May I have a moment, your Honor?

All right. Mr. MacDonell, you indicated, did you not, that you have been paid 10,500 for your work thus far?

That is correct.

And how much are you paid per day to testify?

Ordinarily if I am out of the laboratory for a day overnight I charge $3,000, but in a case of this type where I have traveled so many times and been away from the laboratory so many hours, I cannot charge a rate like that. I really don't know how much time I will charge for. I do not charge on a hourly rate when I've spent this much time. I will charge a fair rate for the amount of time and effort I have put into case.

All right. You, as of April 2nd, 1995, had been paid $10,500; is that correct?

That includes some travel expenses and my associate and other things. That is not just a basic profit so to speak.

And that was up to the point of your examination of April 2nd, 1995, that you had been paid 10,500; is that correct, sir?

I believe so, yes.

And since that time have you submitted any further bills?

No. I haven't had time.

And you have done further work, though, nevertheless, have you not?

Yes, I have.

You have done several day's worth of work, would that be fair to state?

Yes, and I have been here three times I think since then.

And you have been here for the purpose of your testimony how many days now?

I would say maybe ten days, eight or ten days, very close to that. I can look it up. I was here from the 7th to the 12th, the 16th to the 20th, the 25th to the 28th and I'm here again, so that would be--

I'm sorry, sir. 7th to the 12th of July?

Excuse me. That is--that was another meeting. That was in Philadelphia. I came the 16th to the 20th. That would be five days, and the 25th to the 28th, four days, and I've been here two days, so that would be eleven days.

All right. And ordinarily in the average case you charge 3000 a day?

That is correct.

So if you were to charge--

That is to stay overnight. That would be two days.

All right. And in this case you have eleven days down, correct?

That's correct.

So if this were your average case, you would have charged 33--this is terrible. This is terrible. Roughly $18,000 for your work thus far if it had been the average case, correct?

No.

Objection.

It would have been several--

Wait, wait, wait. Mr. Fairtlough, keep your voice down. If I can hear you, it is way too loud.

Yes, your Honor.

Sustained. Rephrase the question.

If you were charging your average fee in the average case at $3,000 per day after eleven days being present, how much would that be?

Objection.

Sustained. He said he is not going to bill on his normal schedule.

How do you intend to bill, sir?

I'm not really sure. I must confess I have never had a case that has been of this type. I will be fair and not do anything that will cost more money. I've saved the Defense considerable money by using golden opportunities, air flights booked at $300.00 a trip instead of the first two were $1409 a ticket. I think I've saved them $3300 on that alone. I'm not trying to make a profit, just a reasonable wage.

Your Honor, there would be an objection, motion to strike as nonresponsive.

Overruled.

Mr. MacDonell, I'm attempting to ask you now what you intend to bill the Defense. Can you answer that question, sir?

Not at this point.

Do you intend to bill them at fifty percent of your normal rate?

Objection. Asked and answered, your Honor.

Overruled.

I really don't know. I have never had a case like his. I will be fair and charge them what I think the amount of time I put in would have been had I been in my laboratory. I do not charge a rate everyday because I don't spend eight hours a day.

Mr. MacDonell are you attempting to convey to this jury that you are not in this for the money?

Sustained.

Objection, your Honor.

Sustained.

You do intend to make a profit on your work in this case, do you not?

I hope so yes.

Since you have spent at least eleven days since April 2nd of 1995, you do intend to make more money than the 10,500 you have already been paid; isn't that correct?

I really don't know until I have sat down and assessed the time I have spent. I would say that is an approximation that might be accurate, but I do not wish to limit my bill by stating in court what I'm going to charge. I have done that before and that is all the attorney would pay me because under oath I said I'm going to charge $400.00 more and it turned out to be 550 or something and they wouldn't pay me the extra 150, so that is why I say I will be fair, but I don't want to commit myself to something and then find out I have to live with it and feel I didn't get a fair price.

All right. Do you feel that you will bill at least 10,000 more for the services you have rendered?

Objection, asked and answered. He said he--

Overruled.

As far as the amount of expenses go on top of what I have done, I would say that is approximately close.

To the minimum that you will bill?

It might exceed it. I don't know.

All right. Let's move on.

Sir, you indicated that you are a New York state crime lab board member?

I was.

For the advisory committee?

I was, yes.

Isn't it true, sir, that you last attended a meeting of that advisory committee in 1982?

That is probably right. They quit sending me the notices of the meeting and so I couldn't go.

And you were not involved in quality control; isn't that correct?

That's correct.

Now, at this point, sir, with the one photograph of the one ball that you have shown us, at this point all we have is your memory and your testimony to rely upon for the appearance of all the other little balls, the six or seven that you have seen; is that correct?

Objection, argumentative and asked and answered this subject six times.

Sustained.

May we approach, your Honor?

Proceed.

No, not on the question. May we approach?

Yes.

Counsel's repeated speaking objections which have been very loud and very vociferous have gone unchecked by the Court thus far, although the Court has warned counsel.

I warned him in front of the jury. This is a pretty severe sanction, I think.

And the People are asking that counsel be admonished to refrain from these speaking objections. I think it is very unfair. I think it is deliberately disruptive. It has required us to step back and regroup a number of times and that is why the "Asked and answered" objections are particularly unfair when we are being precluded from getting the answer because of counsel's repeated speaking objections which are lengthy and loud.

All right. Your request is considered. I have already admonished Mr. Neufeld to--regarding his objections.

Your Honor, guidance on one thing because she is raising an issue in point. Am I not allowed to say, "Objection, hearsay" or "Objection, asked and answered"? Am I only allowed to say "Objection"?

You are allowed to state the legal grounds.

Is "Asked and answered" a legal ground? That is all I'm asking. I won't do it again.

It is in the common parlance here, although it is not technically asked.

It is "Asked and answered six times now" and "How many times do we have to go over this?"

I know. I've already admonished him once in front of the jury, Miss Clark. That is a pretty severe sanction.

Okay.

It is one the People have suffered a number of times.

Yes, it is.

All right. Thank you, counsel. Proceed.

At this point, in view of the fact that we have no photograph of the six or seven other little balls, we have only your testimony to rely on; is that correct, sir?

Objection, argumentative, asked and answered.

Overruled. Sustained.

I didn't get an answer last time.

I have sustained the objection, counsel.

Sir, is it your testimony that we rely on right now with respect to the appearance of how those other little balls looked, your verbal description?

Objection, asked and answered.

Overruled. That is a different question. You can answer the question.

Apparently so.

And sir, you cannot say when those little balls got onto the--that inner surface before your examination on April 2nd, 1995; isn't that true?

Objection, asked and answered yesterday.

Overruled.

That's true.

And you cannot say that the compression stain that occurred on the outer surface of the sock was made at the same time that the little balls got onto the inner surface on the other opposite inner side?

I can put a limit on it, yes.

But you cannot say that they occurred at the same time, can you, sir?

No, they couldn't have occurred at the same time. One had to precede the other. If--maybe by just a second or a fraction of a second, but the inside did not occur--on surface 3 did not occur before 1 and 2.

And you cannot say exactly when it occurred after the outer compression stain was made; isn't that correct, sir?

That's correct.

And you cannot even tell this jury that those little balls on the inner surface are associated with the outer compression stain; isn't that correct?

I conclude that they were.

But you cannot tell this jury that they were absolutely associated with the same outer stain; isn't that correct?

That is correct.

Now, sir, just with respect to the outer compression stain or swipe, either one that you say it now can be, you cannot exclude the possibility, can you, that the stain was made during the commission of the murder at Bundy; isn't that correct?

Objection. Asked and answered yesterday.

Sustained. That question was asked yesterday.

Sir, you cannot exclude the possibility then that that outer compression or swipe stain was made by making contact with the step covered with the blood of Nicole Brown; isn't that correct?

Objection, asked and answered.

Overruled.

That is correct.

You cannot exclude the possibility that that outer compression or swipe stain on the sock was made at the time of the murder as the murderer stepped near the neck of Nicole Brown; isn't that correct?

Well, the neck--it is possible, yes, but I would sooner think your example yesterday of a thumb or something that sticks out would be more likely. The neck would be too wide an area of blood staining to limit the transfer to that size stain. I mean it might be possible, but I would agree more with a thumb or something that sticks out.

Then you would agree, sir, that it would be more probable that it would be the thumb or bloody hand of Nicole Brown that could have come in contact with the sock to create that compression stain; is that correct?

Sustained. Sustained. Speculation, counsel.

You cannot exclude that possibility can you, sir?

Objection. Asked and answered yesterday, and argumentative.

Overruled. Sustained.

I cannot exclude.

I'm sorry.

Sustain the objection. It is speculation. Proceed.

Sir, can you exclude the possibility that the stain on the outer--that the outer stain that you call a compression or a swipe could have been made by brushing up against the bloody hand of Nicole Brown?

Speculative and asked and answered.

That was asked yesterday. Sustained.

All right. Sir, you were not present--we showed photographs yesterday of the pheno tests done with that swab in this picture. Do you recall that?

Yes.

And we discussed the performance of that pheno test that uses distilled water to perform the test, correct?

You can use distilled water, yes.

It was apparent to you, from looking at the photograph of the sampling step that was being shown in that photograph, that that was the method that was being used in that--with the sock, correct?

Your Honor--

Correct.

Objection, asked and answered.

Overruled.

That's correct.

All right. Now, that test you were not present when it was conducted; isn't that correct?

That's correct.

You do not know how much pressure was applied by the person swabbing the sock with that Q-tip, correct?

That's correct.

You do not know how much water was used in swabbing the sock with that q-tip, correct?

I don't know how much they used. I know how much they should have use.

Okay. But you don't know how much they did use, do you?

That's correct.

You don't know how large an area was swabbed, do you?

No, I don't.

And if the blood was difficult to see and this test was being conducted under normal lighting in an effort to do a blood search with that swab, it could have been a very large area, could it not, sir?

Objection, speculation.

Sustained.

Nevertheless, you do not know how large an area it was?

Excuse me, counsel. If I hear the bases and I hear urgings for objections and if I can hear it, the jury can hear it. Proceed.

Since you were not present then, sir, you cannot tell us what large--how large an area was swabbed with that swab, correct?

I can state that it did not go to the edge of the stain itself, because the blood is very clear, crisp and sharp at the edge of the stain. Gad a swab that was wetted, gone into that area, it would have diluted and diffused it and it would not look as it does, so it would be confined more to the center than the periphery. That is the only limit I can put on it.

With that limitation, sir--but you cannot tell us what portion of the stain contributed the little balls on surface 3, whether it was the periphery or the center of the stain, can you?

Yes. I can eliminate the periphery because it did not soak through the fabric, only the center area soaked through, so that is the only area that could have caused the staining on the third side.

And that is the only area where the pheno test was conducted, in your opinion, sir?

That's where they should have conducted it, where it is the most concentrated, yeah.

Well, didn't you just testify, sir, that based on your observation of the periphery of the stain that the way it appeared there was not water swabbed around that periphery that you saw?

Objection as to the term "Water swabbed."

Sustained. Misstates the evidence is what the correct objection is, counsel.

Thank you, your Honor.

Sir, we discussed the performance of that pheno test using distilled water, correct?

Yes.

And in the sampling process you would use a wet q-tip to swab the area to see if there was something that appeared to be worth testing, correct?

Yes.

And you were not present when that test was performed, we've already established that, correct?

Correct.

So in the--in the swabbing process with a wet q-tip using an amount of pressure you are not aware of, it is your opinion, based on what you saw, that the periphery was not sampled in that manner, that the center of the scene was sampled in that manner, correct?

Objection as to the form of that question.

Overruled.

Yes, that's correct, if it was very wet, the q-tip.

And it is your opinion, sir, that the little balls on surface 3 came from that center part of the stain where you opine the swabbing was done?

It was done through the cut-out, which is basically the center.

Which is where you opine the swabbing was done?

That's correct.

Did you test the little balls in any manner to determine whether or not if they were blood they were diluted in some manner?

Objection, asked and answered yesterday.

Sustained.

No, I didn't ask about dilution.

That's correct. Reask the question.

Did you test the little balls in some fashion to determine whether if they were blood they were diluted?

I didn't do any testing. I did an observation and they were deep red and did not appear to be diluted at all.

Nevertheless, sir, did you not test; is that correct?

I don't know what test you could apply on something that small. I did not; I don't think anyone could.

So then you cannot tell this jury that that--whatever it was was not diluted in some fashion, can you, sir?

Objection. Misstates his testimony.

Overruled.

I conclude it wasn't, but I cannot say absolutely one, that it is transferred from the outside and if it were it would be blood, and two, that it is not a concentration in some fashion, but I cannot conceive of how that could occur. It appears to be a fresh sample of a red fluid that is dried and bonded to a fiber.

And testing, is it not, sir?

Objection. I think he should be allowed to finish his answer.

Sustained. Let him finish.

Observation and then testing. You have to observe something to determine what you might test for. I think it goes in that order.

Right, and based upon your observation you form a hypothesis, do you not, or a theory, do you not?

I form the conclusion.

But then you go to test that conclusion to determine whether it is correct or not; isn't that true, sir?

If it is possible to do so you should, yes.

And is it not true, sir, that on occasion it will help that you have a theory based on your observation that is disproven by testing? Doesn't that happen, sir.

Vague. Objection.

Overruled.

It could, yes.

And in this case, sir, you formed a conclusion based on your observation which you could not test; isn't that correct?

That is correct.

And so you cannot rule out the possibility that whatever you observed that substance was in those little balls was diluted or not? You cannot rule out the possibility that they were diluted, can you, sir?

Objection, asked and answered.

Overruled.

Nevertheless, if you had tested those little balls in some fashion you might have been able to; isn't that correct?

Sustained. Sustained.

And sir, you cannot rule out the possibility that those little balls were created at the time that the pheno test was conducted on August 4th; isn't that true?

Only--it could only be ruled out if the testing was done in the normal procedure, not using a saturated q-tip. That is not what you use when you have a stain of that size. So if it was done properly, there would not be enough liquid to dissolve any blood and transfer it to the inner surface, surface 3, and if it was, it would not appear that red. That is my conclusion.

And what test did you do to support that conclusion, sir?

There is no test you can do except observation with good optical equipment.

Sir, what experiments did you perform on the material of this sock to show that a pheno test using distilled water on a swab would not produce those little balls on the opposite inner side?

I didn't have the socks to experiment with. I didn't do that.

Did you make any attempt to experiment, as I have suggested, performing a pheno test on a bloodstain to see if that would cause some seepage of microscopic quantities onto the opposite inner side?

Objection, no foundation.

Overruled.

Not on that sock.

Did you attempt to do it on any substance or material that was identical to or very similar to that sock?

Yes.

You did a pheno test and attempted to observe whether there were microscopic particles on the opposite inner side after you performed the test?

I didn't do a pheno test or a phenolphthalein test because I knew it was blood. I put it on the material myself.

And can you show us the documentation from the pheno test that you conducted with distilled water and a swab on material just like those socks?

Misstates the evidence.

Sustained. Sustained.

Sir, what experiment did you perform on material just like these socks to show that a pheno test on a bloodstain on an outer surface that is just like this bloodstain would leave the microbes or not leave those little balls on the opposite inner side?

I applied blood to a similar material, a stocking that was of the lightweight polyester composition, and brushed it on lightly, enough to soak through, and after that I cut out a portion and observed the side opposite corresponding to side 3.

Objection. Objection, your Honor. This is not my question. This is nonresponsive.

Sustained.

Motion to strike.

The answer is stricken.

Mr. MacDonell, please listen to my question. I am asking you now whether you took material just like these socks with blood on it, performed a sampling with a wet q-tip, pressing down with that wet q-tip to sample the blood and then observed the opposite inner side after it had dried to see if there were little balls like those observed on this sock? Did you do that, sir?

Thank you, sir.

And lastly, sir, you cannot rule out the possibility that those little balls that you observed are the result of someone with a bloody hand pulling off their socks, can you?

Objection. Asked and answered yesterday.

Sustained.

Did I? I have nothing further.