Back on the record in the Simpson matter. All the parties are present. The jury is not present. And we need to resolve a few issues regarding discovery, et cetera, et cetera. Regarding the page 4 of the evidence collection checklist.
Your Honor, I would like to make this argument by giving the Prosecution every benefit of the doubt in the assumptions that one makes and even when one does that, I think the record--oh, yes. Mr. Fung I think should leave, your Honor.
Thank you, your Honor. And even if one gives every reasonable assumption to the Prosecution in terms of this course of conduct, I don't think that there is any question but what happened here was a deliberate and intentional misconduct on the part of the Prosecution. In making this argument and in drafting a proposed instruction to the jury, I intend to follow very carefully this Court's decision with respect to the videotapes in the Rosa Lopez matter. In this Court's decision with respect to failure to disclose certain matters of discovery, the first factor that the Court began to look at was the history of discovery proceedings up to this point.
Umm, and--umm, first other--other factors, other problems that have arisen, and I would note for the Court that there have been quite a few problems with respect to the discovery on evidence collection. Umm, first there is the matter that the Court still has under submission of the failure to disclose the videotape of Mr. Simpson's residence, which has some very material information in it. In particular, the time in which the tape was taken and the very suspicious absence of the socks as the camera pans Mr. Simpson's bedroom and what the Prosecution is saying about 4:14. More disturbing still is that the Prosecution indicated that they had turned over to us the serology room transaction cards which would indicate who went in and out of evidence processing room, transaction card sheet, indicating who would go in and out of the evidence processing room on the morning of June 14th.
Mr. Goldberg turned over these printouts of the evidence processing room, and to give him every benefit of the doubt, what he has told us is, is that he turned over what he had, which did not include the times of the early morning, it only started I think around 9:40, but it didn't include the early morning, and he indicates that in terms of what he had, he didn't have it either, all right, and he didn't give us a complete set. That is what he says. Let's just take it as he says it. Nonetheless, we didn't get it. We eventually got it during cross-examination in the middle of the cross-examination of Mr. Fung, but that happened. Then there are other disturbing problems with respect to our access to this evidence and that is that with respect, for example, to the hairs and fibers from the hat found at Rockingham, a bindle was created by Dr. Lee of hairs and fibers that was removed in Albany.
I understand that. I'm saying the state of the record, trying to be as objective as possible for what I think is the background for the real egregious problem here.
You are citing something for me that there is no factual determinations that that did or did not happen. We are aware of the LAPD video that was turned over in alike manner. I am aware of the access card records, but this other stuff I am not familiar with. I have heard it. It is not in the record.
Well, I think it is in the record in terms of--and I don't think there will be any dispute that what has happened here is that the--and Mr. Yochelson is still searching for it and we have been talking about it and they are searching for it, but the fact of the matter is that these hairs and fibers were taken off the hat, a bindle was created, it was photographed back at the crime lab and they haven't found it yet. There is again the matter of the lens and the description even is at this point unaccounted for. The reason I raise this, your Honor, is that the difficulty that I have here, and I think it fits into one of the factors that the Court considered on the discovery sanction, and if I may quote you, is that what you are looking for in terms of these discovery sanctions is that we have to assume that on important issues that an absolute bare minimum of professional competence would require that the lawyer preparing to present testimony of witnesses confirm and inventory of record, statements, notes, et cetera.
All I am saying here, your Honor, is that I think there is a clear pattern in the discovery is what has been going on is that the Prosecution is far more concerned in what they think the Defense is going to find than they are in ensuring that they are really turning over to us all the evidence in an accurate and complete form. And that the fact of the matter is, is that I will proffer to the Court what has been going on, as the Court is well aware, is that we go to the laboratory and we have visits and we try to examine documents in evidence and everybody sits there and they take notes about exactly what we are looking at and exactly what we are thinking.
Well, Mr. Scheck, what I'm really interested in, though, are the facts and circumstances that surround page 4.
I understand. I think that is a necessary backdrop because it is a factor that the Court has considered. Umm--with respect to page 4, I think that this is a clear statement of the record. We went and visited the LAPD laboratory and asked to examine the original notes of the crime scene checklists at Rockingham and Bundy and everything that was filled out by Miss Mazzola and Mr. Fung. That was delivered to us at the SID laboratory in the presence of Mr. Goldberg by Greg Matheson and they gave us a book that purported to be originals. There are two laboratory notes that were taken by I believe Mr. Matheson at this time, that actually document this and document how Mr. Neufeld was looking at the original notes of Fung and Mazzola and we went and asked if we could copy them and how I was looking at the field notes while Mr. Neufeld was checking his notes. There are records of them watching us looking at these documents with great care. I'm sure Mr. Goldberg will not dispute that at that evidence lab, when I looked at those original documents, obviously I was very concerned because I thought that--I asked Dr. Lee to come over and look at it. I thought that I found a discrepancy in terms of the originals. I asked Mr. Goldberg if we could copy--
I asked Mr. Goldberg if we could make a copy of the originals. He was reluctant to do so. He didn't want to make a copy of the originals right there in the lab. I then appealed to Mr. Yochelson and Mr. Yochelson agreed and a copy of those originals was then turned over to the Defense. Subsequently, as the Court is well aware, we made a specific request, a written request, to have all the original documents from the checklists examined by a document examiner. Umm, the District Attorney's office balked and asked that I make an offer of proof or they contested our right to have a document examiner look at the original documents, what they were telling us were the original documents. As the Court I'm sure recalls, I made an ex parte offer to the Court and in that ex parte offer I explained to the Court very clearly what I thought the problems were, that I had seen this erasure with respect to somebody going back over the documents on July 4th, that we didn't see any staple holes.
That we did not see any staple holes on page 4 of the Rockingham checklist and believed that that was not an original and I wanted to have an expert examine that and the other documents. And I explained to the Court at that time that it was our contention in this case that we did not believe that Mr. Fung had ever received Mr. Simpson's blood vial on the afternoon of June 13th, but in fact had received it in the morning. I further pointed out to the Court the written documentation on--where Miss Mazzola had indicated that the blood vial had been received after the sneakers. I further pointed out to the Court her testimony at the split hearing, which your Honor heard, in which she indicated that she had no--did not recall essentially seeing, umm, Mr. Fung receive this blood sample from Detective Vannatter on June 13th. So the document examination occurred and we were operating on the assumption, because it was a representation by the Prosecutors, that the documents we were looking at were originals.
I don't think there is any question, the Prosecution concedes now, that that was a false representation. We were not looking at originals, that in fact page 4 they are claiming was not the original. And it was perfectly plain, I think after document examination, that that page 4 was not the original and we relied upon that representation. During the Court of Mr. Fung's testimony he made representations and it was our understanding, from looking at the manual, that all original documents are supposed to be kept in one place within the laboratory and that, umm, they are collected there for purposes of review by supervisors and he agreed that that was true and that the documents that had been segregated were the originals. Then there was another document, umm, that I would like to get the exact--it was first introduced by the Prosecution, and that was a document that had an "L" number on it and it referred to--it was undated, it was written on a field report note--
L-16, and there was a specific Prosecution number. I can't recall what the number was, but it was used with Mr. Fung on direct examination. Mr. Yochelson, Mr. Hodgman and Mr. Goldberg represented to us that they had not yet found the original of that lab sheet, so on direct examination an original was not used, an original had not yet been located. The day before--I guess it was the day before yesterday, maybe Mr. Goldberg knows it better than I do, but I think it was the day before yesterday, which would make it Wednesday, Mr. Goldberg turned over the original. They had found the original. Presumably, I take it from what they are saying, that they found the original in Mr. Fung's own notebook. That I would submit, your Honor, should have put them on notice that perhaps they had not turned over all the originals to us as they had represented they had done, and it was a representation obviously that we were relying upon and relying--relying upon heavily in terms of framing a final line of cross-examination. So I would say at this point, in terms of the Court's discovery analysis, that certainly we have a false representation and the question is whether it was inadvertent neglect or gross neglect.
I would submit at this point we can at least assume it is gross neglect and let us assume that it was not knowledgeable or intentional up to this point. In other words, when I was cross-examining Mr. Fung yesterday, even after they realized that there might be some originals in his notebook and some of the documents they gave us were not originals, let us assume that they did not know and they were not intentionally trying to set us up in terms of the cross-examination. All right. It is just a gross neglect at this point. However, what happened afterwards clearly is intentional misconduct. This was an important witness, and the issue here was a critical one, whether or not this blood vial was turned over. We all know that we are about to broach the issue in opening that about a quarter of Mr. Simpson's blood sample is unaccounted for by--based on the records that we had been given up through the opening statement and we opened on it and we think that that is an extraordinarily serious issue in terms of tampering with evidence. It goes to the heart of this case.
Mr. Fung had been impeached on many points that I think it is fair to say have damaged his credibility in terms of other important pieces of evidence; the Bundy glove, the movement of those which he can't account for, an envelope where he was, you know, taking it with his bare hand where that was caught on videotape. But then of course the most important fact of all is that during the examination yesterday, and I must say that the Court extended every possible courtesy to the Prosecution in terms of allowing them to look at these videotapes, you handled it very, very carefully trying to prevent--
Well, trying to prevent any unfair surprise. I mean, they were given all the videotapes. The only thing that I was reluctant to reveal to them openly or in an offer of proof to you is that by looking at the cars we had ascertained from Mr. Fung's testimony that he had carried a blood vial out in the brown bags, the posse box or in his own hands, was false. Umm, but in terms of giving them the real evidence, they had it, they had an hour to look at it, they had a long time to think about it. The Court conducted the examination outside the presence of the jury. It was done by the book. What happened here, however, your Honor, is that at some point in time, before, before I finished my cross-examination, before I stood up after the break and said "No further questions," the Prosecution, if we take them at their word, went through Mr. Fung's book and discovered the original page 4. Given their representations that they had given us all the originals, the proper course of conduct at that point would have been to inform the Court and counsel that their prior representations have been false.
They purposely did not do that. Instead what they--what they tried to do was begin a redirect examination to rehabilitate Mr. Fung in an unfair way to try to rehabilitate his credibility on this critical issue of whether or not he got the blood vial on June 13, as opposed to the morning of June 14, and then they began to do that on redirect examination. I heard the first question about the one sheet that they had originally told us was not an original and they had found the original. That was fair enough. Then to my great surprise, I heard that second question and that is about page 4. Now, the real danger--this is intentional misconduct. They knew it, they had a break to think about it, they all sat here and discussed it; Mr. Harmon, Mr. Clarke, Mr. Goldberg and Miss Clark. They sat there and they discussed it and they thought about it and they thought wouldn't this be terrific, let's rehabilitate Mr. Fung, it will look like there was an innocent mistake and therefore all the other contradictions--contradictions caught on videotape, contradiction of his own testimony about this blood vial, would--they will then be able to argue was just an innocent mistake and he is telling the truth.
And that is how they began their rehabilitation of this witness, trying to exploit their own misconduct and their own misrepresentations. There is no question, giving them every benefit of the doubt, that that was deliberate, it was intentional and it was wrong. Now, this, I would submit to the Court, is far worse than anything that occurred with respect to withholding tapes on Rosa Lopez, because at least in that situation, first of all, I don't think that the Court made a finding of intentional misconduct. There was a basis in the record that it was as intentional as this because this was clearly deliberate, not to turn it over before I finished my cross-examination and then to try to use to it rehabilitate this witness' credibility. And it has a terrible effect because of the way that cross-examination ended and the jurors were looking at the documents. What they are trying to achieve here is the jury should forget all these other serious contradictions because of this point about page 4. Now, I am assuming here, I am assuming for the sake of argument that their claim is correct and this is in fact the original. Just assuming that. So this is true misconduct, it is intentional. It is worse than the Rosa Lopez situation because at least in that instance, before cross-examining Rosa Lopez, the Prosecution got an opportunity to listen to those tapes, to go out and interview witnesses, and the Court extended them absolutely every opportunity so that they could not be damaged by this. In truth there is no way to unring this bell.
It is quite startling to me, your Honor, at sidebar, when I raised this issue yesterday afternoon, Mr. Goldberg actually said, well, Mr. Scheck was trying to achieve a Perry Mason moment here. He was hoisted on his own pitard--he didn't say that, but words to that effect--and then he said, you know, what Mr. Scheck should have done here is come to me and said, hey, what about that page 4 that, you know, it is obviously not an original and I should have tried to straighten all that out with him. And then he cited the fact that they had told us that that other page from the lab book wasn't an original and then at the last moment turned over the original from Mr. Fung's notebook. That is fairly incredible. That shows that they seem to have no idea of the rules, because the fact of the matter is, is that they are the ones that were representing to us all the way along the line that we had a set of originals and they were not taking proper care to make sure those representations were accurate all the way through the point of cross-examination. And then it got fatally worse. After they knew that we had been misled and sandbagged by their false representations, they then intentionally willfully went out to try to rehabilitate Mr. Fung's credibility, which they are desperate to rehabilitate at this point on a critical issue, by intentionally trying to exploit their own false representations and they knew it and they did it. So your Honor, that is why I have drafted a discovery sanction.
Sorry. A discovery sanction destruction--instruction that mirrors I think in a total factual way almost word for word the instruction that you crafted with respect to the Rosa Lopez issue, and I think that this situation is far course. And that I frankly think that the only remedy that really would undue the damage here is, umm--is preclusion. That in truth is the only remedy. However, I recognize that the Court may very well be reluctant to grant that remedy, umm, and so I have proposed, umm, this alternative instruction because it seems to me that you must instruct this jury in no uncertain terms about the misconduct of these Prosecutors here, about what they did, because it is--and about their efforts to rehabilitate Mr. Fung's credibility, umm, improperly, intentionally, that there was a violation of the law. And my instruction mirrors precisely what you have previously issued.
I am outraged by counsel's representations and misrepresentations to this Court and I have tried to take three deep breaths in advance, your Honor, but I truly am outraged. And I'm sorry, but I would like to discuss some things that probably are not directly pertinent to the issues before in Court, because Mr. Scheck addressed them and I think that they can't go unanswered. First of all, I would like to set straight what happened on this question of the door entry issue, which is an entirely irrelevant point. They never requested those documents ever at any time. I never had any conversation with Mr. Scheck about them or any other member of the Defense team at any time. What happened on that issue is I asked those documents of Greg Matheson for the purposes of being able to try to reconstruct events that happened on the 14th, the 15th, the 16th and the evening of the 13th. I wanted them, and once I got them, I Xeroxed them and turned them over without request. Counsel never had any conversation with me about them thereafter. Now, what happened on that issue is Mr. Neufeld called Greg Matheson, he did not go through me, because they have a relationship with Mr. Matheson were they go to him directly, not even through the Prosecution, and Mr. Neufeld apparently told Mr. Matheson that one of the pages was missing and Mr. Matheson then caused that to be provided to them. But there was never any request, there was never any order for that item.
Now, as to the next issue that he raised, which is the bindle, we believe, based on my conversations with Allan, that that bindle is perhaps in the Court's custody, that has not yet been resolved. But I would also like to point out that the Prosecution cannot be blamed for any potential argument or any suggestion that perhaps the bindle that Mr. Lee created was lost, because when item no. 6 came back, the control on 6, from Albany, it came back with a hair in it that was not there when it left, so we know things happened to our evidence to change our alter the condition of that evidence in Albany by the Defense experts and we have photographic documentation of that. The next issue I would like to raise in terms of misstatements by counsel is we discovered the existence of the real page 4 after cross-examination had been concluded, after counsel had represented several times to your Honor, I can't remember whether it was on or off the record, that he was finished, that he had no further questions, and after I had requested a break and was given a break for the purposes of assembling my notes for redirect examination. That is the point in time and the first point in time that we discovered it.
And the way that I discovered it is because I knew that two other documents, one other document, perhaps two other documents, were found in a similar manner, that they were found in Mr. Fung's notebook, and that he had the original and that a copy was in the notebook that was supposed to contain the originals. I would like to also address this issue of the Xeroxing of the crime scene identification checklist, which I believe happened in early May. In early March, excuse me.
Mr. Goldberg, before you move on to that, let me ask you a question about this discovery of the real page 4. At that time do you believe you had an obligation, having now discovered that, knowing that the Defense had made a request for a document examiner to examine each one of the pages of the crime scene checklist and any time you have a document examiner examine something like that and the implications are obvious, don't you believe that you had an obligation, upon making that discovery, to immediately advise the Court and counsel?
I did not believe so, your Honor, and I would like to address that in more detail, if I may, and very extensively, but with the Court's permission, could I continue with the events that happened surrounding the Xeroxing of the crime scene identification?
Okay. As to the Xeroxing of the crime scene identification checklist, which actually Mr. Scheck and I did together, I would just like to set the record straight on that. They told us that the--told me, Mr. Scheck told me that his only reason for wanting to look at these originals, and I guess this must have been some kind of a subterfuge because they didn't want to let me know what the real intentions were, he told me that they had written on their copies and that they didn't have any copies that were free of notations and that they were kind of embarrassed about this, but were asking me to extend them the courtesy of Xeroxing those items, which I did not want to do, because I have represented to the Court my Xeroxing skills are not the best, and it took us approximately forty minutes to go through those documents, Mr. Scheck and I, and Xerox them, which I did, as a matter of professional courtesy. What happened after that, after we were finished Xeroxing virtually all of the documents, is Mr. Scheck, who should win the prize of having Xeroxing skills that are even worse than my own, dumped out the entire volume of that original notes binder and it was standing in a teepee fashion on the floor after we had gone through it, and it took us about five minutes to figure out how to undue that problem without getting the notes all out of order.
And at that point Mr. Scheck, well, several--about an hour or so later, asked me then to Xerox more documents pertaining to searches of vehicles, and naturally I wasn't very eager to Xerox more documents at that time, and I said I don't want to do it at that time. We called--we resolved that issue and then finally I decided that I would provide them with Xeroxes. But I would just like the record to be straight as to the chronology of events as to what happened during that incident. Now, your Honor, I would like to address this issue of item number--page no. 4 and the original versus the copy. First of all, I would like to discuss it legally, which is something that Mr. Scheck didn't do. He made a lot of allegations, but he doesn't discuss the law, and I would ask the Court to go back to the law, because ultimately this is a legal decision.
1054 of the penal code doesn't say anything about us providing an original document. It is not in there. The constitution of the United States requires us to provide exculpatory evidence. What is page no. 4 is in front of your Honor, I believe. It is a Xerox copy of a form. It doesn't have any writing on it. It doesn't have anything which would put any Prosecutor or Defense attorney, in my opinion, on notice that it is in any way relevant to this case, let alone exculpatory. So where is the legal obligation in any statute, in any case, in the penal code, under the United States constitution, for us to have disclosed that document to begin with? It was disclosed and we allowed them to Xerox and inspect them as a matter of professional courtesy. What happened, your Honor, is that when they inspected these documents they came to the conclusion--and I never looked at all of them and lined up the holes on the paper clips or the little holes at the top of the documents and I never examined them with that degree of care.
Have you examined the little--since you are such an expert at Xeroxing, have you examined all the little holes that represent staple holes on that--appear on Xerox copies?
I see that there are staple holes on the Xerox copies, your Honor. I noticed that this morning. And I did not go through them with the degree of care to realize that the staple holes on the Xerox copies are Xeroxed and not actual holes, and I wouldn't have even thought of doing that and as an advocate, quite frankly. I would not have thought of predicating a conspiracy theory based upon the existence or nonexistence of staple holes on page 4. So no, I did not look at it, and I don't believe that Mr. Hodgman looked at it and I don't believe that Mr. Allan Yochelson looked at it with that degree of care, and we would not have and I do not believe that we could have reasonably been asked to. Now, what happened is that after these documents were provided, counsel notified us that two documents were not originals; one was l-16--may I just refer to my binder, your Honor?
Sorry, your Honor. One was l-16 which was the item that discusses on 6/14/94 certain items being released to Criminalist Yamauchi and the other item that they said was not an original, it was l-36--excuse me--l-31, which is the document that lists item numbers 20 through 35, most of them being stains that came out of the Bronco. They said it was not an original. And I believe that we ultimately found originals on both of those items and provided them to the Defense. They had a questioned document examiner look at them. They never notified us at any time or suggested to us that page no. 4 was not an original. Upon closer inspection of that document, your Honor, and especially with the aid of a questioned document examiner, it is obvious now to me that it does not have holes all the way through it and they knew that. And with the relationship that Mr. Neufeld has with Mr. Matheson, he could have done what he has done on at least two or three other occasions and gotten on the phone with him, or any of us, and said this is not an original and the search would have been on, as it was in the other two cases. He did not do that. Mr. Scheck did not do that and I'm not faulting for them, I am not telling you that they have any duty to do that, but they didn't. And they didn't do it for tactical reasons and they are entitled to make that decision.
And I don't know for sure whether I used the term hoisted on their own pitard last night, but I will use it now, because that is what happened. They decided that they were going to predicate a theory that Mr. Fung was involved in a conspiracy on the existence or nonexistence of staple holes and they didn't want to tell us about it and they didn't tell us about it and we never made any representation specifically that we knew that that document was an original of it, that we had inspected that document, and we never would have even thought of doing so. And then after doing it, we did what any Prosecutors would do in that circumstance, and think, where can the original be? And they know we would have done that as well. And it was in the same place that the other document was, where we provided the Defense with a copy instead of the original. And that is how we found it. Now, Mr. Scheck cited yesterday to the Court what I called the I-want-to-show-it rule of evidence when he was talking about wanting to show videotapes. Just say I want to show it and I say I didn't see that in the evidence code. But I would like to cite a lesser known provision of the penal code called the it-is-just-too-bad rule.
They made a tactical choice. If they were interested in the truth, if they were concerned about not proceeding on a theory that could be easily disproved, they knew how to do that, and on prior occasions they had used those vehicles and those avenues to try to clarify when they knew they had a copy instead of an original. They could have done it this time, but they didn't. And the Prosecution cannot be asked to pay the price for that tactical choice. It is a legitimate choice, I understand that they made it, but we cannot be asked to pay and should not be asked to pay. Now, I hate to get to the issue of sanctions, your Honor, because we are saying there is no discovery violation and we are saying that we did everything that a reasonably diligent Prosecutor would do and more in accommodating and overaccommodating the Defense. But you will recall that when the issue of sanctions came up yesterday, as to the Defense tapes that were not displayed, I said I can't ask for preclusion, I can't ask for an instruction, I can't ask for anything except some time to review the tapes.
Even though it was clear that counsel was grandstanding in the way that they had disclosed these tapes, because the sanction, if any, must fit the harm that has been done, if any, and the only harm that has been done here is that their tactical decision didn't work. And the remedy is nothing, it is to do nothing, and that is assuming there was a discovery violation, which we certainly don't concede.
And your question was did we have a duty to bring it to the Court's and counsel's attention as soon as we found it?
And we believe that we did not. We discussed it, and we felt that it was clear that they had made a tactical choice, it is clear that they could have brought it to our attention, it is clear that we were entitled to introduce this, it is clear that we had no obligation under the law to produce it, and at that time, at that hour, we believed we did not have an obligation.
Well, let me ask you this: Since I did make the order that the originals be produced for document examination, doesn't that include page 4 as soon as it is discovered?
Well, it was produced--I ordered it produced for the purpose of document examination by the Defense, though, so didn't that place an obligation upon the Prosecution to then produce that item?
Didn't that place upon you, at any point when you discovered that you had an original in your possession, to notify the Court, at least under 1054.7.
That's correct. In other words, if you felt you discovered something, that there was some question as to whether or not it should be turned over, then you have the right to ask the Court to make that determination ex parte.
But your Honor, that is true, we can have a--request an ex parte hearing whenever we feel we have information that we don't want to turn over, but we did want to turn this over. I mean, there is no question about that, that as soon as we found it, we wanted to turn it over, and we would love the Defense to have the opportunity to inspect it as much as they would like to inspect it and they will have the opportunity to do so, so we would not have requested an in camera hearing under 1054.7 to say to your Honor we want to hold this back, because that was not our intent. And what I would ask the Court is to think about also the Court's order that the Defense show us videotapes in advance, which has been repeatedly breached, and what sanction has been imposed? The sanction that has been imposed is that the Court has given us time, and we have been thankful for it, to look at those videotapes, because a lot of the times that is the only appropriate sanction that we can ask for and that is all that we have asked for. May I just have one moment, your Honor?
So what we would ask the Court to do is that if the Court is going to impose any sanction, that is the Court be evenhanded in the sanction that will be imposed, and we are not saying that any is warranted because we are not conceding that there is any discovery violation, to give the Defense more time to look as it, as the Court gave us more time to look at the videotapes. And the Court must be evenhanded and we request your Honor to do so and I know you want to do so in the way that the Court makes its rulings. And I think that, if anything, this is comparable but not--but in our case far less clear, because there was nothing that reasonably would have put us on notice. And I really feel a little bit reluctant to make this last argument, but in light of Mr. Scheck's argument, I don't think I have any other choice, and that is that when these items were being viewed by counsel, he said, well, we have notes of watching them view it, and so on, as if there was something improper. Actually what happened is I was in the room, it was actually the kitchen area and the library area of the Scientific Investigations Division, on a Saturday. You see, we opened up the laboratory for them on a Saturday so that they could be there, something that we do for every Defendant who is a trial.
And I was present when Mr. Scheck was viewing the notes and I was present because I wanted to make sure that nothing happened to alter or change the condition of our original notes, and that was one of the conditions that we felt that we wanted to put on them looking at them. I was sitting at the extreme other end of a table that was approximately the same size as both tables that are in your Honor's courtroom in what I describe as a library/kitchen area of the lab, because I did not want to look over their shoulders, and I felt that my mere presence would be a sufficient deterrent. But I don't know everything that happened and I wasn't watching them every moment when they looked at those notes. I don't think that would have been appropriate for me to have done. But if Mr. Scheck's Xeroxing skills are any indication of his ability to perhaps confuse documents, we don't know for sure what happened.
All right. Mr. Goldberg, I don't mean to cut you off, but I am really not interested in those activities.
And I would also like to point out, and as I said, I apologize and I apologize to counsel, but we have to sort out what happened here and how it happened, and there are a lot of facts that we just don't know, and that is all I'm pointing out to your Honor. And I apologize to Mr. Scheck, I apologize to you for bringing these facts out at all. And I would like to also point out that Mr. Scheck did have the notebook throughout the Court session, so trying to reconstruct how this item no. 4 happened isn't something that we could do with any degree of precision and certainty. And again, your Honor, I don't mean--I don't like this kind of advocacy and I'm not trying to cast any aspersions. All we are trying to say is that we can't reconstruct how that these events occurred.
Would you focus your comment on the obligation to disclose upon discovery. That is the only thing I am really interested in.
I understand. Your Honor, they just admitted it, didn't they? They said that they discussed it. They all sat there and discussed it and decided that they had no obligation. That is fairly extraordinary. Your Honor, Mr. Goldberg seems to think that when you issue a Court order to produce the original documents for us to look at with the document examiner, that he was just doing us a professional courtesy. That is a Court order to produce the originals. Representations were made that these were the originals. Then they got notice that there were some problems and perhaps some of the originals might have been in Mr. Fung's notebook and not produced to us. Now, let's be very clear about those facts. Mr. Hodgman and Mr. Yochelson said here are two documents that we know are not originals. The others that you are looking at are originals, these aren't, and we are still looking for them, and then they find them apparently in Mr. Fung's notebook.
And that is more than enough notice that maybe this is going on and maybe all the pages that they didn't give us in the first place were originals and that we are in a perilous situation where we may be relying on something that was not originals. And obviously they had an obligation to make sure that they were giving us what they claimed to be originals in the first instance, and anybody could have seen, from looking at those, if they had examined them carefully, that there were certainly an absence of staple holes. And incidentally, your Honor, in terms of the Xerox, there is also trash marks from the Xerox machines all over those pages, so I'm not sure it is entirely clear those are staple holes versus trash marks.
They were also Xerox trash marks and they don't necessarily accord with all the staple holes, but that is besides the point.
Well, your Honor, let's say that that is the original. Let's say that that is the original. The point here is that Mr. Fung has been severely impeached on exactly how the--
No, Mr. Scheck. The point is did the Prosecution have an obligation, upon discovering that they had it in their possession, to notify you and the Court that they had it.
Well, your Honor, there is no question that under 1054.1 they must disclose all relevant real evidence obtained as part of the investigation. We asked for the originals. The Court ordered them to turn over the originals. We examined the originals. Then they were on notice that they may not have given us all the originals. They took no steps. Then when they realized that they had misrepresented to us the fact that they had turned over all the originals and we had relied on it, and I had not yet stood up and said no further questions, because I didn't do that until after the break, they sat there and after they discussed it--
That's right. But it is clear, it is clear, but they sat there and they discussed it and they actually decided intentionally that they could go about rehabilitating the witness, because it would be helpful in order to make the jury think that all the other contradictions were just innocent mistakes, that they were going to do it even though they had represented to this Court and to counsel all the way along the line that these were originals that we had. They didn't bring it out so that perhaps I could try to undue this damage myself in some fashion with appropriate stipulations that I had been misled, because that is exactly what happened, and they did it intentionally. Your Honor, I know you don't want to hear these things, but I am trying to be as careful and as factual in the record as I can, because there is an implication in Mr. Goldberg's remark. I will readily admit to being a klutz. You have to hear this.
I'm sure it is interesting to hear, but it is not really relevant to the decision I have to make.
All right. It is just what he said wasn't accurate and I can prove it. The point is this: That everything that I have said in terms of giving them a reasonable benefit of the doubt, every factual innocence--every factual assumption--
--Mr. Goldberg indicated that upon discovering it, he discussed it with his co-counsel and there was a decision not to disclose it.
All right. The Court is concerned about this situation because I did order the production of these original documents, and I accept the representation that the initial production of what turns out to be a photocopy of the real page 4, that the failure to disclose that or to keep it with the originals, it was inadvertent. And in examining the two items, both the--what was originally--let's make sure I have the precise terminology here--the original page 4 that was disclosed as and purported to be an original and then the late discovered original--in examining the two forms, the Court finds that they are identical except for a poor Xeroxing of one of them, that there is no information contained, they're essentially blank forms, so as far as the content of the form itself, there is no Brady content here. Therefore the failure to disclose this is inadvertent and it is a no harm, no foul. The other issue, however, is the originality of the form itself. There was a discovery issue as to that. The Court did order its disclosure. I find that the failure to disclose both to the Court and to Defense counsel the discovery of the original document page 4 to have been intentional and should have been done prior to the conclusion of the cross-examination by Mr. Scheck. And the field notes are Defense exhibit 1107; is that correct?
Your Honor, could the Court perhaps look in the record to see whether Mr. Scheck said "No further questions" before we found it, because I'm told that that may be the case, that he actually formally said that.
I did examine the record yesterday. What he said was "After these two items, I have no further questions" and we were at that time exhibiting the documents to--
I know it, your Honor. I was there. We didn't find this until cross-examination was concluded, until he stood up before the Court.
Let me give you the Court's transcript from yesterday. See if you can find that language. But I recollect specifically checking myself.
The Court is speaking. "All right. Deputy Russell, would you return that document to Mr. Scheck. "All right. The record should reflect that each of the jurors has had an opportunity, including the alternates, has had the opportunity to review the Defense exhibit 1107. "MR. SCHECK: Yes, your Honor. I just would mark page 4 of this crime scene checklist 1107-b. "I have no further questions "THE COURT: All right." And then your Honor continues: "Ladies and gentlemen, I'm going to take a 15-minute break at this time" and so on.
If you recall, when you were making your request for a break between the cross-examination conclusion and the beginning of your redirect, I asked Mr. Scheck, "Do you have anything else" and he said something to the effect, "I thought I said no further questions" and my recollection is I heard him say, after these two things, "I will have no further questions."
Well, you see the problem is, your Honor, I don't know if that was recorded because--
That is the benefit of having the real time reporting, because I was anxious to see whether or not Mr. Scheck was really done.
Well, it must have been much earlier, if it occurred. Does your Honor recall whether this happened?
Page 22776 at line 21. "MR. SCHECK: Your Honor, I would like to do two more things and then I'm finished questioning this witness." That is the passage I'm referring to at 22776.
Your Honor, may I have the opportunity just to address this information, since we didn't have that when we argued first?
The reference that the Court just read happened, I believe, prior to the exhibits being shown the witness, item no. 4, page no. 4.
But it wasn't after he had concluded examining the witness, because I believe there was still examination on those exhibits, fairly extensive examination, as I recall, between then and the time that he said--
But I still don't understand the significance of that particular passage in light of the passage where Mr. Scheck did say on the record prior to the break that he had rested. I mean, that is the posture that we were in at that time. He had completed his examination.
No. I agree with you, that that particular passage of the transcript is not particularly elucidating one way or the other. The issue is once you discovered it did you have an obligation to discover it both to the Court and counsel?
After they had rested, if the Court is saying we had an obligation, then you have to go back legally to what our obligations are at that point.
All right. But at that particular moment in time he has already concluded his entire cross-examination. He has already said that Mr. Fung is conspiring based upon the non-existence of staple holes, so if we can try to back ourselves up to that moment in time, what is going to down up to that moment in time? Is it exculpatory to the Defendant if we say, your Honor, we have that piece of evidence?
What I'm trying to get at, your Honor, if we back up to that precise moment in time, what would have been done from then forward? Let's say we came up to the Court and said, "Your Honor, we have this document."
Well, if I have to agree to that in order to win. Your Honor, I just don't want to get into an argument over the Court with something if your Honor has already made up your mind on it. We discussed it, we felt that he had rested. We felt that there wasn't anything that could have been done at that point in order for the Defense to erase what they had done or that the Court would give them the opportunity. There wasn't anything that they could have learned by examining the documents more carefully. So if you back up to that moment in time, don't we have to try to articulate from that point forward what would have been done had we come up to the Court and said, your Honor, we found this item of evidence? Would the Court have allowed him to reopen? And then if we reopened, what would he have done? Questions--
But then if the Defense is asking for a sanction, don't they have to show where the harm is? In order to articulate the harm, don't we have to back ourselves up to that precise moment in time and run forward and try to replay what would have occurred had it been done differently by the Prosecution?
Well, don't you think he has just sort of been embarrassed, that it set up a scenario where they accuse Mr. Fung of having destroyed an important document that might document certain important dates and times, and left that impression with the jury, which is totally empty if this is the real page 4?
I don't know whether they are embarrassed or not, because they have come up with so many other things that they have tried to use to shoot down our case that have been very easily disproved and dispatched. But your Honor, the point that I made is that it is a tactical choice and are we accountable for the tactical choice.
I would ask the Court to make a finding as to whether or not the Defense engaged in a tactical choice here.
But counsel, here is the problem: I ordered its production. That is the foundation for all of this discussion. I ordered its production. It wasn't produced. It should have been.
Your Honor, Mr. Cochran is continually talking and making comments to me off the record.
Your Honor, Mr. Hodgman is here to address the discovery order that was made by the Court concerning the originals. And the truth of the matter is that had the Defense wanted to get at the truth and get that document page 4 original, they could have told us so. They failed to. Mr. Hodgman is here to address the fact that they never requested that original and what has happened here is they are paying for their own tactical choice.
And good morning, your Honor. I understand my name has been taken in vain this morning so I thought I would come down and see if I could be of any help in enlightening the Court. And as the Court has asked, I will offer to the Court what I know about the situation. First of all, in terms of my direct contact with the questioned document examiner, I had asked Mr. Yochelson of our office to handle that more directly. I was a participant in some of the communications with counsel in terms of setting that up, as well as with Mr. Matheson at SID. And some of what I am about to relate to the Court is based on--
Mr. Hodgman, let me just cut through all of that, because I know that you and Mr. Yochelson were involved in the discovery discussions between the parties, but the issue is do you acknowledge that the Court had ordered the production of the original documents.
Yes, and we made every effort to turn over those documents. In fact, counsel, Mr. Neufeld, had alerted us to the fact that there was apparently--well, actually my recollection may be a little vague on this. I think we alerted Mr. Neufeld that there was one--one--there was one original that we couldn't locate and Mr. Matheson had informed me about that.
I recall it as being l-16/31 which at the time we believed was two sides of the same single page. I think in the interim we have determined that those are in fact two pages.
And I see affirmative nodding of heads in Defense counsel, so that appears to be the case. And with that, I know Mr. Matheson undertook to find that particular page, that missing page, which subsequently--and I'm not sure as to the exact point in time we did, and all of this was in the spirit, your Honor, and I think Mr. Neufeld, with whom I was communicating primarily on this, and I know Mr. Yochelson was having additional conversations, was in the spirit of trying to comply fully, openly, forthrightly with the Court's order. Until yesterday afternoon I never knew about this page 4 which Mr. Scheck was utilizing in the course of his cross-examination. As far as the discovery of page 4, it appears that it was discovered as represented. I can't shed any new facts on that, but it appears the fact that it was not turned over was certainly inadvertent, as the Court has pointed out. And as far as the manner of disclosure, if counsel was aware of it, I would think had they alerted us, we would have made--we would have made effort, in fact gone to great pains to attempt to sort out the situation for the Defense, for the Court, for purposes of getting at the truth. We have no interest in hiding the truth, your Honor. This--
And as I'm reminded from Miss Clark, and I can speak for Mr. Yochelson on this as well, we were never notified that that particular page, this page 4, was missing. Had we--
Counsel, I have already made a finding that the failure to locate the original page 4, up and to and including yesterday, was inadvertent and in examining the two documents there is nothing on them, so there is obviously no Brady content, there couldn't be because it is just a blank form. The issue being should it have been disclosed as soon as it was discovered that this was an original and it was the lynch pin of an interesting argument made by the Defense, rather than springing it on the witness, to the surprise of the Defense, during the first phase of redirect?
And the only reason I bring the point up, your Honor, is with regard to the issue raised by Mr. Goldberg, which I believe is a valid issue about tactical choice, had we been notified, had a phone call--
Yes, and the Court did in fact raise the Court order. All I'm saying is had we known that that particular original had not been produced, we would have gone to great pains, great efforts to find it for them, so that they could have had it, but we never got that notification.
All right. Thank you, Mr. Hodgman. All right. I find that the failure to immediately disclose to the Court, to counsel, was a violation of the Court's order and I'm going to instruct the jury as to that. All right. Let's have the jurors.
I've heard your request, I've heard their request. I don't think preclusion--I forgot to also add, I don't believe preclusion is an appropriate remedy.
Well, we would like an instruction to the jury as to the videotape, that they intentionally did not disclose that videotape to us yesterday, the series of videotapes at the Rockingham location. In identical words to whatever the Court is going to now instruct the jury. We think we are entitled to that. We think this is a completely analogous situation. I did not ask for it at the time because, quite frankly, I was thinking no harm, no foul, which is the way I felt this should be resolved, but we would ask for that kind of admonition. Second issue is the phenolphthalein issue.
All right. What is the likelihood we will get to phenolphthalein today on your redirect?
We have some additional points and authorities that we would like to present on that issue at some point.
Which is why I tried to start at 8:30 this morning. All right. For your information the Court will instruct as follows: "In this case in a pretrial motion the Court ordered the production of the original field notes, Defense exhibit 1107, for the purposes of examining these items by a questioned documents examiner. At the end of the Defense cross-examination of Mr. Fung the Prosecution discovered in its possession what purports to be the original page 4 of Defense exhibit 1107. The Prosecution should have immediately disclosed this discovery to both the Court and the Defense counsel. Failure to immediately disclose was a violation of this Court's order." That will be the Court's instruction.
You made your record, counsel, more than adequately. I have allowed you to argue more than an hour today.
This argument has gone way beyond its need. I have allowed both sides adequate record making. I have made my ruling.
Is the Court refusing to admonish the jury concerning the Defense willful refusal and disobedience of the Court's order to advise us ahead of time about the videotapes?
Yes, your Honor, I did. The People have made a request of this Court that the jury be admonished concerning the Defense willful withholding of the videotapes and their production and notice to the Prosecution in violation of the Court's order. And the Court's made this order a number of times requiring that both sides apprise the other--
And as far as timing. And my request is that if the Court is inclined to give an admonition concerning the Prosecution's discovery issue on page 4, that it withhold that admonition until we resolve the admonition concerning sanctions against the Defense for their willful refusal to obey the Court's order concerning production of the videotapes and that the admonitions be given at the same time if any admonition is to be given at all. And so since the Court indicated that it is inclined to resolve the issue of Defense--of an admonition to the jury concerning the Defense violation of the Court's order concerning production of the videotapes until 4:30 Monday--
Did she? That we resolve all of those issues at 4:30 on Monday and the Court give all admonitions at the same time. And that's what I would ask the Court to do at this time.
Let me also remind the Court, I'm reminded by Mr. Darden appropriately that the Defense violation of the Court's order resulted in a two-and-a-half delay yesterday because they did not advise us.
Well--but you know something? They were really the cause of it, your Honor. That's the truth. You know, it's very gracious of the Court to take some responsibility, but it's not the Court's responsibility. The Defense should have told us about those tapes and counsel--
The only issue is whether or not I should withhold the sanction instruction now. Mr. Cochran.
Thank you very kindly, your Honor, and I appreciate the opportunity and I'll be brief, your Honor. Again, as you've so often said, they're comparing apples and oranges, your Honor. This is a situation, a violation that occurred right with this jury yesterday that needs to be corrected. The Court could have very easily and would have probably allowed counsel to reopen to cure this thing. They made an intentional decision out of the mouth of Mr. Goldberg. So I don't want to belabor and reargue that. So this needs to be dealt with right now. With regard to that, your Honor--and the sanctions are your Honor's business. You've had under submission now for almost two weeks additional sanctions regarding the Prosecution. We're not asking you to deal with that. And we have this rule of one lawyer talking per side, which consistently is violated by the other side there. And, your Honor, we tried not to do that. But I feel constrained at least to point out--
And certainly, your Honor, when we address you, I think you can point out that we address you in a respectful manner, not in a hostile manner standing up when you tell us to be quiet. We sit down and do that. And I think that should work for both sides. And I hope and I pledge to you we're going to do that from our side. But the point is, this is a violation which the Prosecution has been caught red-handed in today, your Honor. Mr. Goldberg to his credit stood here and said all of them--it's not just Mr. Goldberg. All of them sat here and made a conscious decision to violate your Court order. That's a different situation.
Well, excluding Mr. Darden. He said all the rest of them including Mr. Harmon, Mr. Clarke, all the rest of them did sat there, including--
Well, we won't--we'll exclude Miss Martinez and Mr. Darden. But the rest of them, they made a decision and we saw them in Court discussing it yesterday. The point is, your Honor, this is something that needs to be dealt with right away and right now. With regard to the--and we're more than happy to have you look at the videotapes. What you're going to find is, they had all of those videotapes with the exception of one that came here, your Honor--it was delivered in this courtroom and we gave it to them immediately. There was no violation. And what happened was, unlike this situation where they made a tactical decision for an advantage and then tried to do this in front of the jury, they saw these videotapes. They went back in your chambers. You gave them the chambers for all that time. We--if we got--if we got a videotape--
Yes. I don't want to argue it, but I think--we welcome that. But this is a separate situation as you so correctly have pointed out in the past, and I would ask you to proceed. You know, when they're wrong, they're wrong, and we have to deal with that as we've done in the past. Let's move this on. We have 12 people or--well, we have 19 people now or 18 people back there who have been waiting all this time.
18, and I hope it doesn't get any less. But we have 18 people back there who have a right to proceed, and we have a right to have this corrected today. The wrong was yesterday. It should have been corrected yesterday. They made a decision and they can't hide behind the fact they want to bring up something on us. This is--we're professionals. We should go forward at this point and deal with it. We welcome any discussion because you're going to find there was no violation regarding these tapes. They had all the tapes. They should watch them. And when we got the new tape, he then showed it to them. You let them have chambers for that reason. So I would ask you to proceed with that, your Honor. And I thank you very kindly.
May I just point out one thing? Just one. And the situation is identical. It's a tactical decision that the Defense made to brandish a videotape before the jury in a grandstanding fashion in violation of the Court's order requiring us to object in front of the jury. No different. It's a tactical decision that they make deliberately with knowledge, repeated knowledge of the Court's ruling.
But that's why I think the sanctions should be resolved all at the same time. Because it is the same issue and the same conduct that we're being accused of, and I don't think it's the same--I don't think that we are in violation, but clearly they were and they did it on purpose.
No. It is. This is going to end hopefully, your Honor. Your Honor, with regard, your Honor, to the tapes, nothing was brandished before the jury. They had already seen those videotapes. And the Court excluded the jury and we looked at the tapes. They had every reason--they called Vannatter over here. They had people come down. This is a different situation, your Honor. We acted appropriately. Mr.--
Yes. But I mean it's--they're separate things, your Honor. You see that. I mean it's separate things. It's apple and oranges. It's apples and watermelons. It's different. One thing.
Thank you. All right. We do have other sanctions matters on--it is my recollection, the Harmon sanctions motion. Miss Clark, are you going to file any papers on the videotape?
All right. File it by Tuesday morning. All right. All further sanctions issues will be taken up Wednesday afternoon, April 19, 4:00 o'clock. All right. Let's have the jury, please.
They purposely did not do that. Instead what they tried to do was begin a redirect examination to rehabilitate Mr. Fung in an unfair way to try to rehabilitate his credibility on this critical issue of whether or not he got the blood vial on June 13, as opposed to the morning of June 14.
I would like to cite a lesser known provision of the penal code called the it-is-just-too-bad rule. They made a tactical choice. If they were interested in the truth, if they were concerned about not proceeding on a theory that could be easily disproved, they knew how to do that.
I find that the failure to disclose both to the Court and to Defense counsel the discovery of the original document page 4 to have been intentional and should have been done prior to the conclusion of the cross-examination by Mr. Scheck.
We discussed it, and we felt that it was clear that they had made a tactical choice, it is clear that they could have brought it to our attention, it is clear that we were entitled to introduce this, it is clear that we had no obligation under the law to produce it, and at that time, at that hour, we believed we did not have an obligation.
Mr. Goldberg actually said, well, Mr. Scheck was trying to achieve a Perry Mason moment here. He was hoisted on his own pitard — he didn't say that, but words to that effect.