ALL RIGHT. THE RECORD SHOULD REFLECT THAT THE JURORS HAVE LEFT THE COURTROOM. TWO THINGS: MR. SCHECK, THE PRINTOUT -- MR. HARRIS, THE PRINTOUT DOESN'T QUITE --
ALL RIGHT. BECAUSE IT DOESN'T HAVE THE DRAG MARKS SO WE NEED THE FULL FRAME AS WE SPEAK SO I CAN KEEP THIS AS A SOUVENIR. ALL RIGHT. MR. GOLDBERG, WHAT IS YOUR OBJECTION TO THE VIDEO EXHIBIT?
WELL, THERE IS ANOTHER VIDEO WHERE A SERIES OF PHOTOGRAPHS, THREE OF THEM, HAVE BEEN TAKEN -- PUT IN SOME CHRONOLOGICAL SEQUENCE BY THE DEFENSE RATHER THAN THE CONTINUOUS VIEWING OF WHAT HAPPENED AT THE CRIME SCENE, SO WE OBJECT ON THOSE GROUNDS. ALSO, I DON'T RECALL HAVING SEEN ONE OF THE SHOTS IN THERE FROM MY REVIEW OF THE VIDEOTAPE PROVIDED BY THE DEFENSE.
ALL RIGHT. IS IT POSSIBLE AFTER WE CONCLUDE, IS IT -- IS MR. HARRIS AVAILABLE TO EXHIBIT THESE MATTERS TO MR. GOLDBERG?
YOUR HONOR, I REPRESENT TO YOU THAT THERE IS TWO SETS OF VIDEOS AND IF MR. GOLDBERG AND THE PROSECUTION LOOK, THEY WILL SEE TWO VERSIONS OF THIS; ONE THAT IS AS DEPICTED HERE AND ANOTHER ONE THAT HAS THE COUNTER ON IT.
WE CHOSE THE ONE WITHOUT THE COUNTER ON IT BECAUSE IT GIVES IT A VIEW THAT IS UNOBSTRUCTED BY THE COUNTER, BUT I'M CONFIDENT THAT IF THEY GO BACK AND LOOK AT THE VIDEO, THEY WILL SEE THIS.
THE PROBLEM MAYBE IS I WAS ABOUT TO SAY IS BECAUSE IT IS EDITED INTO THREE SEPARATE SEGMENTS THAT ARE ARRANGED IN SOME CHRONOLOGICAL ORDER BY THE DEFENSE, IT MAY BE THAT I'M NOT RECOGNIZING ONE OF THOSE THREE SEQUENCES, BUT WE OBJECT TO THE SEQUENCE ITSELF IN THAT I THINK WHAT COUNSEL IS TRYING TO PORTRAY IS SOME SORT OF HISTORICAL VIEW OF WHAT HAPPENED AT THE CRIME SCENE AND THE CHRONOLOGICAL ORDER, AND THIS VIDEOTAPE HAS BEEN APPARENTLY EDITED, IT DOES NOT DO THAT, BECAUSE IT IS SHOWING THREE DISTINCT THINGS.
YOUR HONOR, I THINK THAT WHAT THIS VIDEO DEPICTS IS -- AND MR. GOLDBERG CAN GO BACK AND LOOK AND CONSULT WITH THE ORIGINAL FOOTAGE AS MUCH AS POSSIBLE, BUT I THINK WHAT -- THERE IS AN OBJECT ON THAT SCREEN THAT WE BELIEVE COULD WELL BE THE GLOVE THAT IS ON THE WALKWAY NEAR THE BLANKET AND IT IS THERE DURING THESE PERIODS OF TIME WHEN MR. VANNATTER IS WALKING THROUGH, WHAT I THINK IS CONSISTENT WITH HIS TESTIMONY AT ABOUT 9:45 WHEN HE IS GOING TO CONSULT DETECTIVE LANGE FOR THE WARRANT. WE HAVE OTHER FOOTAGE OF MR. FUNG AND DETECTIVE VANNATTER CONVERSING. THEY CAN LOOK AT THAT. MR. JOHNSON, THE WITNESS TESTIFIED, WALKED THROUGH THE CRIME SCENE. I THINK THIS IS A CLEAR PICTURE OF THAT. AND THEN FINALLY WE HAVE MR. FUNG PLACING DOWN THE EXHIBITS. THIS SEEMED TO BE THE MOST EXPEDITIOUS WAY TO ZERO IN ON THE ISSUE AND ASK HIM IF HE KNOWS WHAT THAT OBJECT IS.
ALL RIGHT. SO YOU ARE SAYING THAT ONE OF THESE VIDEOS IS GOING TO HAVE SOMETHING THAT APPEARS TO BE THE GLOVE ON THE WALKWAY? LET'S SEE IT AGAIN.
ALL THREE OF THEM DO. WE WANT TO MAKE AN INQUIRY AS TO WHAT THE OBJECT IS BECAUSE IT LOOKS TO US LIKE THE GLOVE AND WE WANT THE WITNESS' BEST RECOLLECTION AND VIEW AS TO WHAT THAT OBJECT IS. THAT IS THE PURPOSE OF SHOWING HIM THESE.
UMM, TO THE BEST WE CAN RECONSTRUCT IT IT IS, BUT I THINK THAT THE IMPORTANT POINT, AND WE COULD MAKE THIS CLEAR TO THE JURY, IS THAT ALL OF THESE SHOTS ARE TAKEN AT A POINT PRIOR TO THE TIME THAT MR. FUNG SETS DOWN THE CARD, THE PHOTOGRAPHS ARE TAKEN AND THE GLOVE IS COLLECTED.
WE CONTEND THAT IS THE GLOVE. IT GOES IN AND OUT OF FOCUS. WE THINK THAT IS CLEARLY IN A POSITION EITHER ON OR NEAR THE BLANKET INSIDE THE TILES. WE STOPPED IT THERE. SO WE WANT TO HAVE MR. FUNG TAKE A LOOK AT THAT. HE HAS PREVIOUSLY SEEN THIS FOOTAGE, BUT PERHAPS HE DIDN'T NOTICE IT.
KEY QUOTETHE NEXT ONE I BELIEVE IS DETECTIVE VANNATTER WALKING THROUGH, AND I THINK THE SAME OBJECT CAN BE SEEN NEAR HIS FEET. FINALLY, WE HAVE MR. FUNG PLACING DOWN THE CARD AND I THINK IN THAT SHOT YOU CAN SEE THE OBJECT IN THE SAME POSITION AS WHEN MR. JOHNSON AND DETECTIVE VANNATTER WERE WALKING THROUGH WITH MR. FUNG PUTTING DOWN THE EVIDENCE CARDS.
YOUR HONOR, IS IT POSSIBLE THAT WE COULD TAKE THIS UP IN THE MORNING SO THAT I COULD HAVE AN OPPORTUNITY TO TAKE A CLOSER LOOK AT THE STILL PHOTOGRAPHS AND ALSO THE VIDEO?
HOW ABOUT IF WE DO THIS: I HAVE A WHOLE PANOPLY OF MEDIA MOTIONS TO ADDRESS, SO IF YOU WANT TIME TO LOOK AT THESE ITEMS, I'M SURE YOU HAVE THE SAME VIDEOTAPES, CORRECT?
LET ME MAKE ONE THING CLEAR, YOUR HONOR: THERE ARE TWO CASSETTES OF VIDEOS THAT I AM SURE MR. GOLDBERG AND MR. FUNG HAVE LOOKED THROUGH, IT IS THE SAME TWO CASSETTES, AND I THINK THE COURT HAS A COPY OF THOSE CASSETTES AS WELL. WE HAVE MADE THOSE AVAILABLE SINCE THE OPENING STATEMENT. IF YOU WILL LOOK THROUGH THOSE YOU WILL SEE THIS A NUMBER OF TIMES. AND I WILL MAKE ONE FURTHER REQUEST, HOWEVER, AND I REALIZE IT HASN'T BEEN THE CUSTOM AND PRACTICE IN THE COURT, BUT I WOULD MAKE A REQUEST THAT THE PROSECUTOR BE CONSTRAINED NOT TO DISCUSS THIS ISSUE WITH MR. FUNG PRIOR TO HIS RETURN TO THE STAND TOMORROW, BECAUSE WE THINK THAT THIS IS IMPORTANT IMPEACHMENT MATERIAL AND WE DON'T THINK THAT THEY OUGHT TO BE DISCUSSING THEIR ARGUMENTS WITH HIM BEFORE HE ANSWERS THE QUESTIONS ON THIS ISSUE.
YOUR HONOR, I WOULD OBJECT TO THAT. THERE IS NO PROHIBITION UNDER CALIFORNIA LAW FROM THE PARTIES DISCUSSING MATTERS WITH THE WITNESSES AND THERE IS NO BASIS -- LEGAL BASIS FOR THE DEFENDANT'S MOTION.
YOUR HONOR, I MUST -- MAY I DEFER AND MAKE THIS ONE EXCEPTION? I COME FROM JURISDICTIONS WHERE IN FACT THIS RULE IS IN PLACE, GENERALLY SPEAKING, BUT I WOULD DEFER TO MR. COCHRAN TO MAYBE ADDRESS THIS QUESTION SINCE HE KNOWS THESE MATTERS BETTER THAN I.
IN THAT CASE I WILL ASK LEAVE OF THE COURT TO ADDRESS THE COURT AS WELL ON THIS ISSUE. I'M SORRY, BUT MR. SCHECK HAS COME INTO THIS COURT AND WHEN THEY DO THAT --
SHE IS ALREADY TALKING, YOUR HONOR, AND RATHER THAN HEAR THAT, LET ME TALK TO MR. SCHECK, MAY I PLEASE, YOUR HONOR?
LAST POINT I WANT TO MAKE IN THIS REGARD IS THAT WE WERE UNFORTUNATELY CUT OFF BY THE OBJECTIONS BEFORE WE COULD FINISH THIS IMPEACHMENT, AT THE BREAK, AND ALL WE WANT IS TO BE PUT IN THE SAME POSITION THAT WE WERE JUST PRIOR TO THE BREAK WHEN THE WITNESS WAS BEING CONFRONTED WITH THE VIDEO.
WELL, YOUR HONOR, I THOUGHT WE HAD RULES IN THIS COURT THAT WE WERE SUPPOSED TO SEE THE EXHIBITS BEFOREHAND AND PARTICULARLY WITH SOMETHING LIKE VIDEO. I THINK THIS HAPPENED AT ABOUT FIVE MINUTES OF.
WELL, I'M NOT PARTICULARLY CONCERNED WITH THAT. HE HAS ASKED THAT I MAKE AN ORDER THAT YOU NOT DISCUSS THE MATTER WITH MR. FUNG BETWEEN NOW AND TOMORROW MORNING WHEN HE IS SHOWN THE VIDEO MATTERS BEFORE THE JURY. WHAT IS YOUR COMMENT ON THAT?
MY COMMENT IS THAT THE LAW AND PRACTICE OF THE STATE OF CALIFORNIA IS THAT WE ARE ALLOWED TO TALK TO OUR WITNESSES. YOU ARE ALLOWED TO TALK TO YOUR WITNESSES AT BREAKS. YOU ARE ALLOWED TO TALK TO THEM OVER LUNCH, BEFORE TRIAL, AFTER TRIAL AND SO ON. WE KNOW THAT IS THE RULE, SO WHY WOULD WE MAKE AN EXCEPTION -- CARVE OUT AN EXCEPTION FOR THIS WITNESS THAT WE DIDN'T CARVE OUT FOR ANYONE ELSE, THAT WE DIDN'T CARVE OUT FOR ROSA LOPEZ OR ANY OF THE OTHER WITNESSES THAT TESTIFIED OVER A NUMBER OF DAYS AND HAVE THE OPPORTUNITY TO SPEAK TO THE PARTIES, TO THE ATTORNEYS REPRESENTING EITHER SIDE, OVER THOSE BREAKS? I DON'T SEE ANY REASON TO IMPOSE SOME DIFFERENT RULE WITH MR. FUNG THAN IS CUSTOMARILY APPLIED IN THIS STATE IN THIS COURT AND IN THIS CASE IN PARTICULAR.
ALL RIGHT. MR. SCHECK, I AM NOT AWARE OF ANY STATUTORY AUTHORITY IN THE EVIDENCE CODE THAT GIVES ME THE POWER TO DO WHAT YOU ARE ASKING.
ONE FINAL REQUEST IN THAT REGARD THEN. I WOULD MAKE THE ARGUMENT TO YOUR HONOR THAT THE OBJECTION AT THE END I THINK IS A SIMPLE TACTICAL MATTER WHICH PREVENTED THE IMPEACHMENT AT THE APPROPRIATE TIME, SO I WOULD ASK THE COURTS -- SURE, YOU HAVE DISCRETION. IF IT IS NOT IN THE EVIDENCE CODE, I'M SURE YOU HAVE DISCRETION.
LET'S ASSUME THAT I DO. I DECLINE. ALL RIGHT. ALL RIGHT. THEN COUNSEL -- BUT THIS PICTURE SPEAKS PRETTY POWERFULLY FOR ITSELF.
JUST FOR THE COURT'S EDIFICATION, I HAVE EXAMINED ALL THESE PHOTOGRAPHS VERY CAREFULLY AND THERE ARE SOME OTHERS THAT I WILL CALL TO THE COURT'S ATTENTION THAT WE HAVE CONSIDERED IN THIS REGARD AND THAT IS THAT THERE IS ANOTHER SHOT THAT I'M SURE THE PROSECUTORS HAVE SEEN THAT CONTAINS SOME LEAVES, ALL RIGHT, IN THE AREA WHERE THE PHOTOGRAPH WAS TAKEN. AND IN OUR JUDGMENT THOSE LEAVES CANNOT ACCOUNT FOR WHAT WE SEE ON THAT SCREEN, AND SO IF THEY ARE GOING TO MAKE AN OBJECTION THAT THEY THINK THIS IS MISLEADING BECAUSE THERE IS ANOTHER PHOTOGRAPH BECAUSE THERE IS LEAVES IN THAT AREA, I DON'T THINK THAT IS CONSISTENT WITH THE GLOVE, SO MAYBE TO SAVE SOME TIME I WILL PROFFER THESE PHOTOGRAPHS TO THE COURT, YOU CAN EXAMINE IT AND EXAMINE THE VIDEO AND MAYBE WE CAN MOVE ON QUICKLY TOMORROW WITH THE IMPEACHMENT.
WE WILL TAKE IT UP TOMORROW MORNING. I WILL GIVE THE PROSECUTION TIME TO SEARCH THEIR VIDEOTAPES AND LOOK AT THIS THING. I WILL ASK MR. HARRIS AND MISS FITZPATRICK TO STICK AROUND SO THAT WE CAN ALL TAKE A LOOK AT IT AGAIN, BUT I NEED TO DEAL WITH THE MOTIONS THAT I HAD SCHEDULED FOR FOUR O'CLOCK.
WE CONTEND THAT IS THE GLOVE. IT GOES IN AND OUT OF FOCUS. WE THINK THAT IS CLEARLY IN A POSITION EITHER ON OR NEAR THE BLANKET INSIDE THE TILES.
BUT THIS PICTURE SPEAKS PRETTY POWERFULLY FOR ITSELF.
I AM NOT AWARE OF ANY STATUTORY AUTHORITY IN THE EVIDENCE CODE THAT GIVES ME THE POWER TO DO WHAT YOU ARE ASKING.
WE ARE ALLOWED TO TALK TO OUR WITNESSES. YOU ARE ALLOWED TO TALK TO YOUR WITNESSES AT BREAKS. YOU ARE ALLOWED TO TALK TO THEM OVER LUNCH, BEFORE TRIAL, AFTER TRIAL AND SO ON.