buffalo on the 7th of January. A miracle occurs: The Flammer photographs come forward. And what -- what did he say, two minutes? Two minutes. A negative, a print, looking at it. Comes back, clean bill of health. Well, that didn't surprise me. Maybe they got it right this time. Maybe they didn't leave behind any evidence. He told you. Again. Do you -- you do if you have the motivation. What could motivate more than dough? And you have the time and you have the connection, MacElroy. Where's MacElroy? And you have the equipment: You can make a photograph or 30 photographs that nobody can tell. Now, but Mr. Petrocelli had an answer for that. He said, well, wait a minute. This photograph was used in a newspaper in -- wherever it was -- shortly after this photo was taken. One of these photographs was used in the Buffalo Bills newsletter, something like that. Yeah. That's a good point. But remember what I -- when I asked Richards, did they show you the black-and-white print that was supposedly used, the actual black-and-white print? No, he wasn't shown that. What he was shown -- and by the way, half of what he got, he had to get from MacElroy. What he was shown was what was purporting to the original negatives -- and God knows what McCelroy did with them -- and color prints. He was never shown the black-and-white print that was actually used in the newspaper, nor did he look, did he analyze the newspaper photograph. Nor did Bodziak do that. Why? Why weren't they shown that? Why didn't they look at that? Tunnel vision. You can get that board. Never mind; I'll get it. I have -- I've been doing it all day, might as well do it now.
Okay. You remember this, right, Mr. Gelblum? Very nice. That one-by-one he knocked out, remember? He was telling you that he had knocked out all these points that Mr. Groden had made, and he did that to Mr. Richards. (Indicating to chart with items crossed off.) I would suggest to you that there's another very important factor here, and that would be factor 13, which Richards didn't talk about. Right there. Factor 13.
Rather than learning how to measure better, we're just going to say, let's give ourselves a plus or minus two and a half percent slop factor, to call something a match.
The FBI Caucasian data base is made up of 200 white FBI agents. From that they extrapolate to every Caucasian in the world.
we did not. On that slot blot test, we're not detecting any DNA at all.
When I found out I was wrong I changed my story.
We're going to say there's a dot there, even though we admit there's no dot there; it probably disappeared. But we're going to call it anyway, because it's consistent with our theory.