Recross-examination of Prof. Herbert MacDonell

📄 Recross-examination of Prof. Herbert MacDonell — Tuesday, August 1, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\1\RECROSS-EXAMINATION-OF-PROF-HE.DOC

TRIAL

▲ Day 126 of 167

◀ Redirect examination of Prof. Herbert MacDonell (part 3) Request for final redirect examination ▶

Witness: Prof. Herbert MacDonell
Examiner: Marcia Clark
Called by: Defense • Date: Tuesday, August 1, 1995 • Utterances: 126

Marcia Clark recrosses blood spatter expert Prof. Herbert MacDonell, pressing him on whether the microscopic blood 'balls' on the inner surface of OJ's socks could have been caused by innocent transfer rather than planting. She also elicits agreement that the absence of blood on a perpetrator does not mean non-participation in a crime — a concession that cuts against the defense's own witness.

# 1 THE COURT:

Miss Clark.

RECROSS-EXAMINATION BY MS. CLARK

# 2 MS. CLARK:

But you cannot--you cannot tell this jury that the stain from surface 2 and the stain to surface 3 occurred at the same time, correct?

# 3 PROF. MACDONELL:

That is correct.

# 4 MR. NEUFELD:

Vague as to time.

# 5 THE COURT:

Overruled.

# 6 MR. NEUFELD:

Same time.

# 7 MS. CLARK:

And if there are little round balls already formed on surface 2, sir, you cannot rule out the possibility of transfer to surface 3, correct?

# 8 MR. NEUFELD:

Objection as to "Transfer."

# 9 THE COURT:

Overruled.

# 10 PROF. MACDONELL:

I do not understand the question, I'm sorry.

# 11 MS. CLARK:

Okay.

# 12 MS. CLARK:

Let me ask you more simply. Assume the following hypothetical, sir: That someone is wearing a very thin pair of nylon socks and that they are very--they are wet with perspiration.

# 13 MR. NEUFELD:

Objection, there is no--assumes facts not in evidence.

# 14 THE COURT:

Overruled.

# 15 MS. CLARK:

That a bloodstain is applied to the outer surface around the ankle, that while the blood is still in a wet condition the socks are left flat on the floor.

# 16 MR. NEUFELD:

Objection, assumes facts not in evidence, speculation.

# 17 THE COURT:

Overruled. Overruled.

# 18 MS. CLARK:

The socks are left flat on the floor while that bloodstain is still wet, could that cause--could such a set of facts, sir, cause the little balls to appear on the surface 3 that you--such as you observed in this case?

# 19 PROF. MACDONELL:

Yes, under those conditions.

KEY QUOTE

# 20 MS. CLARK:

You indicated, sir, that the little balls that you saw on surface 3 would have to have been there before the February 16th examination by Dr. Henry Lee? Isn't that what you said?

# 21 PROF. MACDONELL:

Yes, they would have to be.

# 22 MS. CLARK:

But to the best of your knowledge there are no photographs that depict any of those little balls taken on February 16, 1995, during Dr. Henry lee's examination, correct?

# 23 PROF. MACDONELL:

That's correct.

# 24 MS. CLARK:

And Dr. Lee did--did instruct the--or direct the photographs that were taken on April 2nd, 1995, did he not?

# 25 PROF. MACDONELL:

Yes.

# 26 MS. CLARK:

You indicated that the performance of a pheno test could only have caused those little balls to appear on surface 3 if there was abundance of liquid. Do you recall that testimony, sir?

# 27 PROF. MACDONELL:

Yes.

# 28 MS. CLARK:

Nevertheless, the volume of the little balls that you saw is so--is so microscopic that they could not be seen with the naked eye; isn't that correct?

# 29 PROF. MACDONELL:

That is correct.

# 30 MS. CLARK:

And yet the drop of blood on the outer surface of surface 1 you estimated at 50 to 60 microliters; isn't that right?

# 31 PROF. MACDONELL:

That is correct.

# 32 MS. CLARK:

And easily observed volume of blood, would it not be?

# 33 PROF. MACDONELL:

Yes.

# 34 MS. CLARK:

Under high-intensity light on those dark socks anyway?

# 35 PROF. MACDONELL:

Certainly.

# 36 MS. CLARK:

Nevertheless, a drop of blood of that quantity, 50 to 60 microliters, would be easy for us to see with the naked eye; isn't that correct?

# 37 PROF. MACDONELL:

Not under this illumination, but if you had high-intensity illumination, an average person could see it without anything more than a magnifying glass.

# 38 MS. CLARK:

Okay. But on those black socks, sir, if someone under normal lighting conditions was not looking for blood, then that amount of blood, 50 to 60 microliters, can be easily missed, could it not?

# 39 MR. NEUFELD:

Objection. Beyond the scope of cross--of redirect, I'm sorry.

# 40 THE COURT:

Sustained.

# 41 MS. CLARK:

Okay. Now, the dot on the paper where we saw the sampling phase of the phenolphthalein testing on the socks could be water dripping, could it not, sir?

# 42 MR. NEUFELD:

Objection, calls for speculation.

# 43 THE COURT:

Sustained.

# 44 MS. CLARK:

Well, sir, you don't know--you don't know how that drop got to be there isn't that correct?

# 45 MR. NEUFELD:

Objection, your Honor. Speculation.

# 46 THE COURT:

Overruled. Overruled.

# 47 PROF. MACDONELL:

It didn't get there by dripping. At least if it did, the paper was at an angle, because it is an oval or an ellipse and not a round spot, which is what happens when a liquid strikes a flat surface.

KEY QUOTE

# 48 MS. CLARK:

Nevertheless, you do not know how that water came to be there; isn't that correct?

# 49 PROF. MACDONELL:

That's correct.

# 50 MS. CLARK:

You don't know if it is because they were dabbing off excess water or if water was just dripping from a very wet swab; isn't that right?

# 51 MR. NEUFELD:

Objection, speculation.

# 52 THE COURT:

Sustained.

# 53 MS. CLARK:

Now, you examined these socks for the first time ten months after their collection on April 2nd, 1995?

# 54 PROF. MACDONELL:

I examined them on that date, yes.

# 55 MS. CLARK:

Did you perform any test on the material of those socks to determine whether you could examine them ten months after they were perspired into and detect the perspiration on them?

# 56 PROF. MACDONELL:

No.

# 57 MS. CLARK:

Did you perform any experiments on those socks to determine whether perspiration would absorb all the way through for the purpose of being able to detect that perspiration later on?

# 58 PROF. MACDONELL:

Well--

# 59 MS. CLARK:

Yes or no, Mr. MacDonell?

# 60 PROF. MACDONELL:

I didn't do any tests, no.

# 61 MR. NEUFELD:

Your Honor--

# 62 MS. CLARK:

Now, sir, you are aware of Dr. Huizenga's testimony, are you not, that someone that cuts themselves, the blood can clot, unclot and reclot again?

# 63 PROF. MACDONELL:

I am not aware of that, no.

# 64 MS. CLARK:

Would that surprise you, sir?

# 65 PROF. MACDONELL:

It would surprise me greatly if blood unclotted. There might be additional blood added to an existing clot, but that would be fresh blood. I have never heard of blood unclotting as such.

# 66 MS. CLARK:

Let me be more specific. Someone has a cut on their finger which is bleeding and then clots, can movement of the finger, in your opinion, cause that blood to unclot and bleed fresh?

# 67 PROF. MACDONELL:

No. You can move--

# 68 MR. NEUFELD:

Objection, your Honor, to the form of the question.

# 69 THE COURT:

Sustained. Rephrase the question.

# 70 MS. CLARK:

Yes. Are you aware of Dr. Huizenga's testimony to the effect, sir, that blood--that a cut can bleed and then clot and through movement and activity unclot and bleed again?

# 71 THE COURT:

Counsel, you are using a term "Unclot."

# 72 MS. CLARK:

Unclot.

# 73 THE COURT:

You are talking perhaps the clot breaks, perhaps the clot is wiped away?

# 74 MS. CLARK:

Right.

# 75 THE COURT:

The wound starts to bleed again with fresh blood?

# 76 PROF. MACDONELL:

You can have fresh blood coming from a wound that has previously clotted if you remove the obstruction which would be the clot or scab.

# 77 MS. CLARK:

In which way someone would bleed, stop bleeding and bleed again, correct?

# 78 PROF. MACDONELL:

They could, yes. Under that mechanism they would.

# 79 MS. CLARK:

Now, sir, you testified concerning the fact that you saw the photographs of the Rockingham address and saw no blood on the light switch and no blood on the bedspread and no blood--

# 80 THE COURT:

Excuse me, counsel. I sustained the objection to that.

# 81 MS. CLARK:

No, not to those.

# 82 THE COURT:

Yes, I did.

# 83 MS. CLARK:

Okay.

# 84 THE COURT:

To part of that I sustained the objection.

# 85 MS. CLARK:

Which part was it? I can't remember.

# 86 (Discussion held off the record between the Deputy District Attorneys.)

# 87 THE COURT:

I allowed carpeting and the bedspread.

# 88 MS. CLARK:

Okay. But not the light switch? Was that it? All right.

# 89 MS. CLARK:

You testified that you saw no blood on the carpet and no blood on the bedspread; is that correct?

# 90 MR. NEUFELD:

Objection, misstates the testimony.

# 91 THE COURT:

Overruled.

# 92 PROF. MACDONELL:

I didn't observe those--the carpet until much later. The photographs of the carpet I observed and the bedspread, but I didn't observe the bedspread itself.

# 93 MS. CLARK:

So you observed photographs of those items, correct?

# 94 PROF. MACDONELL:

That is correct.

# 95 MS. CLARK:

You have testified, sir, previously, that the absence of blood does not necessarily mean that there is non-participation in the crime; isn't that correct?

# 96 PROF. MACDONELL:

Absence of blood on a person, yes.

KEY QUOTE

# 97 MS. CLARK:

Well, how would that blood, sir, in your opinion, have gotten to the bedspread or the carpet if not from the person of the murderer?

# 98 MR. NEUFELD:

Objection, argumentative.

# 99 THE COURT:

Sustained. Rephrase the question.

# 100 MS. CLARK:

Yes.

# 101 MS. CLARK:

Sir, if you were to see blood on the bedspread or on a carpet in the room of the murderer, you would expect that that would come from the clothing or the body of the murderer itself, would you not?

# 102 MR. NEUFELD:

Objection as to her characterization using the word "Murderer."

# 103 THE COURT:

Overruled.

# 104 PROF. MACDONELL:

Again I would expect to see transfers if you have blood on something and you touch something else, but I can't do more than speculate that if a person has blood on them and they get into a room, they may transfer it when it isn't there.

# 105 MS. CLARK:

Sir, the question I asked you was a very simple one. If you see--if a murderer commits a murder, gets blood on him, then goes back to his room, the mechanism of transfer, if you find blood in the room, would be himself, his clothing, his body, correct?

# 106 PROF. MACDONELL:

Yes.

# 107 MS. CLARK:

You have previously testified, sir, that the absence of blood on a perpetrator does not indicate non-participation in a violent act, correct?

# 108 PROF. MACDONELL:

That is correct.

# 109 MS. CLARK:

And when we discussed this before, you indicated as well that although attorneys may want to argue that the absence of blood on a--on their client indicates that he did not commit the bloody act, you have advised them that that is not the case, that that is a misconception, have you not?

# 110 MR. NEUFELD:

Objection, argumentative and irrelevant as to what he advised other lawyers.

# 111 THE COURT:

Overruled.

# 112 PROF. MACDONELL:

I have said that there are exceptions to every rule. It is possible to commit a crime and not get blood on you. Most often you will see clothing that has no blood on it and assume that the person did not participate, but we would rather explain seeing the blood and trying to establish the mechanism it got there and speculate why it did, not but that is the basis of that article.

KEY QUOTE

# 113 MS. CLARK:

Which is that you must interpret what you see and not what you do not see?

KEY QUOTE

# 114 PROF. MACDONELL:

Correct.

# 115 MS. CLARK:

And in that article, sir, do you not say--

# 116 MR. NEUFELD:

Your Honor, I'm going to object as beyond the scope.

# 117 THE COURT:

Sustained.

# 118 MS. CLARK:

Sir, isn't it true that people will wear, in your experience, protective clothing, such as gloves, to prevent getting blood on them?

# 119 MR. NEUFELD:

Objection, beyond the scope of the direct and--

# 120 THE COURT:

Sustained.

# 121 MR. NEUFELD:

Redirect examination.

# 122 THE COURT:

Sustained.

# 123 MS. CLARK:

Isn't that--

# 124 THE COURT:

Sustained.

# 125 (Discussion held off the record between the Deputy District Attorneys.)

# 126 MS. CLARK:

Nothing further--I have nothing further.

Temperature

tense

Key Quotes (5)

Prof. Herbert MacDonell

Yes, under those conditions.

MacDonell concedes that Clark's hypothetical — wet nylon socks laid flat while blood is still wet — could explain the microscopic balls on surface 3, undermining the planted-blood theory he was called to support.

Prof. Herbert MacDonell

Absence of blood on a person, yes.

MacDonell confirms his own published position that absence of blood does not indicate non-participation — a principle Clark then turns against the defense's argument that OJ had no blood on him.

Prof. Herbert MacDonell

I have said that there are exceptions to every rule. It is possible to commit a crime and not get blood on you.

MacDonell's own expert opinion undercuts the defense's central 'no blood on OJ' argument, elicited directly from the defense's own witness.

Marcia Clark

Which is that you must interpret what you see and not what you do not see?

Clark summarizes MacDonell's published principle in a way that directly rebuts the defense's use of absent blood evidence, and MacDonell agrees.

Prof. Herbert MacDonell

It didn't get there by dripping. At least if it did, the paper was at an angle, because it is an oval or an ellipse and not a round spot, which is what happens when a liquid strikes a flat surface.

MacDonell defends the integrity of the phenolphthalein test documentation, showing he is not simply agreeing with Clark's challenges.

Evidence (5)

Informal

OJ Simpson's black socks — surfaces 1 (outer ankle), 2, and 3 (inner surface) — and the microscopic blood balls observed on surface 3

discussed — Clark challenges the planting hypothesis by presenting an innocent transfer hypothetical

Informal

Photographs taken during Dr. Henry Lee's February 16, 1995 examination of the socks

discussed — Clark notes no photos from that date depict the microscopic balls MacDonell says must have already been present

Informal

Photographs taken April 2, 1995 (directed by Dr. Lee), the date MacDonell first examined the socks

discussed — used to question the timeline of when the balls were first documented

Informal

Phenolphthalein (pheno) test sampling paper showing an elliptical dot

discussed — Clark questions whether it could be water drip; MacDonell partially rejects that interpretation based on drop shape

Informal

Photographs of carpet and bedspread from Rockingham (OJ's bedroom)

discussed — Clark questions absence of blood transfer to room; Ito clarifies which portions were allowed in testimony

Notable Exchanges (4)

Marcia Clark•Prof. Herbert MacDonell

Clark walks MacDonell through a hypothetical of wet nylon socks laid flat while blood is still wet, and he concedes this could produce the microscopic balls on the inner surface — the same pattern the defense argued proved planting.

strategic

Marcia Clark•Prof. Herbert MacDonell

Clark elicits MacDonell's agreement that his own published principle — interpret what you see, not what you don't see — means the absence of blood on OJ cannot be used to argue non-participation.

revealing

Marcia Clark•Lance A. Ito

Clark attempts to ask about the Rockingham light switch but Ito interrupts, saying he sustained that objection earlier. Clark says she doesn't remember, and Ito clarifies on the record what was and was not allowed.

procedural

Lance A. Ito•Marcia Clark

When Clark uses the term 'unclot,' Ito intervenes to reframe the concept — asking whether she means the clot breaks or is wiped away and the wound bleeds again — effectively helping clarify the question for the record.

procedural

Credibility Attacks (2)

⚔ Prof. Herbert MacDonell

scope and foundation challenges

Clark highlights that MacDonell performed no experiments to verify that perspiration could be detected on socks ten months after collection, and that he had no photographs showing the microscopic balls existed before April 2, 1995 — undermining the foundation of his planted-blood testimony.

⚔ Defense blood-planting theory

using defense witness's own published principle

Clark uses MacDonell's own article and testimony to establish that the absence of blood on OJ Simpson cannot be used to argue non-participation in the murders — turning the defense's expert against a key defense argument.

Witness Demeanor

(Discussion held off the record between the Deputy District Attorneys.)

Objections

15 objections (7 sustained, 8 overruled)

Proceeding 7114 • 126 utterances • Defense witness

Criminal Trial

Department 103