BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED. LET'S SEE. WE HAVE A NEW ADDITION, BRIAN KELBERG --
-- ON BEHALF OF THE PEOPLE. GOOD AFTERNOON, SIR. ALL RIGHT. WE HAVE TWO MOTIONS ON FOR THIS AFTERNOON. ONE HAS TO DO WITH -- ONE HAS TO DO WITH THE CROSS-EXAMINATION OF DR. GOLDEN AND THE OTHER HAS TO DO WITH ADMISSIBILITY OF AUTOPSY PHOTOGRAPHS. MR. KELBERG.
YOUR HONOR, IF IT WOULD PLEASE THE COURT AND COUNSEL, I WOULD PREFER TO ADDRESS THE DR. GOLDEN MOTION FIRST.
CORRECT, AND I DID RECEIVE COUNSEL'S RESPONSE FILED I BELIEVE ON FRIDAY. AS I UNDERSTAND IT, DEFENSE'S RESPONSE WAS NOT FILED UNDER SEAL. I HAVE HEARD SOME PUBLIC COMMENTARY REGARDING IT. OURS WAS FILED UNDER SEAL. AND OF COURSE I ASSUME THE COURT HAS HAD AN OPPORTUNITY TO REVIEW WHAT WE SAY IN OUR BRIEF. LET ME BEGIN BY ACKNOWLEDGING WHAT IS A SOMEWHAT DIFFICULT POSITION FOR ME, AND ESPECIALLY SOMEWHAT DIFFICULT BECAUSE MY COLLEAGUE, MR. HARMON, IS SITTING RIGHT BEHIND ME. I THINK THE COURT PROBABLY RECOGNIZED, IF IT REVIEWED MR. HARMON'S MOTION REGARDING THE SCOPE OF CROSS-EXAMINATION OF EXPERTS AND REVIEWED MY MOTION CONCERNING THE SCOPE OF CROSS-EXAMINATION OF EXPERTS, THAT WE SEEM TO BE TALKING ABOUT THE SAME TOPIC BUT SEEM TO REACH VERY DIFFERENT VIEWS OF WHAT THE LAW IS IN THIS AREA. AND I THINK IT IS CLEAR TO SAY THAT MR. HARMON DIDN'T CONSULT ME WHEN HE FILED HIS MOTION, AND I THINK IT IS CLEAR THAT I DID NOT CONSULT HIM WHEN MR. LYNCH, WHO IS SITTING -- I DON'T KNOW IF THE COURT HAS MET MR. LYNCH, BUT MR. LYNCH IS MY COLLEAGUE WHO HAS ASSISTED ME ABLY ON THESE MOTIONS, ALONG WITH MS. LEWIS ON THE PHOTOGRAPHIC MOTION, THAT WE DID NOT CONSULT MR. HARMON. I SAY THIS BECAUSE I BELIEVE THAT IN TESTING EXPERT TESTIMONY ONE SHOULD TEST IT ON THE MERITS OF THE SCIENCE OR THE MEDICINE AND I BELIEVE THE LAW SPORTS THAT POSITION. AND AS A RESULT OF MY PERSPECTIVE I DO NOT BELIEVE THAT ONE'S PERSONAL USE OF DRUGS, WHEN THE PERSON IS NOT A PERCIPIENT WITNESS AND THE QUESTION MAY BE WHETHER THE PERSON'S PERCEPTIONS OR ABILITY TO PERCEIVE AND RECOLLECT WERE AFFECTED BY DRUGS, THAT THAT BECOMES AN ISSUE, AND I CARRY THAT OVER, AND I REALIZE THAT THERE IS THIS DICHOTOMY, AND PROBABLY I WON'T RIDE IN THE SAME ELEVATOR BACK WITH MR. HARMON AFTER COURT THIS AFTERNOON. HE HAS GIVEN VALUED ASSISTANCE TO OUR OFFICE, FROM ALAMEDA, BUT THE LAW IS THE LAW, AT LEAST AS I SEE IT, AND IT APPLIES WHETHER IT IS MY MOTION, MR. HARMON'S MOTION OR A DEFENSE MOTION. SO I HAVE TO BEGIN WITH THAT CAVEAT. IT IS A SOMEWHAT DIFFICULT PROCEEDING. I BELIEVE OUR POSITION ON THE LAW IS THE STATE OF THE LAW ON SCOPE OF CROSS-EXAMINATION OF AN EXPERT. LET ME BEGIN THEN WITH THE ALLEGED GUN INCIDENT OF DR. GOLDEN. THE FACT THAT JUST A WEEK AGO THE ACADEMY AWARDS WERE GIVEN OUT AND TOM HANKS WON FOR THE SECOND YEAR IN A ROW CAUSED ME TO REVIEW THE MOVIE FOR WHICH HE WON THE OSCAR THE YEAR BEFORE, PHILADELPHIA STORY, AND THE COURT MAY HAVE SEEN THE MOVIE A YEAR AGO. WHEN TOM HANKS IS DYING OF AIDS, HE IS AT HIS HOSPITAL BED DYING WHEN HIS LAWYER, DENZEL WASHINGTON, COMES TO REPORT THE SUCCESS FROM A BIG VERDICT THAT THE JURY HAS RENDERED IN HIS WRONGFUL DISCHARGE SUIT. AND AT THAT TIME TOM HANKS WHISPERS A JOKE TO DENZEL WASHINGTON, WHICH AS DENZEL WASHINGTON IS LEAVING THE HOSPITAL HE ENTERS AN ELEVATOR WHERE THERE IS A PATIENT IN A WHEELCHAIR AND A CERVICAL COLLAR, AND HE REPEATS THE JOKE TO THAT PATIENT. WHAT DO YOU CALL A THOUSAND LAWYERS CHAINED TOGETHER AT THE BOTTOM OF THE OCEAN? AND BEFORE DENZEL WASHINGTON CAN EVEN GIVE THE PATIENT THE PUNCHLINE, THE PATIENT, WITH A BIT OF A SARDONIC SMILE PROVIDES IT, "A GOOD START." IT IS UNFORTUNATE, YOUR HONOR, THAT THE LEGAL PROFESSION HAS A PERCEPTION IN THE POPULATION AT LARGE THAT IS SOMETHING LESS THAN FAVORABLE. IT IS CLEAR THAT WE HAVE PERHAPS ONLY OURSELVES TO BLAME THAT WE SOMETIMES USE TRICK AND ARTIFICE, IT SEEMS, IN CROSS-EXAMINATION OR DIRECT EXAMINATION AND CAUSE WITNESSES TO BE MADE TO LOOK FOOLISH WHEN IN FACT IT IS A VERY CREDIBLE AND TRUTHFUL WITNESS. SO WE DO HAVE ONLY OURSELVES TO BLAME FOR THIS PERCEPTION. AND THE INCIDENT INVOLVING DR. GOLDEN, EVEN IF THE INCIDENT OCCURRED IN A WAY WHICH IS THE MOST FAVORABLE TO THE DEFENSE, THAT IS A REAL WEAPON, AND THE THREAT BEING MADE REGARDING TAKING OUT LAWYERS, THAT DOES NOT SHOW BIAS AGAINST THESE LAWYERS. AFTER ALL, MR. HODGMAN, THE PROSECUTOR AT THE PRELIMINARY HEARING, IS A LAWYER. WE ARE LAWYERS. IF ANYTHING, AT ITS BEST SUCH EVIDENCE MERELY SUGGESTS WHAT IS A NATIONALLY HELD VIEW, THAT YOU COULD TAKE A THOUSAND AND A WHOLE LOT MORE LAWYERS, CHAIN THEM TO THE BOTTOM OF THE OCEAN AND SOCIETY MIGHT BE THE BETTER FOR IT. I HAVE A DIFFERENT VIEW. THIS COURT WAS A LAWYER FOR MANY YEARS. I HAVE BEEN A LAWYER FOR MANY YEARS. DEFENSE COUNSEL HAVE BEEN LAWYERS FOR FAR MANY YEARS MORE THAN I HAVE. AND I DON'T THINK ANY OF US WOULD BE IN THIS IF IT WERE NOT AN HONORABLE PROFESSION. AND I SPEAK OF THAT BOTH FROM THIS SIDE OF THE TABLE AND FROM THAT SIDE OF THE TABLE BECAUSE SOMEONE WHO IS VERY NEAR AND DEAR TO ME PRACTICES LAW FROM THAT SIDE OF THE TABLE; NOT THIS SIDE OF THE TABLE. AND SO WHEN THE PUBLIC HAS THIS CONCERN ABOUT LAWYERS, IT BOTHERS ME, BUT IF THE ISSUE IS DID DR. GOLDEN MAKE MISTAKES IN THE WAY HE PERFORMED THE AUTOPSY, HOW IS THIS VIEW OF LAWYERING GOING TO ASSIST A JURY IN DECIDING WHETHER MISTAKES WERE MADE OR NOT? LET ME TELL THIS COURT, THERE IS NO QUESTION MISTAKES WERE MADE AND WE ARE GOING TO BRING OUT THOSE MISTAKES. THERE IS NOTHING TO HIDE. WHEN ONE LOOKS AT THE EVIDENCE -- AND WE HAVE NO FEAR THAT WHEN ALL OF THE EVIDENCE IS OUT AND ALL OF THE EVIDENCE IS PRESENTED TO THIS JURY THAT THEY WILL MAKE A FAIR AND RATIONAL DECISION, BECAUSE ALTHOUGH IN DEAN UELMEN'S RESPONSE, I THINK TO THE PHOTOGRAPHIC MOTION, HE USED THE PEJORATIVE TERM "INCOMPETENCY," NO. 1, THAT IS NOT A TERM WE USE AND THAT IS NOT A TERM WHICH IS GOING TO APPLY TO WHAT DR. GOLDEN DID, BUT WHEN YOU USE A TERM LIKE "INCOMPETENCY" AS A PEJORATIVE, IT CONVEYS AN IMAGE THAT NOT ONLY WERE MISTAKES MADE, BUT THEY REALLY MATTER. THEY GO TO THE HEART OF CAUSE OF DEATH, MANNER OF DEATH, WAS THERE ONE KILLER, MULTIPLE KILLERS, HOW DID THESE PEOPLE BLEED, SHOULD BLOOD BE ON THE PERPETRATOR AND SO FORTH. WELL, WHAT THE EVIDENCE IS GOING TO SHOW, AND I HAVE THE UTMOST CONFIDENCE MY COLLEAGUES WILL BE ABLE TO ARGUE SUCCESSFULLY TO THIS JURY, IS THAT WHATEVER MISTAKES DR. GOLDEN MADE, THEY DO NOT IMPACT ON ANY ISSUE IN THIS CASE. LET ME USE THE MOST WELL-KNOWN EXAMPLE. EVERYBODY TALKS ABOUT, MY GOD, HE THREW AWAY THE STOMACH CONTENTS OF NICOLE BROWN SIMPSON. WHAT AN IDIOTIC THING TO DO. WELL, I THINK IT IS FAIR TO SAY THE EVIDENCE WILL SHOW SHE DID NOT DIE OF FOOD POISONING FROM MEZZALUNA RESTAURANT AND SHE DID NOT DIE FROM DRUG INTOXICATION FROM TAKING TOO MANY BARBITURATES THAT ARE STILL IN HER STOMACH. IF ONE WANTS TO LOOK AT THE MEDICAL REASONS WHY ONE WOULD SAVE THE STOMACH CONTENTS, THEN THAT IS A PERFECTLY FAIR ISSUE TO PRESENT TO THIS JURY. AND I SUBMIT WHEN THE EVIDENCE IS OUT, THERE IS NO MEDICAL ISSUE THAT WARRANTED SAVING THOSE CONTENTS. BECAUSE THE EVIDENCE WILL SHOW THAT DR. GOLDEN DID WHAT ANY SOUND FORENSIC PATHOLOGIST EXAMINING A BODY IN THIS SITUATION WOULD DO; HE OPENED THE STOMACH, HE EXAMINED ITS CONTENTS. HE WROTE IT DOWN CONTEMPORANEOUSLY TO HIS EXAMINATION AND THE FORM WILL BE IN EVIDENCE FOR ALL THE WORLD TO SEE THAT HE, NOT BY JUST LUCK, BUT BY COMPETENCY, EXAMINED AND FOUND RIGATONI IN NICOLE BROWN SIMPSON'S STOMACH AND FOUND THE VOLUME TO BE 500 CC'S. AND THIS COURT MAY REMEMBER WHEN MS. CLARK WAS EXAMINING, I BELIEVE TIA GAVIN IS THE SERVER'S NAME, SOMEBODY CAME IN I GUESS AT THE LUNCH HOUR WITH SOME DOCUMENT IN RESPONSE TO AN SDT WHICH MISS CLARK DIDN'T HAVE THE FOGGIEST IDEA ABOUT, AND THAT IS MY RESPONSIBILITY, BECAUSE I THOUGHT, GETTING INTO THE CASE SOMEWHAT BELATEDLY, THAT, GEE, IT MIGHT BE INTERESTING TO SEE WAS IT A LUCKY GUESS BY DR. GOLDEN THAT SHE HAD RIGATONI IN HER STOMACH, OR DID HE IN FACT MAKE AN ACCURATE OBSERVATION. AND LO AND BEHOLD, AS THE EVIDENCE HAS ALREADY SHOWN, HE MADE AN ACCURATE OBSERVATION. AND THAT THE EVIDENCE WILL FURTHER SHOW, YOUR HONOR, THAT WHEN SOMEONE IS ABLE TO IDENTIFY INTACT FOOD IN THE STOMACH, NOT WHAT I SAY, NOT WHAT DR. GOLDEN SAYS, BUT, FOR EXAMPLE, ONE OF THE MOST RECOGNIZED FORENSIC PATHOLOGY TEXTS IN USE IN THIS COUNTRY, SPITZ AND FISHER -- I WILL GIVE THEM A PLUG, SPITZ AND FISHER MEDICAL LEGAL INVESTIGATION OF DEATH, THIRD EDITION -- WHAT DO THEY SAY AND WHAT IS THE EVIDENCE GOING TO SHOW? IT IS GOING TO SHOW: "IT HAS BEEN FOUND THAT STOMACH CONTENTS WHICH ARE READILY IDENTIFIABLE BY NAKED EYE INSPECTION WERE USUALLY INGESTED WITHIN A TWO-HOUR PERIOD." AND OF COURSE THE COURT WILL RECALL THE TESTIMONY IS THAT MS. BROWN LEFT THE RESTAURANT BETWEEN 8:30 AND 9:00, ONE WITNESS SAID 8:45'ISH, AND I ASSUME THAT MY COLLEAGUES WILL ARGUE TO THE JURY THAT IT IS REASONABLE TO ASSUME THAT ONE DOESN'T PUT IN THE LAST BITE OF FOOD AND IN THE NEXT BREATH TAKE THE FIRST STEP OUT OF THE RESTAURANT. IF ONE IS TALKING ABOUT 10:15 VERSUS ELEVEN O'CLOCK, WE DON'T NEED DR. GOLDEN'S INCIDENT WITH THE GUN TO TEST THE STOMACH CONTENTS AND TO TEST THE SIGNIFICANCE OF THAT STOMACH CONTENTS. AND IN FACT WHAT IS SOME OF THE STRONGEST EVIDENCE ON STOMACH CONTENTS COME FROM THE WORDS UNDER OATH OF THE DEFENSE EXPERT THAT MR. COCHRAN HAS INDICATED TO THIS JURY THEY WILL HEAR FROM, DR. BADEN, WHO IN A 1988 CASE FOR THE PROSECUTION SAID THAT THE TIME OF DEATH WHERE HE WAS ABLE TO IDENTIFY INTACT PIECES OF POTATO AND MEAT WITH CLEAR MARGINS AROUND THE FOOD INDICATING LACK OF DIGESTIVE PROCESS, THAT INDICATED DEATH LESS THAN ONE HOUR FROM THE TIME OF EATING. AND DR. BADEN'S VIEW IS THAT THE STOMACH EMPTIES IN SOMETHING LIKE OR LESS THAN TWO HOURS, WHICH MAY OR MAY NOT BE MEDICALLY CORRECT, BUT NEVERTHELESS, FROM THE WORD OF THEIR OWN EXPERT, THE EVIDENCE OF THE STOMACH CONTENTS WILL SHOW THAT THE TIME OF DEATH IS IN FACT CONSISTENT WITH 10:15 AND NOT CONSISTENT WITH ELEVEN O'CLOCK. SO IN SPITE OF EVERYBODY TALKING ABOUT STOMACH CONTENTS AND THROWING THEM AWAY, THERE IS ONLY ONE REASON THE STOMACH CONTENTS SHOULD HAVE BEEN SAVED IN THIS CASE, AS THE EVIDENCE WILL SHOW, TO COVER THE BACK SIDE OF DR. GOLDEN SO THAT DR. BADEN COULD HAVE EXAMINED IT. IT IS DEFENSIVE MEDICINE IN THE PRACTICE OF CLINICAL MEDICINE. IT IS DOING UNNECESSARY TESTS TO PROTECT THE DOCTOR FROM BEING SUED WHEN THERE IS AN ADVERSE OUTCOME. BUT IF THE ISSUE IS GOING TO BE THE MEDICAL JUDGMENT AND THE MEDICAL FINDING THAT THAT EVIDENCE CAN SUPPORT, THERE IS NO QUESTION THAT WE ARE CONFIDENT THAT THE EVIDENCE WILL SUPPORT THE VIEW THAT THE STOMACH CONTENTS, IF TO BE USED AT ALL FOR ESTIMATING TIME OF DEATH, SUPPORTS 10:15 AND REFUTES ELEVEN O'CLOCK. WE DON'T NEED THIS ALLEGED ANIMOSITY TOWARDS LAWYERS TO TEST THAT. NOW, THIS IS ASSUMING THAT THE INCIDENT OCCURRED THE WAY IT DID. THE EVIDENCE IS ANYTHING BUT CLEAR THAT THE INCIDENT OCCURRED THAT WAY. IN FACT, THERE IS AN ISSUE IS IT A REAL GUN OR A TOY GUN, IS IT SAID IN JEST, AND MOST IMPORTANTLY, WHO IS IT IN REFERENCE TO? THE LAWYERS IN THE SIMPSON CASE? THIS IS A COMMENT ALLEGEDLY MADE 13 DAYS AFTER DR. GOLDEN TESTIFIED AT THE PRELIMINARY HEARING; 13 DAYS. NOW, IF DR. GOLDEN FELT THAT HE WAS SUBJECTED TO WHAT DEAN UELMEN CALLS A BLISTERING CROSS-EXAMINATION BY MR. SHAPIRO, I HAVE TO SAY I HAVE READ IT, I HAVE WATCHED IT, AND IF THAT IS BLISTERING, I CAN ONLY IMAGINE HOW DEAN UELMEN WOULD CHARACTERIZE MR. DOUGLAS' CROSS-EXAMINATION OF MR. SHIPP OR MR. BAILEY'S CROSS-EXAMINATION OF THE TWO POLICE OFFICERS. I WOULD ASSUME HE WOULD USE A TERM LIKE THERMONUCLEAR. THE POINT IS THAT IF DR. GOLDEN WERE SO UPSET, YOU WOULD HAVE HAD AN INCIDENT THAT DAY, THAT NIGHT, THE NEXT DAY. WE KNOW -- I THINK THE COURT COULD ALMOST TAKE JUDICIAL NOTICE -- THAT CORONERS PERFORM AUTOPSIES, ONE, PERHAPS TWO AUTOPSIES, EVERY WORKING DAY THEY ARE THERE WHEN THEY ARE NOT TESTIFYING IN COURT. AND SO WHEN THEY ARE TESTIFYING IN COURT, THEY ARE BEING HASSLED BY A LOT OF LAWYERS, D.A.'S, DEFENSE ATTORNEYS. THEY WANT THEM THERE AT A PARTICULAR TIME. THE DOCTOR CAN'T BE THERE. THEY WANT TO TALK TO THEM IN ADVANCE TO SEE WHAT THEY ARE GOING TO SAY. THE DOCTOR DOESN'T HAVE THE TIME. THERE IS THIS INHERENT TENSION BETWEEN THEIR RESPONSIBILITIES AND OUR RESPONSIBILITIES AND I SAY "OUR," I MEAN THE LEGAL PROFESSION, NOT JUST PROSECUTORS. AND SO ANY ANIMOSITY HE MIGHT HAVE, IF IT IN FACT EXISTS, IS AGAINST THE PROCESS IN GENERAL, IS NOT SHOWN TO BE AGAINST THESE LAWYERS, AND IN FACT THIS IS A CLASSIC 352 CIRCUMSTANCE FOR WHICH CROSS-EXAMINATION SHOULD BE PRECLUDED. WE ARE GOING TO HAVE TO LITIGATE WHAT HAPPENED. DR. GOLDEN DOES IN FACT HAVE A 5TH AMENDMENT PRIVILEGE. AND IN FACT ONE OF THE CASES THAT I PULLED UP THIS MORNING, THE JENNINGS CASE, I THINK IS PARTICULARLY IMPORTANT, 53 CAL.3D 334, PAGE 371, WHERE THE COURT NOTED THAT THE FACT THAT EVIDENCE WOULD CONSUME A CONSIDERABLE PERIOD OF TIME, ESPECIALLY BECAUSE OF THE WITNESSES, WOULD PROBABLY INVOKE THE 5TH AMENDMENT NECESSITATING THE APPOINTMENT OF INDEPENDENT COUNSEL FOR THEM WAS A VALID BASIS FOR THE COURT TO SAY FORGET IT, 352, LET'S KEEP IT OUT. AND INCIDENTALLY, DEAN UELMEN IN HIS RESPONSE DOES NOT POINT OUT THE UNITED STATES SUPREME COURT DECISIONS, SUCH AS DELAWARE VERSUS VANARSDALE, WHICH I CAN GIVE THE COURT THE CITATION TO.
AND THE CALIFORNIA SUPREME COURT CASES WHICH FOLLOW IT WHICH SAY THAT THERE IS NOTHING INHERENTLY INCONSISTENT BETWEEN A COURT EXERCISING ITS DISCRETION UNDER 352 TO EXCLUDE BASICALLY IRRELEVANT, PREJUDICIAL, IN THE WRONG SENSE OF THE TERM, PREJUDICIAL EVIDENCE, AND GIVING THE DEFENDANT AN OPPORTUNITY FOR HIS CROSS-EXAMINATION UNDER THE 6TH. THERE IS NO INCONSISTENCY. WHAT IF WE ARE GOING TO SPEND THE TIME LITIGATING THE FACTS THAT SURROUND THE INCIDENT WITH DR. GOLDEN, THEN I SUGGEST TO THE COURT WE DIVERT THE ATTENTION AWAY FROM THE JURY'S --
-- THE JURY'S UNDERSTANDING OF THE MEDICAL ISSUES INVOLVED. NOW, PERHAPS THE DEFENSE PREFERS THAT, BUT IT SEEMS TO ME WHERE ON DIRECT EXAMINATION MANY MISTAKES WILL BE BROUGHT OUT FROM DR. GOLDEN AND WE WILL ASSESS THE MEDICAL AND SCIENTIFIC IMPACT OF THOSE MISTAKES, THAT THIS INCIDENT INVOLVING ANIMOSITY IS SIMPLY THE KIND OF THING THAT SHOULD BE EXCLUDED. AND IF IT IS NOT EXCLUDED, THINK WHAT THE COURT BUYS ITSELF INTO. PRIOR CONSISTENT STATEMENTS, 791, 1236, BECAUSE THE CONTENTION IS THAT THE BIAS AROSE AS A RESULT OF BLISTERING CROSS-EXAMINATION OF MR. SHAPIRO. THEREFORE, HIS PRELIMINARY HEARING TESTIMONY, HIS GRAND JURY TESTIMONY, WHERE THEY ARE CONSISTENT WITH HIS TESTIMONY AT TRIAL, AND PRIOR TO THE FORMATION OF THE ALLEGED BIAS THAT IS THE SUBJECT OF THIS COLLATERAL MATTER, BECOME ADMISSIBLE UNDER 791 AND 1236. I DON'T THINK IT HELPS ANYONE TO SPEND THE TIME GOING OVER THAT. WE SHOULD BE TALKING ABOUT SCIENCE AND MEDICINE, NOT TALKING ABOUT PRIOR CONSISTENT STATEMENTS ABOUT MATTERS THAT REALLY HAVE NOTHING TO DO WITH THE BOTTOM LINE ISSUES OF THE RELIABILITY AND VALIDITY OF THE FINDINGS. THAT IS MY VIEW ON THE INCIDENT INVOLVING THE GUN. DOES THE COURT WANT ME TO GO ON THEN TO THE OTHER TWO?
OKAY. THE OTHER INCIDENTS AGAIN, 1990 INCIDENTS WHERE DR. GOLDEN MADE CERTAIN MISTAKES. HE MISDIAGNOSED -- AND I'M NOT SURE IS THE CORRECT WORD -- HE OPINED REGARDING ENTRY AND EXIT WOUNDS IN AN INCORRECT FASHION AND HE WAS INVOLVED IN A DETERMINATION OF DISTANCE REGARDING WHERE A GUN WAS AT THE TIME THE SHOT WAS FIRED WHICH TURNED OUT TO BE ERRONEOUS. OUR POSITION ON THE LAW IS VERY CLEAR, YOUR HONOR. THESE ARE SPECIFIC ACTS OF ALLEGED CONDUCT WHICH DO NOT REFLECT OF COURSE ON CREDIBILITY, MORAL TURPITUDE. THEY ARE NOT PRIOR FELONY CONVICTIONS, ET CETERA, SO THEY ARE NOT ADMISSIBLE BECAUSE THEY ONLY SERVE TO CREATE THE IMPRESSION THAT HE HAS A CHARACTER TRAIT FOR BEING AN INCOMPETENT PHYSICIAN, A NEGLIGENT PHYSICIAN AND THAT HE ACTED IN CONFORMITY WITH THAT, THE CLASSIC 1104 OF THE EVIDENCE CODE PROHIBITION. NOW, I THOUGHT IT WAS INTERESTING THAT DEAN UELMEN CITES A FEDERAL CASE -- AND BY THE WAY, THERE IS A SUBSEQUENT COLORADO CASE, I CAN GIVE THE COURT THE CITATION, WHICH REFUSES TO FOLLOW IT -- BUT THE INTERESTING THING ABOUT THE FEDERAL CASE IS YOU HAVE GOT AN EXPERT TESTIFYING FOR THE PLAINTIFF IN A MALPRACTICE ACTION AND THE EXPERT IS GOING TO BE ASKED AND IS ASKED, NO. 1, IF HE HAD INFLATED HIS INVOICES WHEN BEING AN EXPERT WITNESS AND HE TESTIFIED HE HAD. NOW, THAT I HAVE NO DISAGREEMENT WITH. IF SOMEBODY DOES THAT, THAT IS AN ACT THAT REFLECTS ON TRUTH AND VERACITY UNDER WHEELER, SPECIFIC ACT, NOT BARRED BECAUSE OF PROP 8, AND IT BEARS ON TRUTH AND VERACITY. THAT IS FRAUD. I MEAN PLAIN AND SIMPLE. THE OTHER THING WAS HE HAD BEEN SUED THREE TIMES IN MEDICAL MALPRACTICE ACTIONS AND THE COURT SAID THAT WAS FAIR GAME ON CREDIBILITY, BUT THE RULE THAT WAS CITED, THE RULE THAT WAS CITED BY THE COURT IS 608(B) OF THE FEDERAL RULES OF EVIDENCE. 608(B) IS A RULE ANALOGOUS TO THE WHEELER DECISION. IT DEALS WITH SPECIFIC ACTS OF MISCONDUCT OFFERED ON THE ISSUE OF TRUTH AND VERACITY. AND WHAT IS INTERESTING IS THIS DECISION IS I THINK '91. IN 1986 THE UNITED STATES SUPREME COURT, IN A CASE CALLED U.S. VERSUS ABLE, WHICH I CAN GIVE THE COURT THE CITATION IF IT WISHES, HAD TO DO WITH A DECISION WHETHER 608(B) AND THE LIMITS ON CROSS-EXAMINATION WITH SPECIFIC ACTS OF MISCONDUCT ON TRUTH AND VERACITY ALSO BARRED CROSS-EXAMINATION ON SPECIFIC ACTS THAT REFLECTED NOT ON TRUTH AND VERACITY, BUT ON BIAS. WHICH IS THE ARGUMENT THAT DEAN UELMEN MAKES IN HIS RESPONSE PAPERS, THAT THIS -- THESE -- I'M SORRY, IN RESPONSE TO THE FIRST INCIDENT OF THE GUN, THAT IT REFLECTS HIS BIAS. THE DECISION IN THE FEDERAL CASE IS DEALING WITH THE MALPRACTICE ACTIONS, AND YET THE COURT CITES 608(B) AND I DON'T THINK ANYBODY SUGGESTS THAT BEING SUED IN A MALPRACTICE ACTION REFLECTS A LACK OF TRUTH AND VERACITY ON THE PART OF THE DOCTOR. BUT BY RELYING ON THAT SECTION THE COURT HAS, I BELIEVE, MISCHARACTERIZED WHAT THE LEGITIMATE PURPOSE WOULD BE, IF THERE WERE A LEGITIMATE PURPOSE. OUR POSITION IS THAT THE CASE WE CITE, HINSON, ADDRESSES THIS CLEARLY FOR WHAT IT IS. IT IS MISTAKES THAT ARE MADE IN THE PAST CREATE AN IMPRESSION THAT I HAVE A CHARACTER TRAIT TO ACT IN A SLOPPY FASHION, YOU ACTED IN CONFORMITY WITH THAT CHARACTER TRAIT; IPSO FACTO, YOU MUST HAVE BEEN NEGLIGENT IN THIS CASE. WELL, THIS STUFF IS SO EXCLUDABLE UNDER 352 FOR THE VERY REASON THAT DR. GOLDEN IS GOING TO ADMIT TO HIS MISTAKE OR THAT HIS MISTAKES ARE GOING TO BE SHOWN. THERE IS NOT GOING TO BE A QUESTION AS TO WHETHER OR NOT HE MADE MISTAKES. YOU DON'T NEED THIS EVIDENCE. IT IS THE VERY KIND OF EVIDENCE 352 IS INTENDED TO EXCLUDE. IT IS NOT THE ISSUE FOR THIS JURY. THIS JURY IS GOING TO HAVE TO DECIDE NOT WHETHER MISTAKES WERE MADE, BY THE SIGNIFICANCE OF ANY MISTAKES, IF THERE IS ANY SIGNIFICANCE. AND ON THAT HIS PRIOR MISTAKES WILL SHED NO LIGHT WHATSOEVER. NOW, OF COURSE YOU GOT CLASSIC 352 PROBLEMS AND THESE ARE OLD, FOUR AND A HALF, FIVE YEARS AGO. THEY DEAL WITH TWO CASES OUT OF 6500 THAT HE HAS DONE. THEY DEAL WITH GUNSHOT WOUNDS; NOT STAB WOUNDS. WHAT DO WE DO? DO WE LITIGATE THE MERITS OF THOSE TWO CASES, LITIGATE THE MERITS OF THE 6498 THAT THE DEFENSE DOESN'T HAVE ANY EVIDENCE TO SUGGEST HE DID ANYTHING IMPROPERLY? OR DO WE LITIGATE THE MERITS OF WHAT HE DID IN THIS CASE, AND FOCUS, AS I BELIEVE WE CAN, ON WHAT THE LITERATURE SHOWS, WHAT THE RESEARCH MATERIAL SHOWS, AND WHAT OTHER PEOPLE WHO PRACTICE IN THE AREA BELIEVE WITH RESPECT TO THESE ISSUES, AS WELL AS DR. GOLDEN'S VIEW. SO BOTTOM LINE, YOUR HONOR, IS HINSON IS APPOSITE, NOT INAPPOSITE. THE FEDERAL CASE IS OBVIOUSLY NOT A RULING THAT REALLY REFLECTS WHAT THE TRUE STATE OF THE LAW IS THAT THEY CITE FOR THEIR PROPOSITION THAT THIS EVIDENCE IS ADMISSIBLE, PAST MEDICAL MALPRACTICE COMPLAINTS, AND THE EVIDENCE SHOULD BE EXCLUDED SO THAT WE CAN FOCUS ON WHAT IS IMPORTANT AND LET THE JURY MAKE AN HONEST CALL WHATEVER WAY IT IS, BECAUSE I WON'T BE HERE AT THE END OF THE CASE WHEN IT IS ARGUED AND THERE ARE OTHER PEOPLE IN THIS OFFICE THAT HAVE A LOT OF INTEREST IN HOW IT COMES OUT. BUT I'M GOING TO BE PERFECTLY CANDID WITH THIS COURT, SINCE I'M NOT ARGUING THE CASE, ONCE I'M DONE, I'M OUT OF HERE, AND IT IS NOT SOON ENOUGH FOR ME. I WOULD HAVE PREFERRED MR. HODGMAN'S HEALTH HAD PERMITTED HIM TO BE DOWN HERE. SO I DON'T CARE WHICHEVER WAY THE JURY GOES AS LONG AS THEY MAKE AN HONEST DECISION ON THE EVIDENCE AND NOT BE MISLED. SO THE LAST THING I LEAVE YOU WITH IS JUST I HAVE CONSIDERED HOW SOME OF THESE WITNESSES MUST HAVE FELT AFTER THEY LEFT THEIR EXPERIENCE AS WITNESSES IN THIS CASE. AND YOU KNOW, I GOT A FEELING MR. KAELIN IS NOT GOING TO SEND MS. CLARK A CHRISTMAS CARD UNLESS HE DOES SO BECAUSE HE HEARS SOME D.A. MAKING A COMMENT THAT HE WOULDN'T DO SO AND HE WILL SHOW OTHERWISE. AND THERE ARE OTHER WITNESSES WHO I'M SURE FEEL THAT THEY WERE EXCORIATED BY THE DEFENSE IN CROSS-EXAMINATION AND IN AN UNFAIR WAY. DO WE HONOR THE PROFESSION? DO WE HONOR THE PRACTICE OF LAW AND WHAT THE LAW IS SUPPOSED TO STAND FOR? IF WE DEVIATE IN THAT, THESE LITTLE TRIBUTARIES OF IRRELEVANT BALONEY, I SUGGEST THAT IF THE DEFENSE CAN PROVE THAT DR. GOLDEN MADE MISTAKES THAT SIGNIFICANTLY IMPACTED ON ANY ISSUE IN THIS CASE, THEY HAVE GOT THE RESOURCES TO BRING IN SOME TOP GUNS TO TRY AND SHOW THAT AND WE WILL CROSS-EXAMINE THEM AND TEST THEIR ABILITY. ONE LAST THING, I'M SORRY, THAT I FORGOT, BECAUSE I THINK IT IS A BIBLE -- I DO NOT HOLD MYSELF AS AN EXPERT ON THE BIBLE, BUT I BELIEVE THERE IS A PHRASE THAT SOMETHING TO THE EFFECT "LET HE WHO HAS NOT SINNED CAST THE FIRST STONE." DR. BADEN, OUR FOREMOST PATHOLOGIST, ACCORDING TO MR. COCHRAN, HAS MADE A FEW MISTAKES OF HIS OWN, AS THE EVIDENCE WOULD SHOW. LET ME FOCUS ON ONE THAT I THINK MAY BE RELEVANT, IF THE COURT BELIEVES DR. GOLDEN'S MISTAKES ARE RELEVANT. DR. BADEN, WHEN HE WAS IN NEW YORK AS A MEDICAL EXAMINER, SIGNED OFF ON A DEATH OF AN ALCOHOLIC --
WELL, LET ME JUST INTERRUPT YOU JUST -- I DON'T REALLY WANT TO GO DOWN THAT ROAD AT THIS POINT.
OKAY. THAT'S FINE, YOUR HONOR. I THINK THE COURT CLEARLY UNDERSTANDS WHAT WE SUBMIT SHOULD BE THE REAL ISSUES AND WHY WE BELIEVE THESE EXTRANEOUS MATTERS DO NOT SERVE A SEARCH FOR THE TRUTH WHICH I HAVE ALWAYS UNDERSTOOD, AT LEAST IN OUR IZAZAGA, PROSECUTORIAL DISCOVERY TODAY IS WHERE IS A TRIAL IS INTENDED TO GO, A SEARCH FOR THE TRUTH. SO ON THAT BASIS WE BELIEVE THAT OUR MOTION IS WELL TAKEN AND IT SHOULD BE GRANTED AS IT IS SPELLED OUT.
WE, OF COURSE, ARE INTERESTED IN A SEARCH FOR THE TRUTH AS WELL AND WE SUBSCRIBE TO THE APHORISM THAT THE BEST ENGINE IN THE SEARCH FOR THE TRUTH IS CROSS-EXAMINATION. AND WHAT THIS MOTION REALLY ADDRESSES IS WHAT OPPORTUNITY THE DEFENSE WILL BE GIVEN TO CROSS-EXAMINE AN EXPERT WITNESS AS TO AREAS WITH RESPECT TO HIS QUALIFICATIONS, HIS BIAS, THE CREDIBILITY AND THE WEIGHT THAT THE JURY SHOULD GIVE TO HIS TESTIMONY. THERE ARE ESSENTIALLY TWO ITEMS OF EVIDENCE IN QUESTION HERE. FIRST, ON JULY 21, 1994, 13 DAYS AFTER HE GOT OFF OF THE WITNESS STAND IN THE PRELIMINARY HEARING OF THIS MATTER, DR. GOLDEN WAS SEEN DISPLAYING A FIREARM ON THE PREMISES OF THE LOS ANGELES COUNTY CORONER'S OFFICE AND WAS HEARD TO REMARK, "YOU KNOW, WE OUGHT TO GO OUT AND KILL NINE OR TEN OF THOSE ATTORNEYS." THE OTHER ITEM RELATES TO THE FACT THAT, AND IT IS CONCEDED, ON TWO PRIOR AUTOPSIES DR. GOLDEN MADE SERIOUS ERRORS IN EXAMINING THE CHARACTER OF WOUNDS; IN ONE CASE MISCHARACTERIZING ENTRY WOUNDS AND EXIT WOUNDS COMPLETELY BACKWARDS AND IN THE OTHER CASE INDICATING THAT A SHOT WAS FIRED FROM SEVERAL FEET AWAY WHEN IN FACT IT WAS A CONTACT WOUND. NOW, WITH RESPECT TO ALL OF THIS EVIDENCE, WHAT WE ARE TALKING ABOUT IS THE WEIGHT AND THE CREDIBILITY THAT THE JURY IS GOING TO GIVE TO THE TESTIMONY OF DR. GOLDEN WITH RESPECT TO SOME VERY KEY ISSUES IN THIS CASE, INCLUDING THE TIME OF DEATH, INCLUDING THE NATURE OF THE WOUNDS, WHETHER THE WOUNDS INDICATE THAT THEY WERE MADE BY TWO DIFFERENT WEAPONS, AS DR. GOLDEN INDICATED IN HIS PRELIMINARY TESTIMONY. AND WHEN ULTIMATELY WHAT WE WERE JUST TREATED TO REALLY WAS AKIN TO WHAT WE ARE GOING TO HEAR IN CLOSING ARGUMENTS. I KNOW MR. KELBERG INDICATES HE WON'T BE HERE FOR THE CLOSING ARGUMENT, BUT I THINK WE GOT A PRETTY GOOD PREVIEW OF WHAT WE CAN EXPECT WHEN THE JURY IS ASKED TO WEIGH THE CREDIBILITY OF OPPOSING EXPERT WITNESSES. AND I ASSUME THAT YOUR HONOR WILL INSTRUCT THE JURY IN CONFORMITY WITH SECTION 2.80 OF THE CALJIC INSTRUCTIONS, THAT: "YOU MAY CONSIDER THE OPINION, WITH THE REASONS GIVEN FOR IT, IF ANY, BY THE EXPERT WHO GIVES THE OPINION. YOU MAY ALSO CONSIDER THE QUALIFICATIONS AND CREDIBILITY OF THE EXPERT. YOU ARE NOT BOUND TO ACCEPT AN EXPERT OPINION AS CONCLUSIVE, BUT SHOULD GIVE TO IT THE WEIGHT TO WHICH YOU FIND IT TO BE ENTITLED." NOW, THE ONLY GUIDE THAT THE JURY IS GOING TO HAVE TO APPROACH THAT FUNCTION OF DETERMINING WHAT WEIGHT THEY SHOULD GIVE TO THE OPINIONS OF THE EXPERTS IS WHAT THEY HEARD IN CROSS-EXAMINATION OF THOSE EXPERTS WITH RESPECT TO THEIR QUALIFICATIONS AND WITH RESPECT TO THEIR CREDIBILITY. AND THE EVIDENCE CODE CLEARLY RECOGNIZES THAT WHEN WE ARE DEALING WITH EXPERT WITNESSES WE HAVE TO TEST THEIR CREDIBILITY IN WAYS THAT WE DON'T TEST THE CREDIBILITY OF NORMAL WITNESSES. SECTION 721 OF THE EVIDENCE CODE PROVIDES THAT: "A WITNESS TESTIFYING AS AN EXPERT MAY BE CROSS-EXAMINED TO THE SAME EXTENT AS OTHER WITNESSES, AND IN ADDITION, MAY BE FULLY CROSS-EXAMINED AS TO HIS QUALIFICATIONS, THE SUBJECT TO WHICH HIS EXPERT TESTIMONY RELATES, AND THE MANNER UPON WHICH HIS OPINION IS BASED AND THE REASONS FOR HIS OPINION." AND THE CALIFORNIA CASES MAKE IT QUITE CLEAR IN APPLYING THAT RULE THAT WE GIVE THE GREATEST AND WIDEST LATITUDE TO THE CROSS-EXAMINATION OF EXPERT WITNESSES, MORE THAN WE DO IN THE CASE OF ANY OTHER WITNESS. NOW, MR. KELBERG REPEATEDLY MISCHARACTERIZES THE NATURE OF THIS EVIDENCE AS BAD CHARACTER EVIDENCE AND THAT IS SIMPLY IS NOT THE PRINCIPLE GROUNDS OF RELEVANCE, ALTHOUGH EVEN ON THAT ISSUE HIS ARGUMENT IS SIMPLY INCORRECT. HE IS ARGUING THAT THE ONLY BAD CHARACTER THAT CAN BE USED TO ATTACK A WITNESS IS A FELONY CONVICTION AND THAT IS SIMPLY NOT TRUE ANY MORE IN THE WAKE OF PROPOSITION 8 WHICH PROVIDES THAT ALL RELEVANT EVIDENCE IS ADMISSIBLE.
ALL RIGHT. WELL, THE THEORY ON WHICH THIS EVIDENCE IS GOING TO BE OFFERED IS NOT THAT IT IS EVIDENCE OF DR. GOLDEN'S BAD CHARACTER, AND THAT THE JURY SHOULD DISBELIEVE HIM BECAUSE HE IS A BAD MAN WHO DOESN'T CONFORM TO THE REGULATIONS ABOUT BRINGING FIREARMS TO HIS PLACE OF EMPLOYMENT.
DEAN UELMEN, LET'S CUT TO THE CHASE. WHAT IS INTERESTING ABOUT THIS IS AN EXPRESSION OF BIAS AGAINST PERHAPS THESE ATTORNEYS AND A DEMONSTRATION OF PROFESSIONAL INCOMPETENCE.
WELL, THE -- LET ME ADDRESS THOSE SEPARATELY. FIRST OF ALL, THE EXPRESSION OF BIAS. IT IS MORE THAN JUST AN EXPRESSION OF BIAS. I THINK IT IS RELEVANT TO BOTH 780(F) WHICH RELATES TO BIAS AND HOSTILITY, AND 780(J) WHICH RELATES TO AN ATTITUDE TOWARD THE GIVING OF TESTIMONY WHICH DOESN'T NECESSARILY HAVE TO RELATE TO A SPECIFIC FEELING OF HOSTILITY OR FAVOR OF ONE SIDE OR THE OTHER. 780(J) ADDRESSES THE MORE GENERAL ATTITUDE ABOUT THE GIVING OF TESTIMONY. NOW, WHAT -- WHAT MR. KELBERG IS SAYING ESSENTIALLY IS WE HAVE AN EXPLANATION FOR WHAT DR. GOLDEN DID. OUR EXPLANATION IS THAT ALL HE WAS EXPRESSING IS GENERAL ANIMOSITY TOWARD THE LEGAL PROFESSION IN GENERAL OR PERHAPS HE WAS -- HE WAS MAKING A JOKE. WELL, THAT IS AN EXPLANATION THAT SHOULD COME FROM DR. GOLDEN. WE CERTAINLY HAVE A GOOD FAITH BASIS TO ASK HIM WHAT HE MEANT BY A STATEMENT ABOUT "WE OUGHT TO GO OUT AND KILL NINE OR TEN OF THOSE ATTORNEYS." WE THINK THERE IS AMPLE INDICATION IN THE RECORD THAT AT THE TIME THAT STATEMENT WAS MADE IT WAS SHORTLY AFTER DR. GOLDEN HAD BEEN SUBJECTED TO CROSS-EXAMINATION. WE HAVE INFORMATION, NOT REFLECTED IN THESE STATEMENTS, THAT AT THE TIME THIS INCIDENT OCCURRED DR. GOLDEN MENTIONED MR. SHAPIRO BY NAME. WE KNOW THAT AT THE VERY MOMENT THIS STATEMENT WAS MADE DR. GOLDEN WAS BEING SUBJECTED TO INTENSE MEDIA SCRUTINY, THAT A TELEVISION SPECIAL WAS BEING PREPARED ABOUT DR. GOLDEN AND HIS -- HIS COMPETENCE IN A LONG SERIES OF CASES, SO THERE IS AMPLE REASON FOR US -- IT IS NOT PARANOIA, YOUR HONOR, FOR US TO BELIEVE THAT DR. GOLDEN WAS TALKING ABOUT US WHEN HE SAID, "I OUGHT TO GO OUT AND SHOOT NINE OR TEN OF THOSE ATTORNEYS," THAT THOSE ATTORNEYS ARE THE NINE OR TEN ATTORNEYS WHO ARE ENGAGED IN REPRESENTING MR. SIMPSON IN THE DEFENSE OF THIS CASE. BUT EVEN IF WE CAN CHARACTERIZE THIS AS SOME BROADER HOSTILITY ABOUT ATTORNEYS IN GENERAL, WE BELIEVE THERE IS AMPLE BASIS TO CONCLUDE THAT THAT HOSTILITY ARISES FROM THE ROLE THAT DR. GOLDEN PLAYS AS AN EXPERT WITNESS AND HIS CROSS-EXAMINATION IN THE COURSE OF PRESENTING HIS OPINIONS.
WHAT IS YOUR RESPONSE TO MR. KELBERG'S ARGUMENT REGARDING 352 AND 5TH AMENDMENT PROBLEMS?
WELL, FIRST OF ALL, WE DON'T BELIEVE THE 5TH AMENDMENT IS A SERIOUS PROBLEM FOR THE PROSECUTION. THEY HAVE AVAILABLE TO THEM IMMUNITY IF DR. GOLDEN INSISTS THAT HE IS NOT GOING TO TESTIFY IN THIS CASE. BECAUSE HIS TESTIMONY MAY INCRIMINATE HIM OF A CRIMINAL OFFENSE, THERE ARE NUMEROUS WAYS THAT THE -- THAT THE PEOPLE CAN DEAL WITH THAT, INCLUDING A STRATEGY GRANT OF IMMUNITY.
BUT THAT IS COMPLETELY WITHIN THEIR DISCRETION, AND TACTICALLY I WOULD BE ASTONISHED IF THEY DID THAT, SO THAT DOESN'T HELP US MUCH.
WELL, YOUR HONOR, WHETHER THERE IS ANY REALISTIC INTEREST IN THE PROSECUTION OF DR. GOLDEN, I THINK CAN BE GLEANED FROM THE RECORDS THAT HAVE ALREADY BEEN SUBMITTED TO YOU. YOU HAVE AN OPINION ALREADY RENDERED BY THE CITY ATTORNEY'S OFFICE, INCIDENTLY WITHOUT EVEN TALKING TO DR. GOLDEN, INDICATING THAT THEY WERE NOT GOING TO PURSUE PROSECUTION OF THIS CASE. SO WHETHER THERE IS ANY REALISTIC FEAR OF SELF-INCRIMINATION OR WHETHER THAT WOULD SIMPLY BE USED AS SOME SORT OF TACTICAL TOOL TO AVOID CROSS-EXAMINATION OF THIS WITNESS, IT CAN BE DEALT WITH THROUGH THE DEVICE OF IMMUNITY, BUT I DON'T EVEN THINK WE HAVE TO DEAL WITH IT UNTIL THERE HAS BEEN AN INVOCATION OF THE PRIVILEGE. AND THERE IS NO INDICATION IN ANYTHING THAT HAS BEEN PRESENTED TO THE COURT THAT THERE IS ANY RISK OF SELF-INCRIMINATION, MUCH LESS ANY RISK THAT THE WITNESS WILL REFUSE TO TESTIFY ON THAT GROUND.
BUT DON'T WE HAVE AN ETHICAL ISSUE TO BROACH BEFORE WE GET TO THAT, THAT IF WE HAVE A SUSPICION THAT THE WITNESS MAY CLAIM THE 5TH WE HAVE A PROBLEM.
WELL, WE CAN CALL HIM OUT OF THE PRESENCE OF THE JURY AND ASCERTAIN WHETHER HE IS GOING TO INVOKE THE PRIVILEGE SO IT ISN'T DONE IN THE PRESENCE OF THE JURY, BUT I BELIEVE THAT IS THE ONLY ETHICAL PROBLEM WE HAVE.
352 ARGUMENT. 352 OF COURSE HAS TO BE APPROACHED FROM THE THEORY OF THE IMPORTANCE OF THIS EVIDENCE TO SHOW BIAS, AND YOUR HONOR HAS ALREADY ADDRESSED THAT IN THE CONTEXT OF DETECTIVE FUHRMAN'S TESTIMONY, THE EXTENT TO WHICH 352 IS APPROPRIATE WHERE THE RELEVANCE OF THE CROSS-EXAMINATION GOES DIRECTLY TO THE BIAS OF THE WITNESS. AND WE BELIEVE THAT WHETHER THE BIAS ARISES FROM RACIAL ANIMOSITY OR WHETHER IT ARISES TO ANIMOSITY TO ANY SORT OF PROFESSIONAL GROUP IT DOESN'T MAKE ANY DIFFERENCE.
WELL, WE SEEM TO BE PLAGUED WITH JOKES IN THIS CASE, AND FRANKLY, EVEN IF THIS WAS INTENDED AS A JOKE, A CORONER WHO WOULD MAKE A JOKE ABOUT KILLING NINE OR TEN LAWYERS ONE YEAR AFTER THE TRAGEDY OF WHAT HAPPENED IN SAN FRANCISCO WHEN A GUNMAN WENT INTO THE OFFICES OF A LAW FIRM AND SHOT EIGHT OR NINE PEOPLE, IT IS JUST NOT A FUNNY JOKE. AND IF IT IS A JOKE, LET THE JURY HEAR IT AND LET THEM DECIDE WHAT BEARING THAT HAS ON WHETHER THEY SHOULD GIVE WEIGHT AND CREDIBILITY TO THE OPINIONS OF THIS EXPERT WITNESS. NOW, WITH RESPECT TO THE -- THE PRIOR MISTAKES, WHICH ARE CONCEDED, THEY OF COURSE GO DIRECTLY TO THE QUESTION OF THE QUALIFICATIONS OF THIS WITNESS TO GIVE AN EXPERT OPINION. WE HAVE TO NOTE THAT ONE OF THE KEY AREAS IN WHICH DR. GOLDEN IS GOING TO BE TESTIFYING IS HIS EXAMINATION OF THE WOUNDS OF THE VICTIMS AND RENDERING OPINIONS ABOUT WHETHER THOSE WOUNDS ARE CONSISTENT WITH A PARTICULAR KNIFE, WHICH HE WAS GIVEN BY DETECTIVE VANNATTER, WHETHER THEY ARE CONSISTENT WITH MORE THAN ONE KNIFE AND WHETHER THEY ARE DIFFERENT MORPHOLOGICAL WOUNDS.
LET ME TELL YOU MY TWO CONCERNS HERE. MY TWO CONCERNS ARE APPLES AND ORANGES, GUNSHOT WOUNDS VERSUS CUTTING WOUNDS. AND MY SECOND CONCERN IS THE ARGUMENT BROUGHT UP BY MR. KELBERG. LET'S ASSUME THAT DR. GOLDEN IN HIS CAREER HAS PERFORMED APPROXIMATELY SIX OR 7000 AUTOPSIES AND THE PRIOR CONSISTENT STATEMENTS ISSUE THAT HE RAISES. DO I THEN HAVE TO -- IF I ALLOW YOU TO GO INTO THAT, THEN DO I HAVE TO ALLOW THE PROSECUTION TO THEN BRING IN EVIDENCE OF 6000 OTHER AUTOPSIES THAT HE HAS DONE WHERE NOTHING HAS BEEN WRONG?
WELL, YOUR HONOR, YOU KNOW VERY FREQUENTLY AN EXPERT WHO IS ON A WITNESS STAND TESTIFYING AS TO AN EXPERT OPINION IS ASKED, "MR. EXPERT, HAVE YOU EVER MADE A MISTAKE?" I'M SURE YOU HAVE HEARD THAT QUESTION POSED A HUNDRED TIMES AND I'M SURE YOU'VE HEARD THE SAME ANSWER ALL 100 TIMES. THE EXPERT SAYS, "WELL, NOT THAT I AM AWARE OF." HERE WE HAVE TWO CONCEDED MISTAKES. WE HAVE AN EXPERT WHO HAS ADMITTED THAT ON TWO PRIOR OCCASIONS HE RENDERED AN OPINION AND THAT OPINION WAS WRONG. AND HOW WAS THE OPINION, THE WRONG OPINION, CORRECTED? BY AN ADDENDUM TO THE AUTOPSY REPORT. HOW MANY OF THE 6500 AUTOPSIES PERFORMED BY DR. GOLDEN HAVE ADDENDUMS ATTACHED TO HIS REPORT IN WHICH HE MAKES CORRECTIONS IN HIS CONCLUSIONS? WE KNOW ONE OF THEM DOES, AND THAT IS THE AUTOPSY REPORT IN THIS VERY CASE IN WHICH NUMEROUS ADDENDUMS HAVE BEEN ATTACHED, AND WE ARE GOING TO HEAR, I'M CONFIDENT, DR. GOLDEN SUGGESTING THAT ON RECONSIDERATION SOME OF THE OPINIONS HE PREVIOUSLY RENDERED MAY NOT HAVE BEEN CORRECT, THAT HE NOW HAS CHANGED HIS OPINION. WHEN THE JURY WEIGHS WHAT CREDIBILITY THEY SHOULD GIVE TO THIS DOCTOR'S OPINIONS, THEY ARE ENTITLED TO KNOW THAT ON TWO PRIOR OCCASIONS HE WAS WRONG AND IT WAS CONCEDED THAT HE WAS WRONG. SO WE ARE NOT FISHING AROUND THROUGH LOTS OF PRIOR AUTOPSIES LOOKING FOR MISTAKES. WE KNOW GOING IN THAT THERE ARE TWO CONCEDED MISTAKES THAT THE JURY SHOULD KNOW ABOUT, AND THOSE MISTAKES ARE RELEVANT MISTAKES. THEY ARE MISTAKES THAT RELATE DIRECTLY TO THE EXAMINATION OF WOUNDS AND THE NATURE OF WOUNDS. NOW, DR. GOLDEN MAY HAVE AN EXPLANATION. HE MAY SAY, WELL, I MAY BE INCOMPETENT IN EXAMINING FIREARM WOUNDS, BUT I'M NOT INCOMPETENT IN EXAMINING KNIFE WOUNDS. THAT IS FINE. THE JURY SHOULD HEAR THAT EXPLANATION AND THEY SHOULD WEIGH IT IN TERMS OF DECIDING WHAT CREDIBILITY AND WEIGHT THEY WANT TO GIVE TO DR. GOLDEN'S OPINION. OUR EXPERTS WILL SUGGEST THAT THE SAME KINDS OF SKILLS ARE BEING EMPLOYED IN THE EXAMINATION OF WOUNDS THAT PEOPLE ORDINARILY AREN'T EXPERTS JUST IN GUNSHOT WOUNDS OR KNIFE WOUNDS, THAT A PATHOLOGIST SHOULD BE AN EXPERT IN THE EXAMINATION OF ANY WOUND, AND HIS INABILITY TO DISTINGUISH AN EXIT WOUND FROM AN ENTRY WOUND OR TO IDENTIFY A CONTACT WOUND GOES DIRECTLY TO THE CREDIBILITY AND WEIGHT WE SHOULD GIVE TO HIS OPINIONS ABOUT WHAT KIND OF -- OF KNIFE SLASHING PRODUCED A PARTICULAR WOUND, WHAT KIND OF WEAPON PRODUCED IT, OR WHETHER MORE THAN ONE WEAPON MAY HAVE PRODUCED THE WOUND IN THIS PARTICULAR CASE. THESE ARE AREAS THAT WE SHOULD EXPLORE ON CROSS-EXAMINATION. WHAT WE ARE TALKING ABOUT HERE IS THE RIGHT TO CROSS-EXAMINE AND THEN WE WILL GET TO THE QUESTION OF ARGUING TO THE JURY, AS MR. KELBERG WAS DOING, ABOUT WHETHER THEY SHOULD GIVE GREATER WEIGHT TO DR. GOLDEN OR TO DR. BADEN OR TO OTHER EXPERTS WHO MAY TESTIFY IN THIS CASE. BUT THAT FUNCTION IS A FUNCTION RESERVED TO THE JURY, AND IF YOUR HONOR IS GOING TO TELL THAT JURY, IN YOUR INSTRUCTIONS, GIVE TO THE EXPERT'S OPINION WHATEVER WEIGHT YOU THINK THEY DESERVE, THEN THE JURY IS ENTITLED TO HEAR CROSS-EXAMINATION ABOUT THESE HIGHLY RELEVANT ISSUES.
DOES THE COURT WISH TO HEAR A BRIEF RESPONSE OR IS THE COURT SUFFICIENTLY EDUCATED ON THIS ISSUE THAT IT HAS HEARD ENOUGH?
I DON'T FEEL COMPELLED TO DO ANYTHING IN THIS COURT, YOUR HONOR, OTHER THAN TO HOPEFULLY BE COURTEOUS.
KEY QUOTEALL RIGHT. THANK YOU, SIR. COUNSEL, WE HAVE USED UP -- WE HAVE ONE OTHER ISSUE, THE ISSUE AS TO THE USE OF THE AUTOPSY PHOTOGRAPHS, AND I DID RECEIVE FROM THE PROSECUTION A COMPLETE SET OF AUTOPSY PHOTOGRAPHS THAT ARE PLACED INTO TWO GROUPS: PHOTOGRAPHS THAT THEY DO NOT WISH TO USE AND THOSE THAT THEY DO WISH TO USE. HOWEVER, THE -- I MUST SAY THAT THE LETTER THAT ACCOMPANIED THE PHOTOGRAPHS WAS NOT -- DID NOT TELL ME FOR WHAT PURPOSE THE PROSECUTION WISHED TO USE PARTICULAR PHOTOGRAPHS, AND MY GUESS AT THIS POINT IS THAT WE WILL NOT SEE THE AUTOPSY TESTIMONY FOR QUITE SOME TIME, PERHAPS THREE TO FOUR WEEKS, IF I AM LUCKY. DO WE AGREE ON THIS? AND DEAN UELMEN, I UNDERSTAND YOU HAVE TO GO BACK TO STANFORD.
WELL, I WAS GOING TO ARGUE THE SANCTIONS ISSUE, SO I MAY REMAIN OVER UNTIL TOMORROW MORNING TO DO THAT.
ALL RIGHT. DO YOU WANT TO ADDRESS THE SANCTIONS ISSUE? CAN YOU DO IT IN FIVE OR TEN MINUTES?
THAT IS WHY YOU SET IT FOR TOMORROW MORNING, SANCTIONS FOR LATE DISCLOSURE ON THE VIDEOTAPE.
I WILL BE ABLE TO REMAIN UNTIL TOMORROW MORNING. WITH RESPECT TO THE AUTOPSY PHOTOS, WE BELIEVE THAT THE COURT NEEDS TO ENGAGE IN THE 352 BALANCE WITH RESPECT TO EACH INDIVIDUAL PHOTO AND THAT PERHAPS THIS COULD BEST BE DONE IN CHAMBERS WHERE BOTH COUNSEL HAVE AN OPPORTUNITY TO ADDRESS THE ADMISSIBILITY OF EACH PHOTO AND THE AVAILABILITY OF ALTERNATIVE PHOTOS WHICH MAY NOT CREATE THE SAME PROBLEMS.
I MIGHT ADD AS WELL, IT WOULD BE TREMENDOUSLY HELPFUL TO ME IF I HAD A ONE-SENTENCE EXPLANATION AS TO EACH PHOTOGRAPH, WHY IT IS RELEVANT OR WHY YOU SEEK TO INTRODUCE IT OR AS TO WHAT ISSUE, BECAUSE TO MERELY GIVE ME A LIST AND EXPECT ME TO FIGURE OUT -- I MEAN, I CAN GUESS AS TO A LOT OF THESE THINGS, BUT SOME OF THEM, THE INTENT MAY NOT BE CLEAR TO ME, SO IT WOULD HELP ME TREMENDOUSLY IF I HAD A ONE-SENTENCE EXPLANATION AS TO EACH ONE OF THESE PHOTOGRAPHS.
THAT DOES NOT PRESENT A PROBLEM FOR US TO DO, YOUR HONOR. OBVIOUSLY WE ARE NOT GOING TO DO THAT TODAY. AND PERHAPS WE CAN COORDINATE A SCHEDULE WITH DEAN UELMEN THAT IS CONVENIENT TO HIM, TO THE COURT. I THINK THE COURT IS CORRECT, THAT YOU WON'T HAVE TO SEE ME AGAIN, AT LEAST FOR A FAIR AMOUNT OF TIME, SO PERHAPS WE CAN JUST PUT IT OVER. OUR PRIMARILY PURPOSE IN BRINGING THE MOTION WAS TO ALLOW US TO KNOW WHICH PHOTOGRAPHS WE WERE GOING TO BE PERMITTED TO USE SO THAT WE CAN PREPARE THE APPROPRIATE EXHIBITS, RATHER THAN AT THE LAST MINUTE. AS THE COURT PROBABLY REMEMBERS FROM ITS DAYS OF TRYING CASES, GETTING THE PHOTO MOUNTS OUT AT THE LAST SECOND AND STICKING PHOTOS ON A BOARD --
I WOULD LIKE AN ADDITIONAL BRIEFING FROM THE PROSECUTION AS TO EACH INDIVIDUAL PHOTOGRAPH THEY INTEND ON USING.
DOES THE COURT HAVE A TIME FRAME WHEN THE COURT WANTS TO HAVE THE HEARING HELD ON THIS?
ALL RIGHT. THEN WE WILL SCHEDULE IT IN ACCORDANCE WITH DEAN UELMEN'S SCHEDULE, BUT I HAVE A FEELING WE WILL BE MIRED IN THIS STUFF FOR A WHILE. ALL RIGHT. ANYTHING ELSE, COUNSEL?
THERE IS NO QUESTION MISTAKES WERE MADE AND WE ARE GOING TO BRING OUT THOSE MISTAKES. THERE IS NOTHING TO HIDE.
DR. GOLDEN WAS SEEN DISPLAYING A FIREARM ON THE PREMISES OF THE LOS ANGELES COUNTY CORONER'S OFFICE AND WAS HEARD TO REMARK, 'YOU KNOW, WE OUGHT TO GO OUT AND KILL NINE OR TEN OF THOSE ATTORNEYS.'
SO WE WANT TO PUT LAWYERS IN A PROTECTED CLASS LIKE WE DO RACE?
I DON'T FEEL COMPELLED TO DO ANYTHING IN THIS COURT, YOUR HONOR, OTHER THAN TO HOPEFULLY BE COURTEOUS.
WE HAVE INFORMATION, NOT REFLECTED IN THESE STATEMENTS, THAT AT THE TIME THIS INCIDENT OCCURRED DR. GOLDEN MENTIONED MR. SHAPIRO BY NAME.