BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS PRESENT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED. THE JURY IS NOT PRESENT. WE HAVE A NUMBER OF MATTERS TO TAKE UP BEFORE WE PROCEED WITH THE JURY THIS MORNING. FIRST THE SANCTIONS MOTION BROUGHT BY THE DEFENSE CONCERNING THE LATE DISCLOSURE OF THE VIDEOTAPE THAT WAS DISCLOSED TO THE DEFENSE ON MARCH THE 24TH. AND DEAN UELMEN, I UNDERSTAND YOU ARE GOING TO ADDRESS THAT ISSUE.

YES, YOUR HONOR.

COUNSEL, WHAT CONCERNS THE COURT HERE ARE TWO THINGS:

ONE, ANY CITATION TO THE RECORD WHERE TAPE REQUESTS ARE SPECIFICALLY REQUESTED AND REPRESENTATIONS ARE MADE BY REPRESENTATIVES OF THE PEOPLE REGARDING THE EXISTENCE OR NONEXISTENCE OF THESE TAPES. AND I WOULD LIKE TO HEAR SOME COMMENT BY YOU AS TO THE MATERIALITY OF THE TAPE AND WHETHER OR NOT -- WHETHER OR NOT THERE IS ANY PREJUDICE SUFFERED BY THE DEFENDANT AS A RESULT OF THE LATE DISCLOSURE. I AM INTERESTED IN THOSE TWO ISSUES.

YOUR HONOR, THERE ARE ACTUALLY THREE ITEMS OF CONCERN TO THE DEFENSE WITH RESPECT TO OUR REQUESTS FOR SANCTIONS. AT THE CLOSE OF COURT YESTERDAY, IT WAS OFF THE RECORD, BUT WE NOTED THE PROBLEM THAT AROSE WITH RESPECT TO MR. GOLDBERG'S EXAMINATION OF DENNIS FUNG, AND WE WERE ABLE TO LOCATE THE TRANSCRIPT REFERENCE. ON OCTOBER 5TH --

YOUR HONOR, I'M SORRY, BUT IF THERE IS GOING TO BE SOMETHING INVOLVING MR. GOLDBERG'S QUESTIONING OF THE WITNESS, MAY I HAVE A MOMENT TO GET MR. GOLDBERG DOWN HERE OR WATCHING UPSTAIRS TO MAKE SURE NOTHING IS MISREPRESENTED, SINCE I WASN'T HERE AND I DON'T KNOW WHAT HE WAS TALKING ABOUT?

WELL, COUNSEL, I CAN'T WAIT TO CONDUCT THESE PROCEEDINGS FOR THE ATTORNEYS TO SHUFFLE BACK AND FORTH.

YOUR HONOR, I DON'T KNOW IF THERE WAS ANY NOTICE THAT MR. UELMEN WAS GOING TO ARGUE ANYTHING WITH REGARD TO SANCTIONS.

WELL, WHEN WE LEFT YESTERDAY AFTERNOON IT WAS BROUGHT UP THAT REFERENCE WAS MADE TO ITEMS THAT THE COURT HAD SUPPRESSED AT THE 1538.5, SO CLEARLY THERE IS GOING TO BE SOME SEVERE SANCTION.

ALL RIGHT, YOUR HONOR. I WILL -- I THINK I ACTUALLY MAY BE MORE FAMILIAR THAN MR. GOLDBERG WITH THE SUPPRESSION MOTIONS.

ALL RIGHT. BUT I AM INTERESTED IN TALKING ABOUT THE TAPE SANCTIONS FIRST.

ALL RIGHT. I CAN -- I CAN ADDRESS THAT ISSUE FIRST, YOUR HONOR, AND THEN ADDRESS THE QUESTION OF THE SUPPRESSION AND THE -- ALSO THE INVESTIGATION WITH RESPECT TO THE SHOES. THE VIDEOTAPE WAS FIRST REVEALED ON MARCH 21ST OR 24TH, I'M SORRY, AND OF COURSE THERE WAS A TAPE THAT WAS MADE ON JUNE 13TH. THERE WERE A NUMBER OF INFORMAL REQUESTS THAT WERE NOT ON THE RECORD WITH RESPECT TO THE PRODUCTION OF THIS PARTICULAR VIDEOTAPE, AND AT THE TIME OF THE LATE PRODUCTION OF THE VIDEOTAPE-RECORDED OF MR. SIMPSON BIDDING FAREWELL TO THE BROWN FAMILY, CONCERNS WERE ALSO AGAIN RAISED WITH RESPECT TO THE EXISTENCE OF ANY OTHER VIDEOTAPES, AND A SPECIFIC REQUEST WAS MADE AT THAT TIME, I BELIEVE ON THE RECORD, FOR ANY OTHER VIDEOTAPES IN THE PEOPLE'S POSSESSION THAT HAD NOT BEEN TURNED OVER. I THINK YOU NEED TO PUT THIS IN THE CONTEXT, YOUR HONOR, OF THE IMPORTANCE THAT VIDEOTAPE EVIDENCE HAS ASSUMED IN THIS TRIAL. WE SAW A VERY GOOD EXAMPLE OF THAT WITH RESPECT TO THE PRIOR INCIDENT INVOLVING THE VIDEOTAPE OF THE NIGHT OF THE RECITAL AT THE JUNIOR HIGH SCHOOL WHERE WITNESSES HAD TESTIFIED THAT MR. SIMPSON THAT EVENING WAS HOSTILE AND UNCOMMUNICATIVE, AND THEN WE SAW A VIDEOTAPE FROM WHICH WE COULD MAKE OUR OWN JUDGMENT AND WHICH HE APPEARED TO BE VERY FRIENDLY IN BIDDING AN AFFECTIONATE FAREWELL TO HIS FAMILY AND MEMBERS OF THE BROWN FAMILY. SO THIS EVIDENCE HAS CRUCIAL SIGNIFICANCE IN TERMS OF ALLOWING THE JURY AND THE COURT TO MAKE THEIR OWN JUDGMENTS WITHOUT HAVING DESCRIPTIONS OF EVENTS FILTERED THROUGH THE TESTIMONY OF WITNESSES WHO MAY HAVE BIASES ONE WAY OR THE OTHER. AND IN LIGHT OF THE RECORD OF THE PRIOR FAILURE TO DISCLOSE A VIDEO, THE FAILURE OF THE PROSECUTION TO PRODUCE THIS PARTICULAR VIDEOTAPE UNTIL MARCH 24TH TAKES ON A SPECIAL SIGNIFICANCE, ESPECIALLY THE FACT THAT IT APPEARED AT A POINT IN TIME WHEN IT SOMEHOW SEEMED TO THE PROSECUTION'S ADVANTAGE TO USE THE TAPE. SO THE EXPLANATION THAT THIS WAS INADVERTENTLY MISLAID IS A SOMEWHAT SUSPICIOUS ONE IN VIEW OF THE FACT THAT SUDDENLY IT IS RELOCATED AND BROUGHT INTO COURT AT THE POINT IN TIME WHEN THEY FEEL THERE IS SOME EVIDENTIARY USE THAT CAN BE MADE TO BOLSTER THEIR CASE. AND OF COURSE THE DEFENSE WAS DEPRIVED OF ANY OPPORTUNITY TO USE THIS TAPE IN PRIOR ISSUES THAT WERE BEING LITIGATED BEFORE THIS COURT. AND IN A NUMBER OF RESPECTS WE BELIEVE THAT THAT IRRETRIEVABLY PREJUDICED THE DEFENSE. FIRST OF ALL, THIS TAPE WOULD HAVE BEEN OF SUBSTANTIAL USE IN LITIGATING THE MOTION TO SUPPRESS EVIDENCE BACK IN SEPTEMBER AND IT WOULD ALSO HAVE BEEN QUITE USEFUL IN CROSS-EXAMINING THE DETECTIVES IN CHARGE OF THIS INVESTIGATION, BECAUSE WE HAVE NOTED INCONSISTENCIES BETWEEN THE DESCRIPTION OF THE DISCOVERY OF THE GLOVE, FOR EXAMPLE, IN THE CLOSET OF MR. SIMPSON'S BEDROOM, AS PORTRAYED IN THE TAPE WHERE A SINGLE GLOVE WAS REMOVED, BROUGHT DOWNSTAIRS, PUT ON A TABLE AND APPEARS IN THE VIDEOTAPE. THAT IS NOT THE WAY THAT INCIDENT WAS DESCRIBED IN THE AFFIDAVIT FOR A SEARCH WARRANT WHICH WAS SUBSCRIBED TO UNDER OATH BY DETECTIVE VANNATTER BACK ON JUNE 28TH. AT THAT POINT DETECTIVE VANNATTER SAID -- AND THIS WAS THE PROBABLE CAUSE YOU WILL RECALL TO GO BACK TO MR. SIMPSON'S HOME AND EXECUTE A SECOND SEARCH WARRANT TWO WEEKS AFTER THE EXECUTION OF THE FIRST WARRANT. THE PROBABLE CAUSE INCLUDED THE ALLEGATION THAT:

"ADDITIONALLY, SINCE THE SERVICE OF THE FIRST WARRANT, OTHER OFFICERS PRESENT DURING THAT SERVICE HAVE TOLD YOUR AFFIANT THAT THEY SAW ANOTHER PAIR OF GLOVES INSIDE SIMPSON'S RESIDENCE. THESE OFFICERS HAD ALSO SEEN THE GLOVE FOUND AT THE MURDER LOCATION AND HAVE TOLD YOUR AFFIANT THAT THE GLOVES IN THE RESIDENCE APPEARED TO BE OF THE SAME TYPE AS THE ONE FROM THE CRIME SCENE.

"YOUR AFFIANT WISHES TO SEIZE THE GLOVES LEFT IN THE SIMPSON RESIDENCE BECAUSE THEY WILL TEND TO FURTHER ESTABLISH THAT THE BLOODY GLOVES RECOVERED BELONGED TO SIMPSON IN THAT HE FAVORED THIS TYPE, STYLE AND SIZE OF GLOVE.

"THESE GLOVES WERE INADVERTENTLY LEFT BEHIND AT THE SIMPSON RESIDENCE." NOW, WE BELIEVE THAT CROSS-EXAMINATION, BOTH OF DETECTIVE VANNATTER AND THE DETECTIVES INVOLVED IN FINDING THAT GLOVE, WOULD HAVE DISCLOSED ADDITIONAL MISREPRESENTATIONS IN THE AFFIDAVIT FOR THIS SECOND WARRANT IN THAT THE VIDEOTAPE REVEALS ONE GLOVE WHEREAS THE AFFIDAVIT REFERS TO A PAIR OF GLOVES. THE AFFIDAVIT SAYS THE GLOVES WERE INADVERTENTLY LEFT BEHIND WHEN WE HAVE SINCE BEEN TOLD THAT THE DETECTIVES ACTUALLY CONFERRED WITH THE DETECTIVES IN CHARGE AND MADE A DECISION NOT TO SEIZE THE GLOVE. IT WAS NOT AN INADVERTENT LEAVING BEHIND. THEY ACTUALLY DECIDED BEFORE THEY LEFT THE PREMISES THAT THEY WOULD NOT TAKE THIS GLOVE OR THESE GLOVES, IF THERE ARE TWO. SO HERE WE SEE SIGNIFICANT AREAS FOR CROSS-EXAMINATION THAT THE DEFENSE WAS DEPRIVED OF AT THE MOTION TO SUPPRESS AND IN THE CROSS-EXAMINATION OF THE DETECTIVES BECAUSE WE DID NOT HAVE THIS TAPE. WE DID NOT HAVE THE OPPORTUNITY TO SEE WHAT THIS TAPE PORTRAYS. NOW, CLEARLY THERE IS A PARALLEL I THINK BETWEEN THE FAILURE TO PRODUCE THIS TAPE AND THE FAILURE TO PRODUCE THE TAPE INVOLVED IN THE CROSS-EXAMINATION OF ROSA LOPEZ, BECAUSE IN BOTH CASES YOUR HONOR HAS BEEN PRESENTED WITH A VERY SIMILAR EXPLANATION, THAT A DETECTIVE INADVERTENTLY MISLAID THE TAPES AND THAT COUNSEL WERE NOT AWARE THAT THE TAPES WERE IN EXISTENCE AND THAT IS PRECISELY THE EXPLANATION WE ARE HEARING NOW FROM THE -- FROM THE PROSECUTION. DESPITE THAT EXPLANATION, IN THE CASE OF THE ROSA LOPEZ TAPE, YOUR HONOR CONCLUDED THAT SEVERE SANCTIONS WERE WARRANTED AND THOSE SANCTIONS INCLUDED FINES IMPOSED AGAINST BOTH LAWYERS, A REQUIREMENT OF IMMEDIATE CORRECTIVE ACTION TO CATALOGUE ALL OF THE STATEMENTS OF WITNESSES AND INDICATE WHEN THEY WERE TURNED OVER TO COUNSEL, AND A PROPOSAL TO INSTRUCT THE JURY THAT THE FAILURE TO PRODUCE THIS TAPE COULD BE CONSIDERED IN ASSESSING THE CREDIBILITY OF THE WITNESS. WE BELIEVE THAT IF THE COURT IS GOING TO BE EVENHANDED IN THE ADMINISTRATION OF SANCTIONS, THAT PRECISELY THE SAME SANCTIONS ARE WARRANTED HERE; THAT YOUR HONOR SHOULD ORDER CORRECTIVE ACTION BE IMMEDIATELY TAKEN TO REQUIRE THAT THE PROSECUTION IMMEDIATELY CATALOGUE ALL VIDEOTAPES IN THEIR POSSESSION OR IN THE POSSESSION OF THE POLICE WITH A DESCRIPTION OF THOSE TAPES AND AN ACCOUNT OF WHEN THEY WERE TURNED OVER TO THE DEFENSE. SECONDLY, WE HAVE PROPOSED A JURY INSTRUCTION THAT CLOSELY PARALLELS THE INSTRUCTION THAT YOUR HONOR PROPOSED TO GIVE WITH RESPECT TO THE TESTIMONY OF ROSA LOPEZ, INFORMING THE JURY THAT:

"THE LAWS GOVERNING CRIMINAL PROCEDURE IN CALIFORNIA REQUIRE DISCLOSURE OF EVIDENCE IN ADVANCE, THAT THE REASON THESE LAWS EXIST IS TO PROMOTE THE ASCERTAINMENT OF TRUTH TO SAVE COURT TIME AND AVOID THE NECESSITY FOR INTERRUPTIONS AND POSTPONEMENTS, THAT THE DELAY IN THE PRODUCTION OF THIS TAPE FROM JUNE 13TH UNTIL MARCH 24TH WAS A VIOLATION OF THE LAW AND THE CAUSE OF DELAYS IN THIS TRIAL DURING THE WEEK OF MARCH 27TH, AND THAT THE JURY MAY CONSIDER THE EFFECT, IF ANY, OF THIS DELAY IN DISCLOSURE UPON THE CREDIBILITY OF THE WITNESSES INVOLVED IN THE GATHERING OF EVIDENCE ON JUNE 13TH." THAT WOULD CLOSELY PARALLEL WHAT THE COURT ORDERED IN THE CASE OF THE ROSA LOPEZ TAPE. THE SECOND ISSUE THAT IS OF CONCERN TO THE DEFENSE WITH RESPECT TO SANCTIONS INVOLVES THE VERY LATE PRODUCTION, AGAIN ON MARCH 24TH, OF 238 PAGES OF INVESTIGATIVE MATERIAL RELATING TO THE PROSECUTION'S ATTEMPT TO IDENTIFY LOCATIONS IN WHICH SHOES MATCHING THE SHOEPRINT LEFT AT THE -- AT THE CRIME SCENE WERE SOLD.

THIS INVESTIGATION TOOK PLACE IN AUGUST AND SEPTEMBER OF LAST YEAR, AND APPARENTLY THE PROSECUTION DELIBERATELY DECIDED THAT THEY WOULD NOT TURN OVER ANY OF THIS INVESTIGATIVE MATERIAL UNTIL THEIR INVESTIGATION HAD BEEN COMPLETED. SO ALL AT ONCE ON MARCH 24TH THE DEFENSE IS HANDED 238 PAGES OF MATERIAL, MUCH OF WHICH IS IN A FOREIGN LANGUAGE. THERE ARE -- THERE IS CORRESPONDENCE IN THAT FILE IN JAPANESE AND ITALIAN THAT WE ARE GOING TO HAVE TO GET TRANSLATED. WE ARE GOING TO HAVE TO CONDUCT SOME FOLLOW-UP INVESTIGATION OURSELVES. AND WE BELIEVE ONCE AGAIN WE HAVE AN EXAMPLE OF THE PROSECUTION SIMPLY WITHHOLDING VITAL EVIDENCE UNTIL IT IS TOO LATE FOR THE DEFENSE TO DO ANY INVESTIGATION OF THEIR OWN. WE BELIEVE THAT AT A MINIMUM THE COURT SHOULD DELAY THE PRESENTATION OF ANY EVIDENCE RELATING TO THE IDENTIFICATION OF FOOTPRINTS UNTIL THE END OF THE TRIAL, THAT THE COURT SHOULD REQUIRE IMMEDIATE DISCLOSURE OF ANY FOLLOW-UP INVESTIGATION. WE NEED TO KNOW JUST AS QUICKLY AS POSSIBLE WHAT THE NET RESULTS OF ALL OF THIS WERE, WHETHER THEY ARE GOING TO BE PRESENTING ANY EVIDENCE IDENTIFYING THE SOURCE OF ANY -- ANY SHOES, AND WE NEED TO KNOW THAT RIGHT NOW SO WE CAN BEGIN TO PREPARE TO CROSS-EXAMINE.

DON'T YOU ALREADY KNOW THAT?

WE --

THE RESULTS OF THE FBI TESTING ON THE SHOEPRINTS WERE TURNED OVER TO YOU WITHIN A DAY OF THE COURT RECEIVING IT FROM THE FBI.

WHAT WE ARE TALKING ABOUT HERE, YOUR HONOR, IS THE EFFORT TO CONNECT THAT PARTICULAR SHOE PATTERN WITH THE SALE OF SHOES AT PARTICULAR LOCATIONS. I MEAN, THIS REALLY RELATES TO THE EFFORT OF THE PROSECUTION TO TRY TO TIE THAT SHOE TO MR. SIMPSON. WE ARE NOT AWARE OF ANY EVIDENCE THAT IN ANY WAY CONNECTS SHOES OF THIS NATURE WITH MR. SIMPSON, AND IF THEY ARE GOING TO PUT ON ANY SUCH EVIDENCE, ENGAGE IN ANY ATTEMPT OR INFERENCE TO SUGGEST THAT SHOES OF THIS TYPE WERE PURCHASED BY MR. SIMPSON, WE NEED TO KNOW ABOUT THAT AND WE NEED TO BE PREPARED TO MEET THAT EVIDENCE. AND AT THIS POINT WE HAVE SEEN NOTHING, WE HAVE HEARD NOTHING, EXCEPT THIS 238 PAGES OF MATERIAL THAT WAS TURNED OVER JUST ONE WEEK AGO. SO WE WOULD ASK AT A MINIMUM THAT THE PRESENTATION OF THIS EVIDENCE BE DELAYED AND WE BE GIVEN ANY FOLLOW-UP INVESTIGATION THAT CAME IN ITS WAKE. THE THIRD ITEM, YOUR HONOR, RELATES TO THE DIRECT EXAMINATION OF MR. FUNG AT THE CLOSE OF OUR PROCEEDINGS YESTERDAY, AND AS I MENTIONED, WE HAVE LOCATED IN THE TRANSCRIPT THE COURT'S RULING ON OCTOBER 5TH, 1995, PAGES.

'94.

PAGES 2395 TO 2396 OF THE TRANSCRIPT, AND HERE I'M READING FROM THE STATEMENT OF THE COURT:

"ALL RIGHT. SEARCH WARRANT NO. 2, ITEMS 15 AND 16, THE TICKET RECEIPT AND BAGGAGE TAG, AND I THINK MR. UELMEN WAS CORRECT, I THINK THE PROSECUTION HAS THE BURDEN AS TO THESE TWO ELEMENTS.

"MISS CLARK: THAT'S CORRECT, YOUR HONOR. WITH RESPECT TO ITEMS 15 AND 16, THE PROSECUTION WILL NOT BE SEEKING TO ADMIT THEM.

"THE COURT: ALL RIGHT. THEN WE WILL TAKE ITEMS 15 AND 16 AND NOTE THAT THEY WILL NOT BE OFFERED. THE REPRESENTATION IS THAT THEY WILL NOT BE OFFERED. IN THE EVENT THAT POSITION SHOULD CHANGE, THEN THE DEFENSE IS ENTITLED TO A DE NOVO HEARING ON THE 1538 DURING TRIAL IF THAT BECOMES NECESSARY."

AND YESTERDAY, IN VIOLATION OF THAT AGREEMENT, MR. GOLDBERG ELICITED FROM MR. FUNG TESTIMONY WITH RESPECT TO THE SEIZURE OF BOTH OF THESE ITEMS, THE AIRLINE TICKET RECEIPT AND THE BAGGAGE TAG. WE BELIEVE THAT THIS IS A VERY EGREGIOUS VIOLATION OF COUNSEL'S DUTY TO DELIBERATELY ELICIT TESTIMONY AND EVIDENCE THAT THE PROSECUTION AGREED WOULD NOT BE OFFERED, IN FRUSTRATION OF THE DEFENDANT'S RIGHTS TO SEEK SUPPRESSION OF THAT EVIDENCE. AND WE BELIEVE, ONCE AGAIN, THAT SEVERE SANCTIONS ARE WARRANTED, INCLUDING THE GIVING OF AN INSTRUCTION TO THE JURY, AND WE HAVE FASHIONED A PROPOSED INSTRUCTION. WE WOULD PROPOSE THAT THE COURT INSTRUCT THE JURY AS FOLLOWS:

"THE LAWS GOVERNING CRIMINAL PROCEDURE IN CALIFORNIA REQUIRE THE EXCLUSION OF EVIDENCE THAT WAS UNLAWFULLY ACQUIRED BY THE POLICE. THESE LAWS EXIST TO PROTECT THE PRIVACY OF ALL CITIZENS BY DETERRING UNLAWFUL POLICE CONDUCT. PRIOR TO THE TRIAL OF THIS CASE THE PROSECUTION REPRESENTED THAT SOME ITEMS OF EVIDENCE WOULD NOT BE OFFERED IN THE TRIAL AND THE COURT WITHHELD A RULING WHETHER THEY WERE LAWFULLY ACQUIRED.

"DURING THE TESTIMONY OF MR. FUNG THE PROSECUTION VIOLATED THEIR AGREEMENT AND YOU MAY CONSIDER THE EFFECT, IF ANY, OF THIS VIOLATION UPON THE CREDIBILITY OF MR. FUNG AND GIVE TO IT THE WEIGHT TO WHICH YOU FEEL IT IS ENTITLED."

YOUR HONOR WILL NOTE THAT THIS INSTRUCTION CLOSELY PARALLELS THE INSTRUCTION THAT THE COURT PROPOSES TO GIVE WITH RESPECT TO ROSA LOPEZ. WE ALSO FEEL THAT A FINE WOULD BE APPROPRIATE AS A SANCTION IN THIS CASE AS WELL. NOW, YOUR HONOR, IN THE MOVING PAPERS, WITH RESPECT TO SANCTIONS, THE DEFENSE HAS MADE A PROPOSAL TO IN EFFECT CALL OFF THIS ESCALATING WAR OF SANCTIONS WHICH IS FREQUENTLY CHARACTERIZED BY HYPERBOLE AND OVERDRAMATIZATION AND PERSONAL VITUPERATION AND SIMPLY PUT OVER TO THE END OF THIS TRIAL, AFTER ALL OF THE EVIDENCE IS IN, ALL THE ISSUES WITH RESPECT TO WHAT PUNITIVE SANCTIONS ARE WARRANTED IN THIS CASE. WHILE THE COURT MUST OF COURSE IMMEDIATELY ADDRESS QUESTIONS ABOUT NEEDS FOR DELAY IN THE PRESENTATION OF EVIDENCE OR ARGUMENTS WITH RESPECT TO THE TOTAL PRECLUSION OF EVIDENCE, WE ALSO BELIEVE THAT PRECLUSION IS NOT A REMEDY THAT IS GOING TO BE SERIOUSLY CONSIDERED WITH RESPECT TO ANY EVIDENCE IN THIS CASE, THAT THE COURT WILL MORE OFTEN BE DEALING WITH ISSUES INVOLVING FINES AND RETALIATORY JURY INSTRUCTIONS. OF COURSE WE ARE HOPEFUL THAT THE COURT WILL NEVER HAVE TO DEAL WITH ANY OF THESE ISSUES AGAIN, BUT THAT -- THAT HOPE CERTAINLY HAS NOT BEEN WARRANTED UP UNTIL NOW. WE BELIEVE THERE WOULD BE THREE VERY GOOD ADVANTAGES TO THE COURT IN PUTTING THESE ISSUES OVER. FIRST OF ALL, IT COULD EXPEDITE THE PRESENTATION OF THE EVIDENCE TO THE JURY WHICH IS SEQUESTERED AND AVOID THE INTERRUPTIONS AND DISTRACTIONS OF ARGUMENTS ABOUT SANCTIONS THAT SEEM TO BE COMING UP WITH -- WITH RECURRING FREQUENCY, BUT MORE IMPORTANT, IT WOULD ALLOW THE COURT TO ASSESS THE ISSUE OF PREJUDICE, THE ISSUE OF WILLFULNESS, AND MOST IMPORTANT, THE ISSUE OF THE EXTENT TO WHICH JURY INSTRUCTIONS OF THIS NATURE MIGHT UNDERMINE THE RELIABILITY OF THE TRUTH FINDING PROCESS IN THE CONTEXT OF THE ENTIRE TRIAL, IN THE CONTEXT OF WHAT THE DEFENSE HAS DONE, WHAT THE PROSECUTION HAS DONE, WHAT PATTERN OF WILLFULNESS EMERGES AND WHAT DEGREE OF PREJUDICE EMERGES IN THE CONTEXT OF THE ENTIRE TRIAL. I THINK IT IS INTERESTING THAT IN THE FEW APPELLATE CASES CONSIDERING SANCTIONS PURSUANT TO CALIFORNIA'S RECIPROCAL DISCOVERY LAW, THERE HAVE BEEN SOME REVERSALS OF THE IMPOSITION OF SANCTIONS, BUT THE APPELLATE COURT HAS THE VIRTUE OR THE ADVANTAGE OF LOOKING AT THE EFFECT OF THE SANCTIONS IN THE CONTEXT OF THE ENTIRE TRIAL AND HOW THOSE SANCTIONS AFFECTED THE FACT-FINDING PROCESS THAT WAS ULTIMATELY HANDED TO THE JURY. THERE IS NO REASON ON EARTH WHY A TRIAL COURT SHOULD NOT HAVE THE SAME ADVANTAGE AND SHOULD NOT BE ABLE TO LOOK AT THIS WHOLE QUESTION OF SANCTIONS IN THE CONTEXT OF WHAT IMPACT IT HAD THROUGHOUT THE TRIAL BEFORE THE FINAL INSTRUCTIONS ARE GIVEN TO THE JURY. AND IF YOUR HONOR FEELS THAT INSTRUCTIONS ARE NECESSARY, THOSE INSTRUCTIONS CAN THEN BE INCORPORATED INTO THE FINAL INSTRUCTIONS TO THE JURY. WE BELIEVE THAT THE THIRD ADVANTAGE THIS WOULD GIVE THE COURT IS EVENHANDEDNESS, THAT YOUR HONOR WOULD BE ABLE TO ASSESS THE RELATIVE CULPABILITY OF THE DEFENSE AND THE PROSECUTION AT THE SAME TIME AND BALANCE THE SCALE OF WHAT SANCTIONS ARE APPROPRIATE WITH RESPECT TO EACH SIDE. IN THAT RESPECT THEN WE WOULD REQUEST THAT YOUR HONOR WITHDRAW THE ORDER THAT YOU ENTERED ON MARCH 1ST WITH RESPECT TO SANCTIONS RELATING TO THE ROSA LOPEZ TAPE AND SIMPLY PUT OVER THIS QUESTION OF SANCTIONS TO THE END OF THE TRIAL AND ADDRESS ALL QUESTIONS OF PUNITIVE SANCTIONS AND RETALIATORY INSTRUCTIONS AT THAT TIME. BUT IF YOUR HONOR IS NOT SO DISPOSED AND FEELS THAT EACH SANCTION ISSUE SHOULD BE ADDRESSED AS IT OCCURS, WE WOULD ALTERNATIVELY REQUEST THE INSTRUCTIONS THAT WE HAVE ASKED FOR WITH RESPECT TO THE JUNE 13TH VIDEOTAPE, WITH RESPECT TO THE ELICITATION OF EVIDENCE THAT THE PROSECUTION AGREED WOULD NOT BE OFFERED AND SHOULD IMPOSE FINES AS SANCTIONS.

THANK YOU, COUNSEL. MISS LEWIS.

YOUR HONOR, GOOD MORNING.

GOOD MORNING.

YOUR HONOR, I BELIEVE THIS AREA OF DISCOVERY VIOLATIONS AND SANCTIONS NEED A REALITY CHECK AND THAT REALITY CHECK HAS TO BE BASED ON THE DISCOVERY LAWS, BECAUSE AS THOSE DISCOVERY LAWS POINT OUT:

"THE ONLY ORDERS REQUIRING DISCOVERY THAT SHALL BE MADE IN CRIMINAL CASES ARE AS PROVIDED IN THIS CHAPTER." NOW, THE PROVISION OF THE PENAL CODE 1054.1 REQUIRES THAT:

"PROSECUTING ATTORNEY TO DISCLOSE TO THE DEFENSE A VARIETY OF MATERIALS, BUT THE -- THE PREFACE TO THE DISCLOSURE OF THESE MATERIALS IS THAT THEY MUST BE DISCLOSED IF IT IS IN THE POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATING AGENCIES."

THE DEFENSE HAS FAILED TO EVEN MAKE THAT THRESHOLD SHOWING WHICH IS REQUIRED BEFORE ANY OF THESE OTHER ISSUES, WHETHER IT IS MATERIAL, WHETHER IT IS BRADY OR SO FORTH, EVEN BECOMES OF ISSUE. THEY HAVE FAILED TO MAKE THAT THRESHOLD SHOWING. THESE -- IT IS UNCONTROVERTED THAT WE DID NOT KNOW ABOUT THIS TAPE UNTIL MARCH 24TH. IT IS UNCONTROVERTED WE NOT HAVE THIS TAPE IN OUR POSSESSION.

MISS LEWIS, THE PROBLEM, THOUGH, IS THROUGHOUT THIS LITIGATION IT HAS BEEN BROUGHT UP THAT THE DEFENSE SAYS WE KNOW THERE IS ANOTHER VIDEOTAPE BECAUSE WE HAVE INFORMATION FROM THE NEWS PHOTOGRAPHERS THAT THERE WAS SOME POLICE PHOTOGRAPHER VIDEOTAPING. WHERE IS THE VIDEOTAPE?

YOUR HONOR --

WELL, THE BASIS IS WE MADE INQUIRY. I WAS PERSONALLY PRESENT WHEN INQUIRY WAS MADE OF THE LEAD DETECTIVES IN THE CASE AND THEY WERE UNAWARE OF ITS EXISTENCE -- EXCUSE ME -- AND THEREFORE DID -- TOLD US THAT NOTHING EXISTED, AND IT IS CLEAR WHY THEY WERE UNAWARE OF IT EXISTENCE, BECAUSE ALL OF THE EVIDENCE ELICITED YESTERDAY SUPPORTS THAT THIS WAS A TAPE MADE SOLELY FOR ADMINISTRATIVE CIVIL LIABILITY PURPOSES. THE TAPE IS -- NOT ONLY DETECTIVE HARPER, DETECTIVE LUPER, THE VIDEOGRAPHER AND MR. ADKINS, THE SUPERVISOR, ALL TESTIFIED THAT THAT WAS THEIR UNDERSTANDING OF THE PURPOSE OF THIS TAPE, BUT THE TAPE IS SELF-AUTHENTICATING IN THAT REGARD. IT DOES NOT SHOW THE PATHWAY WHERE THE GLOVE WAS RECOVERED FROM, IT DOES NOT SHOW THE BLOOD DROPS ON THE DRIVEWAY. IT FOCUSES EXTENSIVELY, I COUNTED ABOUT FOUR TO FIVE MINUTES, ON ALL THE TROPHIES AND VALUABLES WITHIN THE TROPHY ROOM. IT SHOWS THE FURNITURE WITHIN THE RESIDENCE AND IT SHOWS THE CARS WITHIN THE GROUNDS OF THE RESIDENCE AND IT SHOWS ALL OF THESE ITEMS OF VALUE AND IT EVEN SHOWS THE ONLY DAMAGE OR APPARENT DAMAGE WHICH WAS THESE TWO BLOOD DROPS ON THE LIGHT WOOD FLOOR, ALSO FOR CIVIL LIABILITY PURPOSES.

BUT DOESN'T THAT CONTRADICT THE TESTIMONY REGARDING WHEN THOSE BLOOD DROPS WERE COLLECTED?

I DON'T KNOW WHY YOUR HONOR FEELS IT DOES. THERE IS -- I DON'T SEE ANY CONTRADICTION IN THAT, YOUR HONOR. THERE IS NO ITEM NUMBERS SHOWN NEXT TO THOSE BLOOD DROPS, SO PRESUMABLY THEY WERE COLLECTED PRIOR TO THIS VIDEOTAPE BEING SHOT. I DON'T SEE A CONTRADICTION.

WELL, IF THEY ARE STILL THERE, HOW ARE THEY COLLECTED?

I IMAGINE IT IS BLOOD STAINS. I DON'T THINK IT CAN BE COMPLETELY REMOVED FROM THAT LIGHT-COLORED WOOD FLOOR.

I ASSUME THOSE LIGHT-COLORED WOOD FLOORS HAVE A SEALER ON THEM.

WELL, I DON'T THINK WE CAN ASSUME THINGS LIKE THAT, YOUR HONOR.

WELL, I STOOD ON THE FLOOR, COUNSEL.

WELL, I DID AS WELL, AND FRANKLY, I DON'T RECALL WHETHER IT SEEMED TO HAVE A SEAL OR NOT, BUT I THINK THAT IS A BIG LEAP TO MAKE TO SAY THAT BECAUSE A TINY PORTION OF THIS VIDEO SHOWS WHAT TURNS OUT TO BE CRIMINAL EVIDENCE OR EVIDENCE RELATING TO THE CRIMINAL INVESTIGATION IN THE CASE, THEREFORE THIS VIDEO BECOMES MATERIAL IN ANY CONSTITUTIONAL SENSE OR IN ANY SENSE AT ALL IN TERMS OF DEFENSE DISCOVERY.

WELL, THE PROBLEM I HAVE, THOUGH, MISS LEWIS IS, IS THIS:

THE REQUEST WAS MADE SEVERAL TIMES BY DEFENSE COUNSEL THAT THEY KNEW OR HAD REASON TO BELIEVE THAT THIS TAPE EXISTED AND THEY ASKED SEVERAL TIMES FOR IT AND WE GOT REPRESENTATIONS BACK SEVERAL TIMES IT DOESN'T EXIST.

YOUR HONOR --

NOW, WE FIND IT EXISTS.

IT WAS OUR BELIEF THAT IT DID NOT EXIST AND IT IS UNDERSTANDABLE HOW THAT HAPPENED, SINCE IT WAS MADE FOR THIS PURELY ADMINISTRATIVE PURPOSE AND WAS PLACED BY DETECTIVE LUPER, WHO HAS NOT BEEN PART OF THE DISCOVERY PROCESS, IS NOT ONE OF THE LEAD DETECTIVES IN THE CASE, WAS PLACED BY HIM IN A FILE CABINET BECAUSE -- AND HE ONLY THOUGHT OF IT WHEN IT BECAME KNOWN TO HIM THAT HE WAS GOING TO BE TESTIFYING IN THE CASE. SO THAT IS WHEN HE THOUGHT OF IT, THAT IS WHEN IT OCCURRED TO HIM TO LOOK FOR AIDS THAT MIGHT BE USEFUL IN REFRESHING HIS RECOLLECTION DURING HIS TESTIMONY. HE THOUGHT OF IT, HE BROUGHT IT TO THE ATTENTION OF THE LEAD DETECTIVES. THEY IMMEDIATELY TOLD US, WE IMMEDIATELY HAD IT COPIED, AS SOON AS OUR LAB WAS AVAILABLE. IT WAS A FRIDAY I BELIEVE THAT WE DISCOVERED IT AND WE TURNED IT OVER THE FOLLOWING MONDAY. IT MAY BE UNFORTUNATE THAT THIS TAPE WAS NOT DEPICTED SOONER, BUT THERE IS AN ADDITIONAL POINT TO BE MADE. WHEN YOU TALK ABOUT DEFENSE PREJUDICE, EVEN ASSUMING IT WAS DISCOVERABLE -- AND IT WAS NOT, YOUR HONOR, AND I DON'T CARE IF THEY MADE SPECIFIC REQUESTS, IF WE HAD NOT PLANNED -- NOW THAT WE KNOW ABOUT THIS TAPE, WE WOULD LIKE TO USE PART OF IT. WE WOULD LIKE TO HAVE HAD IT MONTHS AGO AND USED PART OF IT IN VARIOUS OTHER HEARINGS, BUT EVEN AT THIS POINT IN TIME, IF WE DID NOT INTEND TO USE THAT TAPE AT TRIAL, IT WOULD NOT BE DISCOVERABLE. I DON'T CARE IF THEY PERSONALLY REQUESTED IT OR MADE A SPECIFIC REQUEST FOR IT. THIS IS NOT BRADY MATERIAL. AND IN FACT UNDER BRADY THERE NEED NOT BE A SPECIFIC REQUEST MADE, SO THAT WHEN WE ARE TALKING ABOUT SANCTIONS, YOUR HONOR, AND WE ARE TALKING ABOUT IMPOSING SANCTIONS ON THE PROSECUTION, THAT IS A SERIOUS ALLEGATION AND A SERIOUS MATTER. AND IT WAS SERIOUS FOR THE DEFENSE AND IT IS SERIOUS FOR US, BUT WE ARE IN A DIFFERENT CONTEXT THAN THE DEFENSE WAS IN THE ROSA LOPEZ MATTER. I'M GOING TO TALK ABOUT THAT IN A MOMENT. WE ARE IN A SITUATION WHERE WE HAD NO OBLIGATION TO PROVIDE THIS DISCOVERY. IF WE HAD KNOWN ABOUT IT, WE WOULD HAVE. OF COURSE IT WOULD HAVE BEEN USEFUL IN EXAMINING THE WITNESS, IT WOULD HAVE BEEN USEFUL DURING DIRECT EXAMINATION, NOT JUST CROSS-EXAMINATION BY THE DEFENSE. WE WOULD HAVE LIKE TO HAVE HAD THIS VIDEO, BUT WE DID NOT, AND THE FACT THAT WE DO HAVE DISCOVERED IT NOW IS SIMPLY TO EVERYONE'S BENEFIT. IT DOESN'T MEAN THAT THERE WAS ANY PREJUDICE INURED TO THE DEFENSE. THEY FAILED TO SHOW ANY PREJUDICE WHATSOEVER IN NOT HAVING IT. AND ALONG THOSE LINES, THE PHOTOGRAPHS THAT THE DEFENSE HAS HAD IN THEIR POSSESSION FOR MONTHS ARE ACTUALLY MUCH BETTER EVIDENCE, AS DETECTIVE LUPER, I BELIEVE IT WAS, ALLUDED TO WHEN HE TESTIFIED YESTERDAY, BECAUSE THE PHOTOGRAPHS SHOW THIS EVIDENCE WHEN IT WAS RECOVERED, AFTER IT WAS RECOVERED. IT SHOWS ALL THESE BLOOD DROPS. IT SHOWS EVERYTHING IN BETTER DETAIL BECAUSE THOSE PHOTOGRAPHS WERE TAKEN INDEED FOR CRIMINAL INVESTIGATION PURPOSES UNDER -- PERHAPS UNDER SUBDIVISION (C) OF PENAL CODE SECTION 1054.1. THOSE ARE REAL EVIDENCE INTENDING AND SHOT FOR THE PURPOSE OF CRIMINAL INVESTIGATION PURPOSES. SO THOSE PHOTOGRAPHS WERE DISCOVERABLE, THEY WERE TURNED OVER, THEY ARE CERTAINLY THE BEST RECORDATION, MUCH BETTER THAN THIS VIDEO, OF ALL OF THE CRIME SCENE EVIDENCE. AND THE LOCATIONS WHERE ITEMS WERE RECOVERED, THE PHOTOGRAPHS SHOW THE PATHWAY, THE GLOVE AND SO FORTH. THEY SHOW THE CRIMINAL ASPECTS OF THIS CASE. THEY DON'T SHOW ALL THE VALUABLE -- HEISMAN TROPHY AND ALL THE OTHER VALUABLE TROPHIES THAT THE DEFENDANT HAD BECAUSE THOSE WERE NOT PART OF THE CRIMINAL INVESTIGATION IN THIS CASE AND THERE WAS NO REASON FOR THOSE STILL PHOTOGRAPHS TO DEPICT THEM. THE ONLY THING THAT IS SHOWN ON THE VIDEOTAPE, WHICH IS NOT SHOWN IN THESE CRIME SCENE PHOTOS THAT MIGHT HAVE HAD SOME SIGNIFICANCE, WAS THE LINEN CLOSET WHICH WAS FINGERPRINT DUSTED, BUT AS DETECTIVE LUPER TESTIFIED YESTERDAY, NO FINGERPRINTS WERE RECOVERED. THERE WAS NOTHING OF EVIDENTIARY SIGNIFICANCE ABOUT THE LINEN CLOSET AND I DON'T BELIEVE THE COURT HAS HEARD ANY TESTIMONY, I DON'T RECALL IN THE MONTHS I HAVE BEEN INVOLVED IN THIS CASE, ANY TESTIMONY HAVING TO DO WITH THE LINEN CLOSET BECAUSE THERE HAS BEEN NOTHING RELEVANT ABOUT IT. SO THERE IS NOTHING ON THIS VIDEOTAPE THAT IS NOT BETTER DEPICTED, MUCH BETTER DEPICTED WITHIN THE PHOTOGRAPHS THE DEFENSE HAS HAD FOR MONTHS. NOW, YOUR HONOR, THE ROSA LOPEZ SITUATION IS ENTIRELY DIFFERENT. THE DEFENSE, UNDER PENAL CODE SECTION 1054.3 SUBDIVISION (A) REQUIRES THE LAW -- I SHOULD SAY REQUIRES THE DEFENSE TO TURN OVER THE STATEMENTS OF WITNESSES THEY INTEND TO CALL AT TRIAL, RECORDED STATEMENTS, RECORDED IN ANY MANNER. ROSA LOPEZ WAS ON THE DEFENSE SEPTEMBER 1ST, 1994, WITNESS LIST, SO THEIR INTENTION TO CALL HER AT TRIAL WAS CLEAR AND PRESENT FOR MONTHS BEFORE THAT TAPE WAS DISCOVERED. NOW, WE HAVE A -- THE DEFENSE WOULD LIKE TO DRAW US INTO THIS -- THE SAME SITUATION AS THEY ARE IN, BUT WE ARE NOT. THE DISCOVERY STATUTE, WHEN IT TALKS ABOUT IF IT IS IN THE POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATING AGENCIES, UNDER 1054.1, WHICH IS THE STATUTE THAT COVERS OUR OBLIGATION, MAKES THAT CRITICAL DISTINCTION BETWEEN US AND THE POLICE.

DO YOU THINK UNDER 1054.1 THAT A REASONABLE INTERPRETATION CREATES AN OBLIGATION FOR THE PROSECUTION TO MAKE REASONABLE INQUIRY AND DILIGENT SEARCH FOR THESE ITEMS?

WE DID, YOUR HONOR. WE DID. WE WANTED --

I'M NOT ASKING YOU WHETHER OR NOT YOU DID. DO YOU AGREE THAT A REASONABLE INTERPRETATION OF THAT CODE SECTION REQUIRES INQUIRY TO BE MADE?

YES, YES, I THINK THAT IS A REASONABLE INTERPRETATION OF THAT CODE SECTION, BUT UNLIKE THAT SECTION, THE DEFENSE -- THE SECTION GOVERNING THE DEFENSE OBLIGATIONS, DISCOVERY OBLIGATIONS, MAKES NO DISTINCTION BETWEEN THE DEFENSE ATTORNEYS AND THE DEFENSE INVESTIGATORS AND THAT IS CLEAR WHY. THE POLICE DEPARTMENT IS A SEPARATE AGENCY, A SEPARATE ENTITY. IT IS NOT EVEN A COUNTY DEPARTMENT; IT IS A CITY DEPARTMENT. WE ARE IN TOTAL DIFFERENT FORMS OF GOVERNMENT OR TOTALLY DIFFERENT BUREAUCRACIES. WE DON'T PAY THE POLICE, WE DON'T ORDER THE POLICE AROUND. THE POLICE AREN'T BEHOLDEN TO THE D.A.'S WE DON'T PAY THEIR SALARIES. THEY HAVE SIMILAR GOALS IN TERMS OF SOME SIMILAR PROSECUTION, SO OF COURSE WE WORK IN CONJUNCTION, BUT IT IS A DIFFERENT SITUATION WHEN YOU LOOK AT THE DEFENSE SIDE OF THE TABLE. THEIR DEFENSE INVESTIGATORS ARE EMPLOYED DIRECTLY BY THEM. THEY DO TAKE ORDERS DIRECTLY FROM THEM, AND IF MOST -- AND THAT DISTINCTION IS RECOGNIZED IN THE DISCOVERY STATUTES BY THE FAILURE OF THE STATUTE GOVERNING DEFENSE DISCOVERY TO MAKE ANY DISTINCTION BETWEEN THE DEFENSE ATTORNEYS AND THEIR INVESTIGATORS. SO WHEN IT CAME TO THE ROSA LOPEZ TAPE, THE DEFENSE ATTORNEYS WERE CHARGED WITH THE KNOWLEDGE OF THAT TAPE THAT MR. PAVELIC HAD IN HIS POSSESSION. NOT SO WITH US AND THAT IS NOT SO BECAUSE OF THE EXPRESS TERMS OF THE STATUTE. SO WE ARE TALKING ABOUT APPLES AND ORANGES. AND IN ADDITION OF COURSE THE DEFENSE -- WHEN IT COMES TO THE CIVIL LIABILITY ASPECT OF THIS PARTICULAR VIDEOTAPE, WE -- THE D.A.'S OFFICE WOULDN'T BE SUED IF THE POLICE HAD SEEN TO HAVE DONE SOMETHING TO CAUSE DAMAGE TO THOSE PREMISES. THE LOS ANGELES POLICE DEPARTMENT WOULD BE SUED AND THEY HAVE BEEN SUED. AND THEY DO HAVE THE CHOICE NOW. THE DETECTIVES HAVE THE CHOICE OF RECORDING EITHER BY VIDEOTAPE OR BY STILL PHOTOS LOCATIONS WHERE SEARCH WARRANTS ARE EXECUTED TO MAKE SURE THAT THEY HAVE GOT A RECORD OF THAT IN CASE OF A LATER SUIT. I'M SURE THE COURT IS AWARE THE DEPARTMENT IS SUED ALL THE TIME, SO THEY HAVE DIFFERENT -- THEY HAVE DIFFERENT ADMINISTRATIVE LIABILITIES AND PROBLEMS THAN DOES THE D.A.'S OFFICE. I GUESS WE GET OUR OWN LAWSUITS IN SOME RESPECTS, BUT CERTAINLY NOTHING TO DO WITH THE EXECUTION OF SEARCH WARRANTS. AND YOUR HONOR, THE DEFENSE KEEPS TALKING ABOUT THIS RECITAL TAPE. THERE WERE -- WE ARE NOT TALKING ABOUT THE RECITAL TAPE ANY MORE. THE COURT MADE INQUIRY ABOUT THAT, THE JUNE 12TH RECITAL THAT THE DEFENDANT ATTENDED. THE COURT MADE INQUIRY.

WE DIDN'T KNOW WE HAD IT. APPARENTLY -- I DON'T REMEMBER EXACTLY HOW THAT CAME ABOUT BECAUSE I WASN'T PERSONALLY INVOLVED WITH THAT, BUT WHEN WE FOUND IT, WE TURNED IT OVER. IT CERTAINLY WAS NOT MATERIAL EVIDENCE, AND THE COURT HAS TO CONSIDER THAT THIS, AS I SAID, EVEN --

MISS LEWIS, HOW CAN YOU SAY THAT IT IS NOT MATERIAL EVIDENCE WHERE THE PROSECUTION'S THEORY IS THAT THERE WAS THIS TENSION AND ANGER EXPRESSED BY THE DEFENDANT ON THE DATE IN QUESTION AT THE DANCE RECITAL AND THAT HE WAS GLOWERING AT PEOPLE AND WAS IN A STATE OF -- EMOTIONAL STATE OF MIND, AND YET WE SEE HIM GREETING THE BROWN -- SAYING GOOD-BYE TO THE BROWN FAMILY AND SMILING AND GREETING HIS CHILDREN? I MEAN, THAT IS DIRECTLY CONTRADICTORY TO -- TO THE TESTIMONY OF THE PROSECUTION WITNESS, SO HOW CAN YOU SAY THAT THAT WASN'T MATERIAL?

TO THE CONTRARY, YOUR HONOR. IT DIRECTLY SUPPORTS THE ENTIRE PROSECUTION THEORY. WHEN MR. SIMPSON WAS INSIDE THAT AUDITORIUM, WHEN HE WASN'T IN THE PUBLIC DOMAIN WHERE PEOPLE WOULD BE LOOKING AT HIM, HE IS THINKING ABOUT OTHER THINGS, THAT IS WHEN THE WITNESS TESTIFIED AS TO THOSE EXPRESSIONS. WHEN HE GOT OUTSIDE, HE WAS AWARE AND GREETING PEOPLE AND WAS AWARE. THAT BECAME HIS PUBLIC PERSONA, AND AS MR. DARDEN TOLD THE JURY DURING OPENING STATEMENT, THIS MAN HAS TWO PERSONAS; HE HAS THE PUBLIC FACE AND HE HAS THE PRIVATE FACE.

ALL RIGHT. LET'S MOVE ON TO THE FBI SHOEPRINT MATTERS.

THE DEFENSE, YOUR HONOR, HAS STILL FAILED TO SHOW HOW THESE MATERIALS FALL UNDER THE DISCOVERY LAWS. AS I INDICATED TO THE COURT THE OTHER DAY WHEN THIS WHOLE ISSUE FIRST CAME UP, THESE MATERIALS ARE BASICALLY CORRESPONDENCE, THEY ARE MATERIALS SENT OUT BY THE FBI TO MANUFACTURERS AN IN AN EFFORT TO INVESTIGATE THIS WHOLE SHOE AREA.

DO YOU PLAN ON CALLING BILL BODZIAK?

YES.

AREN'T THESE HIS WORK MATERIALS AND HIS REPORTS AND HIS EFFORTS OF INVESTIGATION.

THESE ARE INVESTIGATIVE EFFORTS. I WOULD CALL THEM INVESTIGATIVE EFFORTS, AND THEY HAVE NOW BEEN TURNED OVER, BUT YOU KNOW, THE INVESTIGATION IS ONGOING. WE MAY NOT HAVE SEEN THE END OF THE SHOE EVIDENCE. IT IS ONGOING TODAY AS WE SPEAK. THERE ARE -- THERE ARE PEOPLE INVESTIGATING THIS AREA, AND YOU KNOW, I DON'T WANT TO FILL THE COURT IN ON THE DETAILS, BUT --

WELL, THE PROBLEM I HAVE, THOUGH, IS THAT THESE RECORDS GO BACK TO AUGUST OF 1994.

THESE ARE NOT RECORDS.

LETTERS AND CORRESPONDENCE.

YOUR HONOR, THESE ARE NOT RECORDS. LET'S MAKE THAT CLEAR. THESE ARE NOT THE REPORTS OF EXPERTS AND THEY ARE NOT EVEN EXPERT'S NOTES. IT IS CORRESPONDENCE AS PART OF THE INVESTIGATION. I WOULD INVITE THE COURT TO TAKE A LOOK AT WHAT WE ARE TALKING ABOUT BECAUSE THIS MATERIAL CLEARLY DOES NOT FALL UNDER THE DISCOVERY -- UNDER DISCOVERY LAWS. WE HAVE CHOSEN TO MAKE IT AVAILABLE, YOU KNOW, GIVE IT TO THE DEFENSE, BUT EVEN THE COVER LETTER FROM THE FBI INDICATES THAT THEY:

"HAVE REVIEWED ALL THE DISCOVERY REQUESTS DIRECTED TO THE FBI, UNLESS OTHERWISE NOTICED, HAVE COMPLIED WITH EACH OF THEM, EVEN THOUGH MANY ARE CLEARLY OUTSIDE THE NORMAL SCOPE OF DISCOVERY."

THAT IS THE LETTER FROM MR. SHAPIRO, THE GENERAL COUNSEL FOR THE FBI, SO HE IS SAYING WE ARE GOING TO GIVE YOU EVERYTHING, EVEN THOUGH IT IS OUTSIDE THE NORMAL COURSE OF DISCOVERY. AND AS MR. GOLDBERG ACTUALLY POINTED OUT THE OTHER DAY, BECAUSE WE HAVE BEEN SO GENEROUS IN THIS CASE, AND I'M NOT SURE HE POINTED IT OUT, I WON'T LAY IT ON HIM, BUT I WILL MAKE THE POINT, BECAUSE WE HAVE BEEN SO GENEROUS IN THIS CASE AND GOING THROUGH HOOPS AND PROVIDING THE DEFENSE WITH INCREDIBLE AMOUNT OF DISCOVERY WAY BEYOND WHAT WE ARE EVER REQUIRED UNDER THE LAW TO DO, NOW, THEY ARE TURNING AROUND AND TRYING TO SLAP US IN THE FACE WITH IT. WE HAVE GIVEN THEM TOO MUCH. THE STUFF IS NOT EVEN DISCOVERABLE. IF WE HAD NOT GIVEN IT TO THE, THEY WOULD NOT HAVE NOT KNOWN ABOUT IT. HERE THEY HAVE IT WEEKS IN ADVANCE TO ANY EVIDENCE COMING ON WITH REGARD TO THE SHOES. THEY HAVE IT WHEN WE DON'T EVEN HAVE TO GIVE IT AND WE GAVE IT TO THEM AS AN EXTRA COURTESY. LET'S GO BACK, YOUR HONOR, AS WE HAVE MADE THE POINT IN PREVIOUS MOTIONS, WE DID PROVIDE I THINK IT IS OVER 23,000, OR MAYBE MORE BY NOW, PAGES OF DISCOVERY, HUNDREDS OF VIDEOTAPES, AUDIOTAPES, ET CETERA.

LET ME ASK YOU THIS, MISS LEWIS: I ONLY WAS PROVIDED WITH A FEW WHAT WERE DEEMED BY THE DEFENSE TO BE REPRESENTATIVE PIECES OF THAT 238 PAGES OF MATERIAL REGARDING THE SHOES FROM THE FBI WHICH SEEM TO INDICATE A SEARCH TO IDENTIFY THAT PARTICULAR SOLE PATTERN IS MY RECOLLECTION OF WHAT I READ. HAVE YOU IDENTIFIED, TO YOUR KNOWLEDGE, THAT SHOE PATTERN?

INDEED, YOUR HONOR, THE DEFENSE WAS PROVIDED WITH THE REPORTS AND THE FINAL DISCOVERY AND WHAT IS DISCOVERABLE. THESE -- YOU KNOW, WHEN IT COMES TO EXPERTS, NOT THE WHOLE WORLD IS DISCOVERABLE. AS THE COURT KNOWS, THE COURT DID A LENGTHY IN CAMERA. I AM ASSUMING THAT WE PROSECUTORS DID NOT GET EVERY BIT OF INFORMATION. I'M SURE THE COURT MADE A CAREFUL EVALUATION IN DETERMINING WHAT WAS DISCOVERABLE AND WHAT WAS NOT, AND IN THIS CASE IT WAS OBVIOUS TO US CLEARLY THAT THIS IS MATERIAL WHICH IS NOT READILY DISCOVERABLE, IT IS NOT PROVIDED, AND WE DID PROVIDE THE BOTTOM LINE REPORTS WITH REGARD TO THOSE SHOEPRINTS.

WHAT I WAS GETTING AT IS -- IS -- MISS LEWIS, IS WHAT MATERIALITY -- WHAT IS THE MATERIALITY OF THE ITEMS THAT WERE TURNED OVER? WHAT IS THERE?

THERE IS NO MATERIALITY OF THE ITEMS THAT WERE TURNED OVER. I WOULD BE HAPPY TO LODGE -- THIS HAPPENS TO BE OUR ONLY COPY, BUT WE CAN MAKE A COPY OR I COULD LODGE OUR ORIGINALS.

ALL RIGHT. WOULD YOU HAVE YOUR STAFF MAKE A PHOTOCOPY OF THAT AND LODGE IT WITH THE COURT SO I CAN READ IT.

I WILL BE HAPPY TO DO THAT AND WILL DO THAT, YOUR HONOR.

ALL RIGHT. WOULD YOU ADDRESS THE TESTIMONY OF MR. FUNG REGARDING ITEMS THAT WERE WITHDRAWN BY THE PROSECUTION.

I WILL, YOUR HONOR. I HAD ONE FINAL POINT I WANTED TO MAKE. I WANTED THE COURT TO BE AWARE THAT IT IS THE FAVORITE LANGUAGE IN THE AGURS CASE WAS NOT OVERRULED BY THE BAGLEY CASE AS THE DEFENSE, MR. THORNTON -- THOMPSON, I'M SORRY -- MR. THOMPSON, THE DEFENSE ATTORNEY, MADE THE REPRESENTATION THE OTHER DAY. BAGLEY, THE BAGLEY CASE REAFFIRMS AGURS AND TALKS ABOUT WHEN SOMETHING IS CONSIDERED CONSTITUTIONALLY MATERIAL, BUT EVEN IN THE BAGLEY CASE IT WAS UNDISPUTED THAT THE MATERIAL WAS BRADY MATERIAL THAT WAS AT ISSUE IN THIS CASE. THERE WERE CONTRACTS WITH THE PROSECUTION WITNESSES AS FAR AS WHAT PAYMENT THEY WOULD RECEIVE DEPENDING ON HOW MUCH INFORMATION THEY GAVE, SO THAT WAS CLEARLY OBVIOUSLY BRADY MATERIAL, BUT THERE HAS TO BE A SHOWING OF CONSTITUTIONAL MATERIALITY, YOUR HONOR, FOR SOMETHING TO BE DISCOVERABLE UNDER BRADY, AND THERE IS NOTHING EVEN COME CLOSE TO THAT IN THIS VIDEOTAPE.

AND I WILL REITERATE THE POINT THAT THE STILL PHOTOGRAPHS SHOW BETTER EVERYTHING THAT THE VIDEO SHOWS, SHOW BETTER BECAUSE IT SHOWS NOT ONLY DURING THE EARLIER TIME --

COUNSEL, YOU HAVE MADE THAT POINT ALREADY.

I MISSED --

WHAT I'M INTERESTED IN --

WITH THE COURT'S PERMISSION, SINCE I WASN'T PRESENT YESTERDAY AND I KNOW WHAT THE ISSUE IS, BUT MR. GOLDMAN WOULD LIKE TO ADDRESS THE COURT WITH REGARD TO MR. FUNG'S TESTIMONY.

GOOD MORNING, YOUR HONOR.

GOOD MORNING, MR. GOLDBERG.

JUST TO CLARIFY THE RECORD, I THINK TO MY RECOLLECTION IT WAS MR. SCHECK THAT MADE THE COMMENT ABOUT AGURS BEING RECALLED. I NODDED AT THE INAPPROPRIATE TIME WHILE MISS LEWIS WAS LOOKING TO ME FOR AFFIRMATION. I THINK IT WAS HE AND NOT MR. THOMPSON, SO I DID NOT WANT TO HAVE THE COURT MISLED IN THAT REGARD, NOT THAT IT IS THAT PARTICULARLY IMPORTANT. ON THE ISSUE OF THE TESTIMONY BY MR. FUNG, THIS IS A SITUATION, YOUR HONOR, WHERE THE PROSECUTION, IMMEDIATELY UPON REALIZING -- SPECIFICALLY ME -- UPON REALIZING THAT THAT QUESTION SHOULD NOT HAVE BEEN ASKED, BECAUSE IT WAS ELICITING INFORMATION THAT HAD BEEN SUPPRESSED, INSTANTLY AGREED WITH THE DEFENSE THAT IT SHOULD NOT HAVE BEEN ASKED, IT SHOULD NOT HAVE BEEN ELICITED, AND MISS CLARK AGREED. SO THIS DID NOT REQUIRE ANY ARGUMENT, IT DID NOT REQUIRE LOOKING AT THE TRANSCRIPT, AND I JUST DON'T UNDERSTAND WHY DEAN UELMEN WOULD FEEL THAT IT IS NECESSARY TO GO BACK AND ARGUE, FROM A LEGAL PERSPECTIVE, SOMETHING THAT WE HAD IMMEDIATELY CONCEDED, UNLESS HE IS INTERESTED IN SIMPLY THE PUBLIC EXCORIATION OF THE PROSECUTION OR IN THIS CASE OF ME. I JUST DON'T UNDERSTAND THE NECESSITY OF THAT. I WOULD AGREE WITH THE DEAN THAT THERE HAS BEEN AN ESCALATION IN TERMS OF REQUESTS FOR SANCTIONS, PERHAPS BECAUSE THE DEFENSE, IN OUR VIEW, WAS LEGITIMATELY SANCTIONED FOR SOME VERY SERIOUS DISCOVERY VIOLATIONS IN INSTANCES WHERE THERE WAS AT LEAST CIRCUMSTANTIAL EVIDENCE, STRONG CIRCUMSTANTIAL EVIDENCE, I BELIEVE IN THE COURT'S OPINION, THAT THERE WAS EITHER INTENTIONAL OR NEGLIGENT MISREPRESENTATIONS THAT WERE MADE BEFORE THIS COURT REGARDING ISSUES THAT WENT RIGHT TO THE CREDIBILITY OF MATERIAL WITNESSES.

WELL, LET'S PUT THOSE OTHER ISSUES ASIDE AS BEING APRICOTS AND ORANGES AT THIS POINT.

WELL, THAT --

MY INTEREST HERE IS GIVEN THE AGREEMENT OF THE PROSECUTION TO WITHDRAW THOSE ITEMS, HOW DID THIS HAPPEN?

WELL, YOUR HONOR, THE WAY THAT IT HAPPENED IS VERY SIMPLE. I WAS NOT HERE WHEN THAT HAPPENED. AS THE COURT KNOWS, I WAS A, RELATIVELY SPEAKING, RECENT ADDITION TO THE PROSECUTION IN THIS CASE.

THERE ARE A LARGE NUMBER OF ISSUES THAT WERE LITIGATED AND I DID NOT KNOW ABOUT THAT. IT WAS NOT COMMUNICATED TO ME. IT WAS AN ERROR. IT WAS A MISTAKE. WE MADE A MISTAKE.

DOESN'T THE PROSECUTION HAVE SOME OBLIGATION WITHIN THE TEAM MEMBERS TO COMMUNICATE WITH EACH OTHER AND ORGANIZE THE PRESENTATION OF THIS CASE?

OF COURSE, YOUR HONOR, AND WE HAVE DONE THAT, BUT DOES THE COURT HONESTLY BELIEVE, I WOULD ASK THIS QUESTION RHETORICALLY, THAT I AM GOING TO ASK MISS CLARK WERE THE AIRLINE TICKETS SUPPRESSED? I MEAN, OF COURSE I HAVE BEEN COMMUNICATING WITH HER ABOUT MY PRESENTATION OF THE CASE AND ALL THE TACTICAL ISSUES AND HOW WE ARE GOING TO PRESENT IT. I THINK THAT YOUR HONOR RECOGNIZES THAT, BUT NO, I DID NOT ASK HER WHETHER THE AIRLINE TICKETS WERE SUPPRESSED, AND IF I SHOULD HAVE, AND I FAILED TO, THEN I MADE A MISTAKE, BUT I DID NOT ASK THAT QUESTION.

I'M SORRY, THEY WERE NOT SUPPRESSED, THEY WEREN'T LITIGATED, AS MISS LEWIS JUST POINTED OUT. WHAT I WOULD SAY ON THIS ISSUE, THAT MY SOLE REASON FOR ASKING THAT QUESTION IS NOT BECAUSE I THOUGHT THERE WAS ANYTHING RELATIVE OR MATERIAL, PER SE, ABOUT THEM, BUT I SIMPLY WANTED TO GET THE SEQUENCE OF EVENTS, PARTICULARLY AS IT RELATED TO DETECTIVE VANNATTER GIVING THE BLOOD VIAL TO MR. FUNG. I WANTED TO BE VERY CAREFUL IN TERMS OF OUR PRESENTATION OF THAT PART OF THE EVIDENCE AND WHAT SEQUENCE OF EVENTS OCCURRED AND WHAT PIECES OF EVIDENCE HE COLLECTED JUST BEFORE HE LEFT AND RECEIVED THAT VIAL. THE AIRLINE TICKETS THEN, IT WOULD SEEM TO ME, BASED UPON WHAT THE JURY HAS HEARD OF THIS, IF ANYTHING, WOULD BE SOMETHING THAT WOULD BE SOMEWHAT FAVORABLE TO THE DEFENSE, THAT IT WOULD SEEM TO INDICATE THAT THE TRIP WAS A PLANNED ONE, AS OPPOSED TO BEING UNPLANNED, SO IT CERTAINLY DOESN'T HAVE ANY EVIDENTIARY VALUE IN TERMS OF THE CONTENTS OF THE EVIDENCE, AS OPPOSED TO THE TIMING SEQUENCE AS FAR AS THE PEOPLE ARE CONCERNED. AND FROM A LEGAL PERSPECTIVE, THE ISSUE OF AN INSTRUCTION TO THE JURY I RAISED, WHAT I WOULD POINT OUT TO THIS COURT IS THAT IT IS A WELL-RECOGNIZED PRINCIPLE OF LAW THAT UNLESS AN OBJECTION IS LODGED, THE OBJECTION -- THE OBJECTION IS WAIVED AND THERE WAS NO OBJECTION BY COUNSEL. I DON'T KNOW. THEY HAVEN'T EVEN REPRESENTED TO THE COURT IN GOOD FAITH THAT THEY DIDN'T INTEND TO INTRODUCE THE EVIDENCE THEMSELVES, THE AIRLINE TICKETS. SO THEY DIDN'T OBJECT TO IT, THEY DIDN'T DO ANYTHING UNTIL THEY DISCUSSED IT AT SIDE BAR WITH YOUR HONOR AND WITH MISS CLARK AND MYSELF.

AT THE END OF THE DAY.

AT THE END OF THE DAY, BUT THEY DIDN'T OBJECT AT THE TIME, AT THE TIME WHEN AN OBJECTION COULD HAVE BEEN SUSTAINED TO THE QUESTION AND AT A TIME WHEN ANY EVIDENCE COULD HAVE BEEN PRECLUDED. SO LEGALLY SPEAKING, I THINK THAT WE WOULD BE ENTITLED TO TAKE THE POSITION FROM A LEGAL STANDPOINT THAT THERE IS NOTHING MORE FOR THE COURT TO DO. THAT IS NOT THE POSITION I'M TAKING. IF THE COURT WANTS TO ADMONISH -- IF THE DEFENSE WANTS THIS, THAT THAT QUESTION AND THAT ANSWER IS STRUCK, WE WOULD BE -- WE WOULD CONCEDE THAT THAT IS AN APPROPRIATE WAY OF HANDLING IT. LEGALLY IT MAY NOT BE NECESSARY, BUT WE WOULD CONCEDE THAT THAT IS AN APPROPRIATE THING FOR THE COURT TO DO, BUT TO GIVE AN INSTRUCTION OF THE KIND THAT MR. UELMEN IS PROPOSING DOESN'T MAKE ANY SENSE.

AND THE ONLY REASON THAT I COMPARED THIS ALLEGED VIOLATION TO CERTAIN OF THE OTHER VIOLATIONS THAT MR. UELMEN DISCUSSED IS BECAUSE HE DREW A COMPARISON AND HE WAS ANALOGIZING TO THE INSTRUCTION THAT THE COURT WAS PROPOSING TO GIVE FOR THE ROSA LOPEZ INCIDENT. AND THEY ARE NOT ANALOGOUS, BECAUSE WHAT HAPPENED IN THE ROSA LOPEZ INCIDENT IS THAT THE PROSECUTION WAS DEPRIVED OF -- UNTIL THE LAST MINUTE -- MATERIALS THAT WERE VERY SIGNIFICANT IN TERMS OF THE CROSS-EXAMINATION AND THE CREDIBILITY OF THAT WITNESS. THERE HAS BEEN NO ANALOGOUS VIOLATION BY THE PROSECUTION WITH RESPECT TO THAT. WHAT HAS HAPPENED WITH MR. FUNG IS I ASKED HIM A QUESTION THAT HE HAD ABSOLUTELY NO WAY OF KNOWING WAS IMPROPER AND HE ANSWERED IT AS HE IS REQUIRED TO DO AS A WITNESS. IT IN NO WAY REFLECTS UPON HIS CREDIBILITY. IT IN NO WAY REFLECTS OR DIMINISHES THE CAPACITY OF THE DEFENSE ATTORNEYS TO CROSS-EXAMINE MR. FUNG EFFECTIVELY OR DEPRIVES THEM OF MATERIALS TO MAKE THE CROSS-EXAMINATION EFFECTIVE OR DEPRIVES THEM OF THE OPPORTUNITY TO HAVE A SUFFICIENT PERIOD OF TIME TO EXAMINE THOSE MATERIALS. SO YOU ARE NOT DEALING WITH ANY OF THE PROBLEMS THAT YOU ARE IN THE CASE OF ROSA LOPEZ WHERE DISCOVERY WAS HELD BACK ON SOME VERY IMPORTANT STATEMENTS THAT SHE MADE THAT WE USED FOR THE PURPOSES OF IMPEACHMENT. I DON'T KNOW WHETHER THE COURT WANTS ME TO ADDRESS THE ISSUE OF FINES. I WILL IF THE COURT WANTS TO HEAR ABOUT THAT.

WELL, IT IS SOMETHING THAT MIGHT HAPPEN, SO THIS IS YOUR CHANCE TO SAY SOMETHING.

OKAY. AS TO THE ISSUE OF FINES, FIRST OF ALL, IN THE CRIMINAL CONTEXT THERE IS NO STATUTORY AUTHORITY FOR THE IMPOSITION OF FINES TO THE SAME EXTENT THAT THERE IS IN CIVIL CONTEXT. IT HAS BEEN A WHILE SINCE I PRACTICED ANY CIVIL LAW, BUT THE CODE OF CIVIL PROCEDURE DOES PROVIDE FOR THE IMPOSITION OF FINES FOR A WIDE VARIETY OF THINGS, IN ADDITION TO DISCOVERY VIOLATIONS. I BELIEVE THAT A COURT IN A CIVIL HEARING CAN FINE COUNSEL FOR MAKING FRIVOLOUS MOTIONS. PERHAPS SOME VIEWERS OF THIS CASE WISH THAT THE COURT HAD THE AUTHORITY TO DO THAT HERE, BUT THERE IS CASE LAW TO INDICATE THAT THE CODE OF CIVIL PROCEDURE SECTIONS DEALING WITH FINES COULD NOT APPLY IN THE CONTEXT OF A CRIMINAL CASE. WHAT WE DO HAVE NOW, IN THE POST-PROPOSITION 115 CONTEXT, IS A SPECIFIC PROVISION IN 1054 FOR FINES FOR DISCOVERY VIOLATIONS, BUT THAT IS IT, SO LEGALLY THERE IS NO BASIS FOR FINES OUTSIDE OF THAT AREA, UNLESS THE COURT WERE TO HOLD THE PROSECUTION OR ME IN CONTEMPT AND THEN TO FINE ME THAT WAY. BUT OTHER THAN THAT, THERE IS NO AUTHORITY FOR THE IMPOSITION OF A FINE.

DON'T YOU THINK I HAVE AUTHORITY UNDER CCP 177.5, THE COURT HAVING ORDERED THAT BEFORE ANY NEW MENTION WAS MADE BY THE PROSECUTION THAT NOTICE WAS TO BE GIVEN TO THE DEFENSE AND THAT THEY WERE THEN ENTITLED TO A DE NOVO 1538.5?

NO. THAT IS WHAT I'M SAYING, IS I DON'T BELIEVE THAT THE CODE OF CIVIL PROCEDURE SECTIONS APPLY IN A CRIMINAL CONTEXT WITH RESPECT TO FINES.

WELL, THE CASE LAW IS PRETTY CLEAR THAT I HAVE AUTHORITY UNDER 177.5 TO IMPOSE FINES.

I WOULD HAVE TO LOOK THAT UP THEN, YOUR HONOR, BECAUSE I THOUGHT I READ A CASE SEVERAL YEARS BACK THAT SAID THAT THE COURT DID NOT, BUT I MAY BE MISTAKEN ABOUT THAT, SO I DON'T WANT TO REPRESENT SOMETHING BASED UPON MY RECOLLECTIONS OF THE CASE THAT I READ A VERY LONG TIME AGO.

OKAY.

AND I FEEL COMFORTABLE WITH THAT.

OKAY. IF THE COURT WERE INCLINED TO DO SO, I WOULD LIKE AN OPPORTUNITY TO GO BACK AND FIND THAT CASE, BECAUSE I DO HAVE IT IN MY COMPUTER. UNFORTUNATELY IT IS AT HOME AND I DID NOT KNOW THAT COUNSEL WAS GOING TO BE ASKING FOR FINES. BECAUSE WHEN WE HAD OUR LITTLE DISCUSSION IT SEEMED LIKE MR. COCHRAN, AND I THINK MAYBE MR. SHAPIRO WAS THERE, FELT THAT THIS WAS NOT A MAJOR DEAL AND THAT A LOT MORE IS BEING MADE OF IT THAN WAS YESTERDAY EVENING. THE OTHER THING I WOULD SAY ON THE ISSUE OF FINES HAS TO DO MORE WITH A PRACTICE IN OUR LEGAL COMMUNITY THAN WITH THE ACTUAL LAW, AND THAT IS THAT I WOULD LIKE TO POINT OUT THAT THE PROSECUTION DID NOT REQUEST FINES OF THE DEFENSE ATTORNEYS IN THIS CASE AS A RESULT OF THE DISCOVERY VIOLATIONS AND THERE ARE A NUMBER OF REASONS THAT WE DIDN'T DO SO. AND I AM NOT IN ANY WAY CRITICIZING THE IMPOSITION OF FINES BY THIS COURT, BUT IT IS OUR FEELING THAT IT IS NOT APPROPRIATE IN THAT KIND OF A SITUATION FOR AN ADVOCATE TO ASK FOR FINES AGAINST ANOTHER ADVOCATE, EVEN FOR SOMETHING THAT AMOUNTS TO AN INTENTIONAL OR RECKLESS MISREPRESENTATION, AND THAT WAS OUR REASON FOR NOT DOING SO. I'M NOT IN ANY WAY COMMENTING UPON THE IMPOSITION OF FINES BY YOUR HONOR. WE ARE JUST SAYING WHAT OUR POSITION WAS AND WHY WE DIDN'T ASK FOR IT. I BELIEVE, BASED UPON MY PRACTICE, THAT THERE IS AN UNWRITTEN RULE THAT FINES ARE GENERALLY NOT IMPOSED AND GENERALLY NOT REQUESTED BY CRIMINAL PRACTITIONERS IN OUR LOCAL LEGAL COMMUNITY.

BUT IT IS A SANCTION THAT THE COURT HAS AVAILABLE TO IT TO MAINTAIN ORDER IN THE COURT AND TO MAINTAIN RESPECT FOR THE ORDERS THAT THE COURT MAKES, SO IT IS A SANCTION THAT THE COURT USES; NOT NECESSARILY AT THE REQUEST OF THE PARTIES.

WELL, I WAS JUST EXPLAINING TO YOUR HONOR WHY WE DID NOT REQUEST IT AND I AM ALSO EXPLAINING WHY WE ARE SOMEWHAT SURPRISED BY THE FACT THAT DEAN UELMEN HAS REQUESTED THIS AND WHY -- AND SOMEWHAT SURPRISED BY THE FACT THAT THE DEFENSE HAS REQUESTED IT IN GENERAL.

WELL, THEY DIDN'T LIKE THE FINES THAT THEY GOT. THAT IS THE BASIS FOR THAT. I UNDERSTAND THAT.

I AM JUST SAYING THAT WE DID NOT ASK FOR THEM AND I WAS POINTING THAT OUT. YES, YOUR HONOR IS RIGHT, YOU DO HAVE THE CAPACITY TO MAINTAIN ORDER, BUT WHAT I WOULD SUGGEST ON THAT ISSUE IS HOW IS IT GOING TO MAINTAIN ORDER OF THIS COURT BY IMPOSING A FINE? HOW IS IT GOING TO DETER ANY FUTURE VIOLATION OF SOMETHING THAT WE ARE ENTIRELY UNAWARE OF AND THAT A REASONABLE PERSON WOULD NOT HAVE MADE INQUIRY INTO? YOU KNOW, YES, I DID DISCUSS MY ASPECT OF THE CASE WITH MISS CLARK, BUT AS I SAID, YOUR HONOR, I DID NOT ASK SPECIFICALLY WHETHER THE AIRLINE TICKETS HAD BEEN SUPPRESSED, AND IF THE COURT IS CONCERNED ABOUT DETERRING FUTURE INCIDENCES OF THIS KIND, I DON'T SEE HOW THE COURT CAN DETER THAT KIND OF UNINTENTIONAL MISTAKE. IT IS NOT THE FIRST MISTAKE THAT HAS BEEN MADE IN THIS CASE. IT WON'T BE THE LAST. THERE ARE GOING TO BE OTHER ISSUES THAT COME UP BY BOTH SIDES. I THINK WE KNOW THAT AND THAT IS A FAIR STATEMENT BASED UPON WHAT HAS HAPPENED HERETOFORE. SO I WOULD ASK THE COURT TO CONSIDER ALL THOSE ISSUES, BUT MORE IMPORTANTLY, ON THE ISSUE OF AN INSTRUCTION, BECAUSE THAT WOULD ADVERSELY IMPACT THE INTERESTS OF OUR CLIENT, THE PEOPLE, AND ADVERSELY IMPACT THE CREDIBILITY OF THIS WITNESS IF THE COURT WERE TO GIVE ANY INSTRUCTION OF THE KIND THAT MR. UELMEN HAS PROPOSED. THAT IS SIMPLY ENTIRELY UNFOUNDED FROM A LEGAL PERSPECTIVE, FROM A COMMON SENSE PERSPECTIVE. IT IN NO WAY RELATES TO THIS WITNESS' CREDIBILITY. THAT INFORMATION THAT WAS AGREED NOT TO BE ELICITED, WAS PUT BEFORE THE COURT, AND WE WOULD ASK THE COURT SIMPLY TO TELL THE JURY THAT THE QUESTION AND THE ANSWER TO THE QUESTION ARE STRICKEN.

ALL RIGHT. DEAN UELMEN, TEN MINUTES.

THANK YOU. LISTENING TO THE RESPONSE OF COUNSEL WAS SOMEWHAT OF A DEJA VU EXPERIENCE. WE WERE HEARING LOTS OF ECHOES OF THE ARGUMENT THAT PRECEDED THE COURT'S IMPOSITION OF SANCTIONS AGAINST THE DEFENSE, THE I-WASN'T-THERE DEFENSE. I RECALL THAT MR. COCHRAN'S DECLARATION TO THE COURT INDICATED THAT HE CAME INTO THE CASE LATER, THAT HE DID NOT DIRECT THE ACTIVITY OF MR. PAVELIC AS HIS EXPLANATION OF WHY HE WASN'T AWARE THAT THE TAPE EXISTED WITH RESPECT TO ROSA LOPEZ, THAT WE DIDN'T KNOW IT EXISTED BEFORE.

WELL, LET'S NOT RELITIGATE THAT ISSUE.

ALL RIGHT. THERE WAS ONE THING THAT WASN'T ECHOED, YOUR HONOR, AND THAT WAS ANY EXPRESSION OF CONTRITION, NO APOLOGY. IN FACT, DEFIANCE. IN FACT, THE SUGGESTION BEING MADE THAT WE HAVE BEEN OVERLY GENEROUS IN WHAT WE'VE TURNED OVER TO THE DEFENSE. YOUR HONOR, THERE IS AN ATTITUDE PROBLEM HERE, AND FRANKLY, THE RESPONSE OF THE PROSECUTION, I THINK SHOULD CREATE GREATER ALARM FOR THE COURT. IT CERTAINLY CREATES GREATER ALARM FOR US THAN EXISTED PRIOR TO HEARING WHAT THEY HAD TO SAY. I MEAN, THE SUGGESTION THAT WHATEVER THE POLICE HAD IN THEIR FILE CABINETS, WE HAVE NO RESPONSIBILITY TO INQUIRE INTO EXCEPT TO ASK THEM IF THEY HAVE IT, THAT THIS IS NOT BRADY MATERIAL, THAT EVIDENCE OF THE SIGNIFICANCE OF THE -- OF THE VIDEOTAPE OF MR. SIMPSON'S DEMEANOR ON THE DAY THAT THE MURDER TOOK PLACE, THREE HOURS BEFORE THE MURDER TOOK PLACE, THAT THAT IS NOT BRADY MATERIAL, THAT THAT THIS TAPE SHOWN THE VERY DAY AFTER OF THE CONDITION OF THE PREMISES AND SHOWING THE BLOOD SPOTS, AND YOU KNOW, THE SUGGESTION THAT THIS WAS JUST ADMINISTRATIVE VIDEOTAPE, JUST DOESN'T WASH. IF THERE WAS ANY CONCERN THAT THE PEOPLE OR THE POLICE OR THE PROSECUTION MIGHT HAVE HAD THAT THERE WOULD BE SOME LIABILITY FOR THE PREMISES, THE CONDITION IN WHICH THEY LEFT MR. SIMPSON'S PREMISES, YOU WOULD THINK THAT WE WOULD HAVE HAD A VIDEOTAPE SHOWING THE PLUMBING JOB IN WHICH THEY ACTUALLY REMOVED THE DRAINPIPES FROM SOME OF THE PLUMBING FROM THE SINK IN MR. SIMPSON'S BEDROOM. THAT IS NOT EVEN ON THE TAPE. WHAT IS ON THE TAPE IS A PORTRAYAL OF GLOVES, A PORTRAYAL OF BLOOD SPOTS, ITEMS THAT ARE OF GREAT EVIDENTIARY SIGNIFICANCE IN THIS CASE, AND I THINK WHAT WE SEE IS AN AT ATTITUDE THAT JUST DOESN'T RECOGNIZE THAT THERE IS AN OBLIGATION TO MAKE THIS KIND OF EVIDENCE AVAILABLE TO THE DEFENSE. AND WE WOULD SERIOUSLY SUGGEST THAT PERHAPS YOUR HONOR NEEDS TO ORDER THAT THE PROSECUTION HAVE A LOOK AT WHAT IS IN THE FILE CABINETS. I MEAN, THE -- THE SUGGESTION THAT POLICE CAN JUST PUT THINGS -- PUT THING IN THE FILE CABINETS AND WE DON'T NEED TO WORRY ABOUT WHAT IS THERE, FRANKLY, WE ARE WORRIED. WE ARE MORE WORRIED NOW THAN WE WERE. IF THESE TWO ITEMS THAT HAVE SHOWN UP TARDILY ARE AN EXAMPLE OF WHAT ELSE MAY EXIST IN POLICE FILES, WE THINK YOUR HONOR SHOULD ORDER THE PROSECUTION TO MAKE A COMPLETE EXAMINATION OF ALL OF THE EVIDENTIARY ITEMS AND REPORTS IN THE POSSESSION OF THE POLICE DEPARTMENT AND THAT YOUR HONOR, IF THERE IS ANY QUESTION AT ALL, SHOULD YOURSELF EXAMINE THIS MATERIAL AND APPLY A TRUE STANDARD OF WHAT BRADY REQUIRES. APPARENTLY THE PROSECUTION JUST DOESN'T HAVE ANY CONCEPTION OF WHAT THEIR BRADY OBLIGATIONS ARE. NOW, WITH RESPECT TO THE SPECIFIC ITEMS HERE, THE VIDEOTAPE, FIRST OF ALL, YOUR HONOR, IS CORRECT, THAT THE -- THE SPECIFIC INQUIRY WAS MADE AS TO THE EXISTENCE OF THAT TAPE, SO WHAT WE HAVE HERE IS -- IS CONDUCT BORDERING ON WILLFULNESS, CERTAINLY CONDUCT SHOWING RECKLESSNESS AND CERTAINLY NO GREATER SHOWING OF WILLFULNESS THAN EXISTED WITH RESPECT TO THE ROSA LOPEZ TAPE.

ARE YOU SEEKING THE SUPPRESSION OF THE TAPE?

NO, WE ARE NOT. WE ARE NOT ASKING FOR PRECLUSION WITH RESPECT TO THIS TAPE. WE BELIEVE THERE IS EVIDENCE IN THIS TAPE THAT IS FAVORABLE TO THE DEFENSE THAT WE MAY WANT TO USE. THE PREJUDICE WE ARE ASSERTING, THOUGH, IS THAT WE GOT IT SO LATE THAT WE COULDN'T USE IT IN OUR MOTION TO SUPPRESS, WE COULDN'T USE IT IN CROSS-EXAMINING THE DETECTIVES IN CHARGE OF THE INVESTIGATION. AND COUNSEL DIDN'T EVEN ADDRESS THE QUESTION OF THE INCONSISTENCIES BETWEEN WHAT THIS TAPE SUGGESTS AND WHAT THE SEARCH WARRANT AFFIDAVIT SUGGESTED. SO WE BELIEVE WE HAVE MADE AN AMPLE SHOWING OF PREJUDICE WITH RESPECT TO THE FAILURE TO PRODUCE THIS TAPE AT AN EARLIER POINT. WITH RESPECT TO THE INVESTIGATION OF THE SHOES, THE EXPLANATION THAT AN INVESTIGATION IS ONGOING DOES NOTHING. IN FACT, IT SUGGESTS ONCE AGAIN THAT THE PROSECUTION INTERPRETS THEIR OBLIGATION AS SIMPLY DOING THEIR INVESTIGATION AND THEN WHEN THEY ARE DONE, TURNING OVER THE RESULTS OF THEIR INVESTIGATION.

NO. 1054.7 PROVIDES THE MEANS TO SHIELD CONFIDENTIAL MATTERS, IF IT IS NECESSARY TO DO SO, TO COMPLETE AN INVESTIGATION. THAT ARGUMENT DOESN'T APPLY, SO DON'T WASTE YOUR TIME WITH IT.

THEY SHOULD HAVE COME TO YOU AND SOUGHT THAT.

DON'T WASTE YOUR TIME WITH THAT.

ALL RIGHT. WITH RESPECT TO THE RELEVANCE OF THAT MATERIAL, FOR US TO DO FOLLOW-UP INVESTIGATION, THERE IS A LENGTHY CHAIN OF DISTRIBUTION THAT THE PROSECUTION IS ATTEMPTING TO TRACK DOWN, SHOWING WHAT MANUFACTURERS WERE ALLOWED TO USE THIS -- THIS PATTERN, WHAT -- WHICH OF THOSE MANUFACTURERS EXPORTED TO THE UNITED STATES, WHERE IN THE UNITED STATES SHOES THAT HAVE THIS PATTERN WERE ON SALE. THERE IS A LENGTHY CHAIN OF DISTRIBUTION THAT WE ARE GOING TO HAVE TO RETRACE IF IN FACT THEY ARE GOING TO OFFER EVIDENCE TO SUGGEST SOMEHOW THAT THESE SHOES WERE AVAILABLE FOR SALE IN THE UNITED STATES IN A PLACE WHERE THE DEFENDANT MIGHT HAVE -- MIGHT HAVE ACQUIRED THEM.

DID THESE 238 PAGES DEAL WITH THAT?

THEY DO. THEY DO INDEED. THERE ARE INQUIRIES TO SPECIFIC MANUFACTURERS, TO SPECIFIC DISTRIBUTORS, IN AN ATTEMPT TO TRACK DOWN WHERE THESE -- THESE SHOES WERE DISTRIBUTED AND SOLD. AND FINALLY, WITH RESPECT TO THE ISSUE ON THE SUPPRESSION, I THINK IT GOES WITHOUT SAYING THAT ANY COUNSEL WHO COME INTO THE CASE IS GOING TO HAVE TO FAMILIARIZE HIMSELF OR HERSELF WITH THE PRIOR RULINGS OF THE CASE. I MEAN, IF THE DEFENSE OR THE PROSECUTION CAN JUST BRING IN A NEW LAWYER AND IGNORE PRIOR AGREEMENTS AND RULINGS OF THE COURT AND THEN WHEN CALLED TO ACCOUNT, SAY, WELL, I WASN'T HERE WHEN THAT HAPPENED, THERE IS NO WAY THAT THIS COURT CAN CONDUCT A REASONABLE TRIAL. THE OBJECTION WAS MADE IMMEDIATELY AFTER THE CLOSE OF COURT YESTERDAY, AND AS I RECALL, THESE WERE THE LAST QUESTIONS ADDRESSED TO MR. FUNG AT THE END OF HIS TESTIMONY YESTERDAY, SO CERTAINLY I DON'T THINK WE CAN SUGGEST THAT THE DEFENSE WAIVED THIS ISSUE BY NOT MAKING A PROMPT OBJECTION. WE BELIEVE THAT SIMPLY STRIKING THE QUESTION AND THE ANSWER DOES NOT COMMUNICATE THE DEGREE OF EGREGIOUS MISCONDUCT BY COUNSEL INVOLVED IN ASKING AND ANSWERING THESE QUESTIONS. NOW, MR. GOLDBERG SAYS, WELL, AN INSTRUCTION DOESN'T MAKE ANY SENSE. TO TELL THE JURY THAT THEY SHOULD CONSIDER THIS WITH RESPECT TO THE CREDIBILITY OF MR. FUNG MAKES NO SENSE BECAUSE IT HAS NOTHING TO DO WITH THE CREDIBILITY OF MR. FUNG. THAT OVERLOOKS THE NATURE OF THE JURY INSTRUCTION AS A PUNITIVE MEASURE. THE FAILURE TO PROMPTLY DISCLOSE THE TAPE INVOLVING ROSA LOPEZ DIDN'T HAVE ANYTHING TO DO WITH HER CREDIBILITY EITHER.

YES, IT DOES.

IT DOES NOT, YOUR HONOR.

YES, IT DOES.

ALL RIGHT. I RESPECTFULLY SUGGEST THAT THE TAPE WAS PRODUCED, THEY DID HAVE IT AND THEY WERE ALLOWED TO USE IT FOR CROSS-EXAMINATION.

WHICH IS PRECISELY WHY IT GOES TO HER CREDIBILITY.

THE TAPE GOES TO HER CREDIBILITY.

ABSOLUTELY.

RIGHT, BUT DOES THE DELAY OF THE DEFENSE IN DISCLOSING THE TAPE GO TO HER CREDIBILITY?

AND THAT IS FOR THE JURY TO DECIDE.

THAT IS FOR THE JURY TO DECIDE AS A PUNITIVE MEASURE, TO PUNISH THE DEFENSE FOR NOT PRODUCING THE TAPE, AND FOR -- BY THE SAME TOKEN, WE WOULD SAY IT IS FOR THE JURY TO DECIDE WHAT CREDIBILITY THEY SHOULD GIVE MR. FUNG'S TESTIMONY WHEN THE PROSECUTION DELIBERATELY ELICITS EVIDENCE AND TESTIMONY THAT THE PRETRIAL AGREEMENTS PROVIDED WERE NOT TO BE ELICITED.

ALL RIGHT. COUNSEL, WIND IT UP, PLEASE.

ALL RIGHT. WITH RESPECT TO THE FINES, AGAIN WE ARE SIMPLY ASKING THAT THE COURT BE EVENHANDED AND ADDRESS THE QUESTION OF SANCTIONS FROM THE SAME PERSPECTIVE THAT YOU ADDRESS THEM WITH RESPECT TO THE DEFENSE COUNSEL. IN FACT, WE HAVE SUGGESTED MUCH MORE MODEST FINES BECAUSE WE DO NOT WANT TO DEPRIVE THE PROSECUTORS OF THE MEANS TO COME TO COURT SUITABLY ATTIRED, BUT I CAN CERTAINLY LOAN THEM --

THEY CAN BUY THEIR CLOTHES AT PENNEY'S LIKE I DO.

I CAN BUY THEM SOME SACK CLOTH. I THINK THEY WOULD LOOK GOOD IN IT, CERTAINLY BETTER THAN I WOULD LOOK IN A DRESS. TO CONCLUDE, YOUR HONOR, I THINK, FRANKLY, THE BEST WAY TO HANDLE THE WHOLE SITUATION IS SIMPLY WITHDRAW THE ORDER OF MARCH 1ST AND PUT OVER TO THE END OF THE TRIAL ALL ISSUES OF PUNITIVE SANCTIONS SO YOUR HONOR HAS THE BENEFIT OF A FULL RECORD OF THE CONDUCT OF COUNSEL THROUGHOUT THE TRIAL AT THE TIME YOU ADDRESS THESE ISSUES.

THANK YOU, COUNSEL.

YOUR HONOR, JUST FOR THE RECORD, THERE WAS NO PLUMBING TORN UP OR TAKEN OR DONE ANYTHING ELSE WITH ON THE 13TH.

THAT IS WRONG.

THAT IS WRONG.

ALL RIGHT. THE COURT WILL MAKE THE FOLLOWING ORDER IMMEDIATELY. THE DISTRICT ATTORNEY'S OFFICE IS ORDERED TO PREPARE AND SUBMIT TO THE COURT BY THE CLOSE OF BUSINESS APRIL 7TH AN INVENTORY OF ALL VIDEOTAPES THAT ARE IN EXISTENCE, EITHER IN THE POSSESSION OF THE DISTRICT ATTORNEY'S OFFICE, THE LOS ANGELES POLICE DEPARTMENT OR ANY OTHER AGENCY THAT IS INVOLVED IN THE INVESTIGATION OF THIS CASE. THE DISTRICT ATTORNEY'S OFFICE IS ORDERED TO PREPARE AND SUBMIT TO THE COURT BY THE CLOSE OF BUSINESS FRIDAY AN INVENTORY OF ALL REPORTS, LETTERS AND OTHER ITEMS REGARDING THE SHOES. THE COURT WILL TAKE UNDER SUBMISSION THE REQUEST FOR SANCTIONS, MONETARY SANCTIONS, AS TO ALL THREE OF THESE ITEMS. AND MR. UELMEN, WILL YOU SUBMIT TO THE COURT THE DRAFT LANGUAGE OF YOUR INSTRUCTION REGARDING THE TICKET AND BAGGAGE RECEIPT?

YOUR HONOR, VIDEOTAPES? COULD THE ORDER BE A LITTLE BIT MORE SPECIFIC? BECAUSE THERE IS NEWS FOOTAGE I THINK -- MEDIA RELATIONS DEPARTMENT HAS TAPED THIS CASE FOR DAYS AND DAYS AND DAYS.

INVENTORY OF ALL VIDEOTAPES, ALL, FRIDAY, NOON.

THE NEWS SHOWS WE HAVE TAPED FOR THE LAST SEVERAL MONTHS? I DON'T MEAN TO BE IMPERTINENT.

ALL VIDEOTAPES, EACH AND EVERY ONE. THIS IS THE SECOND TIME THE PROSECUTION HAS POPPED UP LATE WITH A VIDEOTAPE.

THIS ONE WAS NOT IN OUR POSSESSION. I HAVE ALREADY MADE THAT POINT.

BUT WE KNEW IT EXISTED AND INQUIRY WAS MADE SEVERAL TIMES.

WE DIDN'T -- AS I HAVE TOLD YOU, WE DID NOT KNOW IT EXISTED. DETECTIVE LUPER DID; BUT WE DIDN'T.

WELL, DETECTIVE LUPER IS PART OF THE PROSECUTION TEAM, I TAKE IT.

NOT UNDER THE PENAL CODE SECTION COVERING OUR DISCOVERY OBLIGATIONS, YOUR HONOR.

I AGREE. THE THINK THE PROSECUTION IS VERY FORTUNATE THAT THAT STATUTE WAS WRITTEN BY PROSECUTORS.

AND PASSED BY THE VOTERS OF THIS STATE, YOUR HONOR. THAT WAS AN INITIATIVE THAT THE VOTERS APPROVED OF.

I AGREE, AND THAT IS THE DISABILITY THAT THE DEFENSE HAS, BECAUSE THE DEFENSE OBLIGATIONS ARE SPELLED OUT MUCH MORE CLEARLY THAN THE PROSECUTOR'S OBLIGATIONS ARE. IT IS AN INTERESTING STATUTE. ALL RIGHT. WE WILL TAKE A TEN-MINUTE COURT REPORTER RECESS AND THEN WE NEED TO TAKE UP THE PRESUMPTIVE TEST ISSUE. I WOULD LIKE TO SEE COUNSEL IN CHAMBERS FOR THE TEN-MINUTE RECESS. I WANT TO KNOW WHAT YOUR POSITION IS ON THE PRESUMPTIVE BLOOD TESTS.