Sidebar: clotting and sock drying

📄 Sidebar: clotting and sock drying — Tuesday, August 1, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\1\SIDEBAR-CLOTTING-AND-SOCK-DRYI.DOC

TRIAL

▲ Day 126 of 167

◀ Redirect examination of Prof. Herbert MacDonell (part 2) Redirect examination of Prof. Herbert MacDonell (part 3) ▶

Date: Tuesday, August 1, 1995 • Utterances: 54

A sidebar erupted after Professor Herbert MacDonell again referenced the sock-drying experiment — testimony the court had already ruled inadmissible. Neufeld claimed he was trying to elicit a separate, permissible theory about blood stain timing (that stain 3 required no foot in the sock), but Clark objected that this 'second theory' was never disclosed in discovery and had only been communicated to Neufeld by the witness that morning. Ito struck the answer, ruled the new theory was actually consistent with prior testimony, and returned the jury.

# 1 MR. NEUFELD:

Professor MacDonell--

# 2 THE COURT:

Excuse me. Over at side bar with the court reporter. Ladies and gentlemen would you step into the jury room. In fact, stay there.

# 3 (The jury was excused and the following proceedings were held in open court, out of the presence of the jury:)

# 4 THE COURT:

All right. Thank you, counsel. Be seated. What was that about?

# 5 MR. NEUFELD:

I'm sorry. Your Honor, when Professor MacDonell has a second reason, aside from drying, as to when you look not just at the surface stain on surface 1, but the surface stains on 2 and 3, why it is inconsistent with Bundy, and the answer would simply be that the stain that you see on surface 3 had to have occurred at a time when there was no ankle in the sock and that is the answer that I was looking for and that is the answer that he told me this morning. I knew full well what the Court's ruling was with respect to the other and I was very careful about it, and as you may have noticed, I was basically done and I realized there was one other way that could I still deal with the same hypothetical without even going into drying, but just to have him say that there would be no ankle there and that is the answer that I was looking for.

# 6 THE COURT:

That is not the answer we got.

# 7 MR. NEUFELD:

That is understood, your Honor, and I'm sorry about that, but that was not my intention at that time. I heard the Court's ruling very clearly and I fully expected this witness to give the other answer. You can inquire of the witness, your Honor. I have no problem with it. There were two separate grounds for the opinion and I at that time expected him to simply articulate the second ground based on the Court's ruling.

# 8 THE COURT:

All right. I have stricken the answer. I take it this is going to be your last question?

# 9 MR. NEUFELD:

Yes.

# 10 MS. CLARK:

May I be heard, your Honor?

# 11 THE COURT:

Yes.

# 12 MR. NEUFELD:

Also, your Honor, before we have the jury, can I instruct the witness to so limit his answers so we don't have any additional problem?

# 13 THE COURT:

He has been present for our discussion. I assume he has understood what we just discussed.

# 14 MR. NEUFELD:

Thank you, your Honor.

# 15 THE COURT:

Miss Clark.

# 16 MS. CLARK:

But that is the very problem. I'm sure that Mr. Neufeld informed this witness that he was not to go into the sock drying experiment. This is the fourth time. Counsel has elicited that response from the witness. I'm not saying counsel is doing it intentionally, but it is happening none the less. The witness should be charged. This is a professional witness. This is not some kid off the street who is testifying for the first time. This is 150 times worse. This man has testified. He knows better. And yet four times I've had to object to prevent him from testifying to what he knows and counsel knows is inadmissible and now it has happened again. And I don't know, you know--I don't know when some admonition should be given to the jury. If not now, how many times does this man get to bring into the record or attempt to bring into the record material that the Court has determined inappropriate and inadmissible? How many times before the jury is told that this is inadmissible?

# 17 THE COURT:

Well, I think the jury has divined enough that I've stopped the proceedings, asked them to step out and stricken the answer. I think they got the feeling that it has been inappropriate and since it has happened four times with this witness already, I think they have gotten the message. All right. Let's proceed.

# 18 MS. CLARK:

The other problem is discovery we need.

# 19 PROF. MACDONELL:

May I make a comment?

KEY QUOTE

# 20 THE COURT:

No, you may not.

# 21 MS. CLARK:

We were never informed of the second reason, your Honor. This is a new one to me. And as a matter of fact, the witness conceded on cross-examination that he could not say that surface 1 and surface 3 stains were made at the same time, and now for the first time I'm hearing there is a new theory that I was not informed of.

# 22 THE COURT:

Are you speaking of the clotting business?

# 23 MR. NEUFELD:

No.

# 24 MS. CLARK:

I am.

# 25 MR. NEUFELD:

It is not a new theory, your Honor.

# 26 THE COURT:

Wait, counsel. I'm sorry--

# 27 MR. NEUFELD:

I'm sorry.

# 28 THE COURT:

--I was speaking with Miss Clark.

# 29 MR. NEUFELD:

Sorry.

# 30 MS. CLARK:

I have not heard this new theory that counsel admitted just now which was told to him by this witness this morning for the first time, there was an additional reason other than the sock drying experiment. That is the point of discovery, isn't it?

KEY QUOTE

# 31 THE COURT:

It is.

# 32 MS. CLARK:

That is why the People asked for the 402 on this witness to begin with. He is testifying to things that no one has heard before, even counsel has heard before this morning. How can we effectively cross-examine someone like this?

# 33 THE COURT:

All right. As to which point, Miss Clark?

# 34 MS. CLARK:

Well, as to the new theory now about the timing of when stain 3 had to have occurred. This is something new. Initially--

# 35 THE COURT:

A new theory that it occurred when?

# 36 MS. CLARK:

It appears that the witness is now going to attempt to testify that he can say definitively that stains 1 and stains 3 occurred at the same time because stain 2 came from--stain 3 came from stain 2. That was something that he was not willing to go that far on cross. Apparently he has something new to which counsel just said was explained to him this morning by this witness.

# 37 THE COURT:

No, but he has already opined that in his opinion stain 3 came from stain 2 and that obviously because of the way men wear socks, or women, for that matter, that obviously if there was a foot in there it wouldn't happen this way. That is what I think the answer is going to be.

# 38 MS. CLARK:

May I have one moment, your Honor? My worthy colleague has--

# 39 (Brief pause.)

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

# 41 MS. CLARK:

If that were the case, your Honor, then that would be consistent with what he had said before.

# 42 THE COURT:

Since that is a concluding question, I assume it is a wrap-up question.

# 43 MS. CLARK:

But this is a new theory, if what I understand is correct.

# 44 THE COURT:

No, no, no, it is not a new theory.

# 45 MS. CLARK:

Can we hear from counsel then?

# 46 THE COURT:

It is not a new theory.

# 47 MS. CLARK:

That is what counsel said.

# 48 THE COURT:

3 came from 2 and the only way that can happen is if there isn't a foot in it. Even I understand that.

KEY QUOTE

# 49 MS. CLARK:

Right. And I understood that, too, your Honor, but here is what counsel said. He said there were two separate grounds for the opinion, one, the sock drying experiment and one--

# 50 THE COURT:

This is a different theory.

# 51 MS. CLARK:

Yes.

# 52 THE COURT:

All right. Let's have the jurors, please.

# 53 MR. COCHRAN:

Thank you, your Honor.

# 54 (Brief pause.)

Temperature

tense

Key Quotes (5)

Marcia Clark

This is the fourth time. Counsel has elicited that response from the witness. I'm not saying counsel is doing it intentionally, but it is happening none the less. The witness should be charged. This is a professional witness. This is not some kid off the street who is testifying for the first time. This is 150 times worse.

Clark frames MacDonell's repeated infractions as inexcusable given his experience, escalating the complaint beyond simple error toward deliberate misconduct.

Marcia Clark

I have not heard this new theory that counsel admitted just now which was told to him by this witness this morning for the first time. That is the point of discovery, isn't it?

Clark identifies a concrete discovery violation: the second theory was disclosed to Neufeld the morning of testimony, not in advance.

Peter Neufeld

I heard the Court's ruling very clearly and I fully expected this witness to give the other answer. You can inquire of the witness, your Honor. I have no problem with it.

Neufeld attempts to shift accountability to the witness rather than himself, offering to let the judge question MacDonell directly.

Lance A. Ito

3 came from 2 and the only way that can happen is if there isn't a foot in it. Even I understand that.

Ito's dry aside undercuts the drama by defusing the 'new theory' dispute — ruling it not new at all.

Prof. Herbert MacDonell

May I make a comment?

MacDonell tries to interject in his own defense mid-sidebar — and is flatly shut down by Ito ('No, you may not.').

Evidence (2)

Informal

The bloody sock from Bundy — specifically the blood stains on surfaces 1, 2, and 3, and the theory that stain 3 transferred from stain 2 only when no foot/ankle was inside the sock

discussed, disputed re: admissibility and discovery

Informal

The sock drying experiment — MacDonell's methodology previously ruled inadmissible by Ito

stricken (again); referenced as the basis of the fourth inadmissible answer

Notable Exchanges (3)

Marcia Clark•Lance A. Ito

Clark pushes for a jury admonition after four instances of MacDonell eliciting inadmissible testimony; Ito declines, reasoning the jury has already gotten the message from repeated stops and strikes.

strategic

Marcia Clark•Peter Neufeld•Lance A. Ito

Clark argues the 'no-foot-in-the-sock' timing theory is new and undisclosed; Neufeld interrupts to dispute this; Ito cuts Neufeld off mid-sentence ('I was speaking with Miss Clark') then ultimately rules the theory is not new.

heated

Prof. Herbert MacDonell•Lance A. Ito

MacDonell attempts to speak in his own defense during the sidebar; Ito refuses without elaboration.

revealing

Light Moments (1)

Lance A. Ito

Ito explains the stain-transfer logic — 'Even I understand that' — puncturing the escalating tension with dry self-deprecation.

Credibility Attacks (1)

⚔ Prof. Herbert MacDonell

pattern of conduct / professional accountability

Clark argues that a witness who has testified 'over 150 times' has no excuse for repeatedly injecting inadmissible material, implying the violations are knowing rather than accidental.

Objections

None recorded

Proceeding 7112 • 54 utterances

Criminal Trial

Department 103