My objection, your Honor, is as this Court well knows, a set of documents in the blue notebook were turned over to the Defense that purported to be the originals of the crime scene checklist. These were documents that Mr. Goldberg produced for us first at the lab and then they were produced for your Honor, then they were produced for our document examiner. They all purport to be the originals. They were examined and we have been told all the way along the line that this was the original.
That is a discovery violation and if--and you know, frankly, I haven't looked at it, I don't know what it is, I don't know--and Miss Clark is--I don't think she should be doing that in front of the jury.
I would sure like to look at them, but I think the problem is, your Honor, is that when they hand over a whole series of documents in one predicated scientific analysis in on cross-examination and everything else on those documents and they hold back documents, after repeated requests for the originals, I have no idea what this is, but I certainly don't want to commit--I will be put in the position of committing something in cross-examination to a certain position without these documents and that was unfair. Now my credibility is at issue with this jury, and the only reason that came about is because of the Prosecution's discovery violation itself. Certainly they were on more than adequate notice that we were very concerned with the originals and tampering with documents and this is very unfair.
Well, this is what I think counsel refers to as an attempt to achieve a Perry Mason moment where he wants to spring something on the witness that they didn't disclose to us which he is entitled to do that in this instance. Did you want me to respond? You seem to be looking at the documents.
KEY QUOTEWhat they did when they wanted another document that wasn't original where we have given them a copy is they said produce the original, which was obviously a Xerox copy, and we looked for it and we had trouble looking for it eventually and we found it and produced it.
This is also a Xerox copy of the no. 4 that they introduced into evidence. They could have done the same thing and said the one that you gave us can't be the original, said we looked at the staple holes and it is obviously not the original, it is obviously a Xerox copy, doesn't look anything like these documents and can you find them with me and I would have done the same thing I did with the other document, called Mr. Matheson, "Greg, hunt this down, find it." They never did that.
They have been hoisted on their own pitard and they tried to do something for dramatic effect, it seemed to work for a few moments, but as a result of holding back they have produced a situation on their own.
KEY QUOTEThey have made representations and predicating it on a line of cross-examination to the jury that isn't true. That is not my fault. Maybe it is not counsel's fault either. It is both sides--you know, it is the Defense playing a tactical game that they are entitled to play, but they lost.
No, your Honor. Mr. Goldberg misstates one part of the record, and that is--that is, there was one document, the one that is undated, that the District Attorney's office told us was not an original and we are continually asking them to produce the original and they didn't produce the original until yesterday.
So we were told all the documents at the crime scene checklist were the originals except for that one document. That is absolutely clear here and I'm sure your Honor recalls it.
We will have to bring Mr. Yochelson down here and Mr. Hodgman. There is absolutely no question that the document that we have, page l-15, they represented to me was not an original, they knew it was not an original because it had a lab number on it, and it was not produced until yesterday, and they continually maintain that all of these were the originals. And we had a document examiner come in and we looked at it and we asked them a number of times.
Made an offer of proof on this very fact. I brought to your Honor's attention that I thought this document was not an original because of the staple holes and when I examined it it was not an original, so now suddenly he produces an original and I have been put in a position where it looks as though I'm trying to deceive something to the jury and that is not what happened. If that is indeed the original, it is something that the Prosecution brought about and it seems to me that that is a discovery violation and what we the victim of it and we need relief from that.
All right. Well, given the hour, we are going to take our break at this point and then we will take this up at 8:30 tomorrow morning.
No. We will take up the argument. I think I know what I need to know. I am familiar.
If you need any witnesses, I was going to say we can tell them today if you want to get them.
Okay. Well, counsel, it is ten minutes to 6:00 and I told the Court reporters we would break at 5:50.
The same. They have already seen it. It is the same tape that they have shown, except it has the time on it and it is only three minutes.
This is what I think counsel refers to as an attempt to achieve a Perry Mason moment where he wants to spring something on the witness that they didn't disclose to us.
They have been hoisted on their own pitard and they tried to do something for dramatic effect, it seemed to work for a few moments, but as a result of holding back they have produced a situation on their own.
I have been put in a position where it looks as though I'm trying to deceive something to the jury and that is not what happened. If that is indeed the original, it is something that the Prosecution brought about.
Now my credibility is at issue with this jury, and the only reason that came about is because of the Prosecution's discovery violation itself.