Back on the record in the Simpson matter. The Defendant is present before the Court with his counsel, Mr. Shapiro, Cochran, Blasier, Scheck and Neufeld. And the People are represented by Mr. Goldberg and Mr. Darden. All right. Deputy Magnera, let's have the jurors, please.
All right. Thank you. But who is counting? Good morning, your Honor. Your Honor, at the--kidding, your Honor. At the end of the day yesterday--and I brought this matter to your attention--I thought I should put it on the record. After our hearings in chambers, which were confidential hearings, Mr. Shapiro and I came out and we were out in the courtroom and we were just about to leave and I had to go back into the hallway there and something very disturbing occurred, as far as I was concerned. As the Court is aware, the Commander Holland, I guess his name is, from the Sheriff's Department, sat in on all the interviews, and I then saw the District Attorneys, the two District Attorneys going into the jury room to have a private meeting with the Sheriff's Commander. Now, that has been our concern from the very beginning, that this man who is over all the sheriffs who sit with our jurors, would impart special information to the D.A.'s office. I don't know what they were talking about. They didn't invite us back there. And I indicated to the Court my concern yesterday afternoon when this meeting was going on. We then left the Court, but I think that it is certainly, from an appearance standpoint, it is absolutely outrageous to have something like this happen, and it is unfortunate. And I wanted to document on the record. I did bring it to the Court's attention right away and the meeting--I don't know how long the meeting went on, but it did in fact take place, and I think it is entirely inappropriate for the District Attorneys to meet with the representatives from the Sheriff's Department who are sitting with our jury and it only fans the flames. And I wanted to indicate that for the record.
Thank you, your Honor. Your Honor, on January 20th you issued an order instructing all--all fact witnesses in this case to refrain from watching any television or listening to any radio coverage about the trial and testimony having to do with--that in any way may pertain to the subject matter of their own testimony. As I recall, when Miss Mazzola testified on Thursday, she acknowledged that she had been listening to radio coverage of the case and testimony, and in fact there was a radio in the toxicology laboratory that was broadcasting the trial live. She also mentioned that there were other radios all over the SID laboratory that are covering the trial live, and in fact there is a television--
Umm, and you know, two things: One, is really your order creates an exception for experts. I don't believe that Miss Mazzola is an expert. First of all, she is a criminalist 1 and I don't believe she would meet the criteria for an expert as you envisioned it when you issued this order. Secondly, and more importantly, your Honor, to the extent that she does give opinion testimony, as does for instance Detectives Lange and Vannatter as well can give opinion testimony, they are first and foremost fact witnesses in this case, as opposed to the classic example of an expert which I'm sure the Court had in mind. Your Honor, I think it is one thing if a neighbor for instance who testifies who is walking--
I'm asking for an instruction, your Honor, to this jury, that they should take into consideration the fact that apparently the Prosecutors failed to instruct these witnesses at SID not to listen to the coverage of the trial. I'm also worried in a broader sense, every single witness, they have about six or seven people from SID who are going to be testifying who are fact witnesses, and apparently the trial is being covered, you know, live as we speak throughout the SID laboratory. And all the people are listening to it on a regular basis that will be coming into Court and testifying. I think that clearly, you know, violates both the letter and the spirit of your ruling. I think it is completely different, your Honor, if a civilian witness who comes in here happened to watch something on the television, listened to it on the radio, but we have people who are actually under the control, or at least some possible direct control here, by the District Attorney's office, of the Los Angeles Police Department, and those people have either been--have not been admonished or they have been admonished and ignored the admonition.
Thank you. Your Honor, as I recall the Court's order, and I read it, it did exempt expert witnesses, and the witness that we are calling are all expert witnesses, and we don't have and sliding scale for expertise where somehow people with Ph.D.'s are treated differently than people with Bachelor's degrees. These are expert witnesses who are trained in crime scene processing. Other SID witnesses are expert witnesses who are trained in analysis and are going to be testifying as expert witnesses. If the Court will recall the cross-examination on Mr. Fung, there are several things that I bring up. No. 1, he was given a lengthy series of hypothetical questions. We don't allow those questions for anyone other than an expert witness. He was cross-examined about treatises that he has read.
Okay. But your Honor, I don't distinguish between the two, and that is my point. I don't see that we have a sliding scale of expertise. She has gone to school. She has graduated. She has read textbooks on crime scene processing. She has been trained in crime scene processing. She is going to be asked to render certain opinions about what she did and the effects that it had, and so on. And what we are trying to decide is whether prospectively the Prosecution had a duty to misinterpret the Court's plain order that exempted expert witnesses.
Reinterpret. I think misinterpret because it seems like it is--yeah, there is a rule of statutory construction that unless there is some ambiguity in the language you interpret it the way it is written, and that is what I did. But I would just like to try to look at this prospectively from the Prosecution's standpoint. What has happened with our SID witnesses? They have been asked about things that they did not witness. Mr. Fung was examined extensively about a blanket that was placed upon Nicole's body that occurred before he arrived at the crime scene. He was questioned about the movement of objects that occurred before he arrived at the crime scene. He was questioned about whether the location had been cleared for footprints before.
Well, you have to assume that since I was here I was probably listening to the testimony.
I know, but I am just trying to highlight the significant points of it. And they were asked about Coroner's activity. One of the ways that you can question an expert is about a hypothetical, and another way, and it is a proper way, is to ask the witness have you viewed the testimony? Have you listened to the testimony? And based upon what you have heard, what opinions did you render? That is an appropriate way of questioning an expert witness. It is not used as frequently as the hypothetical, but it is used.
And if our witnesses are going to be questioned, as they have, about things that they didn't witness, didn't hear, it would be proper, perhaps even advisable, if we had instructed them not only do I not want you to avoid this, but I want you to sit down and listen to every single witness who testified about anything regarding crime scene processing, because you are going to be questioned about it. You are going to be asked to render opinions about it and conclusions about it, so you should look at the crime scene photographs, videotapes. You should--you should listen to all of the testimony, because you are going held accountable in the cross-examination for all of that material. And as an expert witness you can be held accountable for it and there is no basis upon which to distinguish between any of our scientists at SID, and I think that that kind of instruction would be entirely improper. But what I would ask the Court to do--and I was thinking about this before Mr. Neufeld raised it, is to instruct the jury, since they don't know that the Court did issue an order that exempted expert witnesses--I was thinking the exact opposite of what Mr. Neufeld is--
--that there is something improper about what happened here, and what immediately occurred to me is, well, wait a minute, the jury should know that there is an order that exempts expert witnesses, and we would be asking for an instruction to that effect.
No, I haven't, your Honor, but I will draft an instruction, and what I would propose to do probably would be simply to draft an instruction that is along the lines of the language that the Court used and it is says we apply different rules towards expert witnesses and here was my order that I gave out to the Prosecution and to the Defense.
The Court will decline at this time to instruct the jury regarding this issue. The Court's order regarding expert witnesses does cover anybody from the Scientific Evidence Division. It is not reasonable for the Court to go expert by expert, given this particular category of witnesses. Secondly, the Defense has the right to cross-examine as to what exposure Miss Mazzola has had and that is fair game for cross-examination. All right. Let's have the jurors, please. Let's have Miss Mazzola.
And Mr. Neufeld, just so I can plan the rest of the week, what is your guesstimate trial wise?
I will be finished with this witness by lunch tomorrow, your Honor, but I will give you a better estimate by lunch today.
I then saw the District Attorneys, the two District Attorneys going into the jury room to have a private meeting with the Sheriff's Commander. Now, that has been our concern from the very beginning, that this man who is over all the sheriffs who sit with our jurors, would impart special information to the D.A.'s office.
I think that it is certainly, from an appearance standpoint, it is absolutely outrageous to have something like this happen.
If our witnesses are going to be questioned, as they have, about things that they didn't witness, didn't hear, it would be proper, perhaps even advisable, if we had instructed them not only do I not want you to avoid this, but I want you to sit down and listen to every single witness who testified about anything regarding crime scene processing.
The Defense has the right to cross-examine as to what exposure Miss Mazzola has had and that is fair game for cross-examination.