📄 Cross-examination of Dr. Michael Baden (afternoon, part 2) — Thursday, August 10, 1995
Address:
C:\DEPT103\CRIMINAL\1995\AUG\10\CROSS-EXAMINATION-OF-DR-MICHAE.DOC
TRIAL
▲ Day 133 of 167

Cross-examination of Dr. Michael Baden (afternoon, part 2)

Witness: Dr. Michael Baden
Examiner: Brian Kelberg
Called by: Defense • Date: Thursday, August 10, 1995 • Utterances: 419
Prosecutor Brian Kelberg cross-examines defense forensic pathologist Dr. Michael Baden, systematically attacking his credibility by highlighting inconsistencies between his criticism of 'possibilities' language and his own testimony, his failure to prepare a written report, and discrepancies between his documentation of Simpson's left hand injuries on June 17th and the more extensive findings Dr. Huizenga recorded two days earlier. The examination ends just as Kelberg is about to confront Baden with an NBC Dateline transcript from shortly after the murders.
1 MR. KELBERG:

Thank you, your Honor. And good afternoon again, ladies and gentlemen.

THE JURY: Good afternoon.

2 MR. KELBERG:

And to you, doctor. Doctor, I don't believe you gave on direct examination whether or not you are presently employed full or part-time with any New York State police agency. You did not make any mention of that, did you, sir?

3 DR. BADEN:

I don't think I was asked that.

4 MR. KELBERG:

Okay. Are you in fact a part-time employee of the New York State police?

5 DR. BADEN:

Yes.

6 MR. KELBERG:

And, in fact, what is that part-time employment, sir?

7 DR. BADEN:

I'm co-director of the forensic sciences unit of the New York State police. That's a half-time position.

8 MR. KELBERG:

In fact, that obligates you to give them a minimum of 20 hours a week, correct?

9 DR. BADEN:

A minimum of 20 hours, but I'm on call seven days a week, 24 hours a day or I have to provide coverage.

10 MR. KELBERG:

How many forensic pathologists are associated with that New York State police unit of which you say you are the director?

11 DR. BADEN:

I'm the co-director. Dr. Lowell Levine, the forensic dentist, is the other co-director, and we split one position. There are about eight forensic pathologists who are on our--associated with our unit.

12 MR. KELBERG:

Are there any which are--who are full-time employees?

13 DR. BADEN:

No. No.

14 MR. KELBERG:

Is one of the people associated with that Dr. Wolf?

15 DR. BADEN:

No.

16 MR. KELBERG:

Is Dr. Wolf--Dr. Wolf is not associated with the unit of which you are a co-director?

17 DR. BADEN:

That's correct.

18 MR. KELBERG:

Is Dr. Wolf employed at all by the Albany State police?

19 DR. BADEN:

Dr. Wolf is--has been director of anatomic pathology at Albany medical center and is a forensic pathologist to Albany county and to about 20 other counties in upstate New York, about 63 counties in New York state, and she covers a great number of them.

20 MR. KELBERG:

How long has Dr. Wolf been a board-certified forensic pathologist?

21 MR. SHAPIRO:

I'm going to object, your Honor. It's beyond the scope.

22 THE COURT:

Sustained.

23 MR. KELBERG:

Your Honor, may I be heard on this?

24 THE COURT:

Sustained.

25 MR. KELBERG:

Dr. Baden, did you bring Dr. Wolf into this case?

26 MR. SHAPIRO:

Objection.

27 THE COURT:

Sustained.

28 MR. KELBERG:

Dr. Baden, did you bring Dr. Wolf into the Boggs, Hanson, Hawkins case for the trials for the last two defendants?

29 MR. SHAPIRO:

Objection. Irrelevancy.

30 THE COURT:

Sustained.

31 MR. KELBERG:

Dr. Baden, is Dr. Wolf going to be the co-editor of this book that you say you're in the process of preparing?

32 DR. BADEN:

She and I--she and I are working on a textbook of forensic medicine, yes.

33 MR. KELBERG:

And in fact, who, if anyone, is writing the chapter on sharp force injuries?

34 DR. BADEN:

I will.

35 MR. KELBERG:

And has that been done yet, sir?

36 DR. BADEN:

No. Not completed.

37 MR. KELBERG:

Are you going to use this case as an example for that chapter?

38 DR. BADEN:

I don't know, Dr.--Mr. Kelberg. I doubt it. I wouldn't use any case that can be identified.

39 MR. KELBERG:

Doctor, is it usually the case that with recognized forensic pathology text or any other field of medical text, that the editors are usually physicians who have vast experience in the area the textbook is covering?

40 DR. BADEN:

Not necessarily. There are some--many text that are written by people who have little experience. That's why we don't have too many good text about.

41 MR. KELBERG:

And therefore, let me ask you again, how long has Dr. Wolf been board certified in forensic pathology?

42 MR. SHAPIRO:

Objection.

43 THE COURT:

Sustained.

44 MR. KELBERG:

Doctor, you said you've done personally over 20,000 autopsies; is that correct?

45 DR. BADEN:

Yes.

46 MR. KELBERG:

And, in fact, the overwhelming bulk of those autopsies were done when you were still with the New York medical examiner's office; isn't that correct?

47 DR. BADEN:

That's correct, yes.

48 MR. KELBERG:

And that was a situation that you terminated 10 years ago; isn't that correct?

49 DR. BADEN:

I left the New York City medical examiner's office in 1985, yes.

50 MR. KELBERG:

And, sir, of those 20,000 autopsies that you--or over 20,000 that you've personally performed, how many of them were multiple murder cases arising out of a single incident?

51 MR. SHAPIRO:

Objection. I don't understand the form of the question.

52 THE COURT:

Overruled.

53 DR. BADEN:

I'd say a few hundred. I mean, we have up to--we had single incident with 15 persons killed and down to two. But a few hundred I would imagine.

54 MR. KELBERG:

How many of those involved sharp force injuries as the cause of death?

55 DR. BADEN:

I don't know. I would imagine a good percentage of them, half maybe.

56 MR. KELBERG:

Doctor--

57 DR. BADEN:

Or probably gunshot wounds would be a little more than half.

58 MR. KELBERG:

Gunshot wounds would be more--

59 DR. BADEN:

Probably more than half.

60 THE COURT:

Gentlemen.

61 MR. KELBERG:

Gunshot wounds would be more than half of those multiple murder cases arising out of a single incident?

62 DR. BADEN:

I would guess, yes. That would be my opinion as I sit here. I have never accumulated the cases in that manner.

63 MR. KELBERG:

Now, doctor, if you do roughly a thousand autopsies a year--and that would be what would be required from 1965 to 1985 to get 20,000, right?

64 DR. BADEN:

Umm, it would be starting in 1960--1955 actually, but most of them would have been done between `65--from about `63.

65 MR. KELBERG:

Starting in 1955, doctor?

66 DR. BADEN:

Yes. As a medical--I started as a medical student to do autopsies as a volunteer. However, I didn't do that many until `62, `63 when I worked at an official job on weekends and holidays and vacation time.

67 MR. KELBERG:

You wouldn't be allowed to do criminal homicide autopsies when you were starting medical school, would you?

68 DR. BADEN:

Not in medical school, no. Most of these autopsies would be in noncriminal cases.

69 MR. KELBERG:

Now, doctor, roughly doing a thousand autopsies a year for 20 years would be accurate?

70 DR. BADEN:

A little less than that, right. That is approximately. Approximately.

71 MR. KELBERG:

And would it be accurate to say that you took perhaps usually two weeks of vacation a year?

72 DR. BADEN:

In my early days, I rarely took vacation, but maybe two weeks, yeah.

73 MR. KELBERG:

So if you worked 50 weeks a year doing roughly a thousand autopsies a year, you are doing roughly 20 autopsies a week?

74 DR. BADEN:

That's correct.

75 MR. KELBERG:

Personally doing?

76 DR. BADEN:

That's correct.

77 MR. KELBERG:

And you said you supervised over 50,000 autopsies during the same period; isn't that correct?

78 DR. BADEN:

Umm, I got to supervise more as I rose up--I became deputy chief, but the supervision came a little later.

79 MR. KELBERG:

All right. If we just took for average purposes that 50,000 over 20 years, would be roughly supervising 2500 autopsies a year?

80 DR. BADEN:

Well, yeah. That easily, yes.

81 MR. KELBERG:

And again, 50 weeks. So you're looking at another 50 autopsies that you're supervising, correct?

82 DR. BADEN:

That's correct. Not that I'm doing. That I'm supervising.

83 MR. KELBERG:

You're doing 20 and supervising 50?

84 DR. BADEN:

Yeah.

85 MR. KELBERG:

And that means you're doing four autopsies a day roughly working a five-day week?

86 DR. BADEN:

It worked out about two or three during the week and about five or 10 on weekend days. It varied.

87 MR. KELBERG:

And, doctor, you have to prepare reports for each autopsy you do?

88 DR. BADEN:

Yes.

89 MR. KELBERG:

And you have to testify in court sometimes?

90 DR. BADEN:

Yes.

91 MR. KELBERG:

And sometimes you have to have your deposition taken if it's a civil case?

92 DR. BADEN:

Rarely we--rarely were there depositions. In New York state, it wasn't at that time a deposition type case. There weren't too many civil litigations that we were involved in.

93 MR. KELBERG:

Doctor, of those 20 a week, how many of them were criminal homicide autopsies?

94 DR. BADEN:

Umm, of 8,000 cases, about 1800 autopsies. Something like 20 percent, 15 percent.

95 MR. KELBERG:

And how long would a criminal homicide autopsy take vis-à-vis the kinds that were not arising out of criminal homicide situations?

96 DR. BADEN:

It varies. It varied.

97 MR. KELBERG:

Some of them take less than a half an hour?

98 DR. BADEN:

Not too many--not the homicide cases.

99 MR. KELBERG:

No. Other than the criminal homicide. I'm talking about the noncriminal homicide.

100 DR. BADEN:

An hour, two hours maybe.

101 MR. KELBERG:

And some of these, did they not even involve dissection of the body at all?

102 DR. BADEN:

The autopsies involved dissection of the bodies. There were many other cases that I would issue death certificates without doing an autopsy. Those are what were called sign-out cases where an autopsy wasn't needed. So we might have in the city of New York at that time something like 30,000 deaths reported to the medical examiner's office each year out of 60-, 70,000 deaths, and of those, about 8,000 would be autopsied. The rest would not be autopsied.

103 MR. KELBERG:

Doctor, is there an organization of forensic pathologists nationwide that issues recommended guidelines as to the number of autopsies which should be done by a particular doctor on a particular day?

104 DR. BADEN:

There is--there are guidelines set by national organization, yes.

105 MR. KELBERG:

And isn't the guideline for the number of autopsies to be done no more than two a day?

106 DR. BADEN:

I believe now the guideline might be two a day and no more than 250 a year per doctor, but that's of recent vintage. That's in the past 10 or 15 years. In 1960's especially, we just worked morning to night to get the work done, and there were very few doctors in the medical examiner's office at that time.

107 MR. KELBERG:

Doctor, your work with the New York state police pays you approximately 39- to $40,000 a year?

108 DR. BADEN:

You're very good. Yes.

109 MR. KELBERG:

Well, you've testified about this in the past, haven't you, sir?

110 DR. BADEN:

If I've been asked that question, I've given that answer.

111 MR. KELBERG:

And that's an accurate answer, isn't it?

112 DR. BADEN:

Yes.

113 MR. KELBERG:

And, sir, your private practice--let's set aside the Simpson case. Are you still taking on other cases besides the Simpson case since you became involved in the Simpson case?

114 DR. BADEN:

Not very much since my involvement with the Simpson matter, this matter. But in general, I do other cases and I will once this is finished.

115 MR. KELBERG:

And in fact, is it true, sir, that three to four times of your annual income is made from privately retained cases rather than the 39- or $40,000 you make from New York?

116 DR. BADEN:

That's correct.

117 MR. KELBERG:

And in fact, you spend more than half of your time working on private retained cases rather than for the New York state police cases; isn't that correct?

118 DR. BADEN:

I would think that's fair. That is counting the hours per week.

119 MR. KELBERG:

Now, doctor, how many cases have you done where you've been privately retained--and by the way, privately retained insurance companies have retained your services?

120 DR. BADEN:

Yes.

121 MR. KELBERG:

And has that ever involved situations where the insurance company believes the decedent committed suicide and doesn't want to pay on the life insurance policy because there's a suicide exclusion?

122 DR. BADEN:

It's not quite put that way. If the initial review by the insurance policy by the doctor on staff is that the cause of death is at issue or the question of suicide, which might exclude payment, then they would call myself or another forensic pathologist and ask us to review the case and ask us our opinion. If my opinion was that the person committed suicide, they act one way. If my opinion was the person didn't commit suicide, they might act in another way.

123 MR. KELBERG:

Now, you've also been retained by attorneys representing plaintiffs in civil actions?

124 DR. BADEN:

Yes, sir.

125 MR. KELBERG:

And as you've said, by Defense attorneys in criminal matters?

126 DR. BADEN:

Yes, sir.

127 MR. KELBERG:

And by some Prosecutors as well?

128 DR. BADEN:

Yes.

129 MR. KELBERG:

And on these privately retained cases, you are paid; is that correct?

130 DR. BADEN:

That's the intent. It doesn't always work that way, but I submit a bill, yes.

131 MR. KELBERG:

Now, doctor, of those times that you've been retained privately, how many involved cases where you did not personally perform the autopsy?

132 DR. BADEN:

Oh, in criminal or civil matters?

133 MR. KELBERG:

Altogether.

134 DR. BADEN:

Well, commonly in insurance matters, I'm asked to review other people's work and the results and in I would say majority of my private practice, I review cases other people have done, but I don't do an autopsy.

135 MR. KELBERG:

My question though, sir, is, approximately how many cases have you been retained on in your career for which you're paid for which you did not personally do the autopsy?

136 DR. BADEN:

Lots. I mean, we're going 30--back 30, 35 years. Many, many cases. Probably the majority of them. I'm just saying the majority of cases I'm retained on, I don't do the autopsy.

137 MR. KELBERG:

And in those situations, do you review any autopsy report that's been issued by the pathologist who performed the autopsy?

138 DR. BADEN:

Yes.

139 MR. KELBERG:

Do you review photographs that may be in existence, whether police photographs or Coroner office photographs?

140 DR. BADEN:

Yes.

141 MR. KELBERG:

Do you review tissue samples if they are available?

142 DR. BADEN:

Yes.

143 MR. KELBERG:

And, doctor, when you do this, do you ever tell the party retaining you that you can't accept this work because since you didn't do the autopsy, it would be pure speculation for you to review these materials and render opinions?

144 DR. BADEN:

No.

145 MR. KELBERG:

And in fact, have you ever turned money back after you've done a review to tell the party that retains you, "I didn't do the autopsy. Whatever I have in the way of an opinion from these materials would be pure speculation. Here's your money back"? Have you ever done anything like that?

146 DR. BADEN:

That's not my opinion, no. I--if I agree to review a case, I'll review the case, and I'll do the best I can with the information available.

147 MR. KELBERG:

And in fact, you do render opinions in these retained cases based upon review of whatever was available even though you did not do the autopsy?

148 DR. BADEN:

Certainly.

149 MR. KELBERG:

Isn't that correct?

150 DR. BADEN:

Absolutely.

151 MR. KELBERG:

And in fact, in the Boggs case that Mr. MacKenzie retained you on, you didn't do the autopsy, did you?

152 DR. BADEN:

No, I did not.

153 MR. KELBERG:

And, in fact, you did review photographs, right?

154 DR. BADEN:

That's true, yes.

155 MR. KELBERG:

And you did review an autopsy report by Dr. Sy, S-Y, Evancia Sy?

156 DR. BADEN:

Yes.

157 MR. KELBERG:

And some of the photographs were taken of the body at the office of Dr. Boggs, right?

158 DR. BADEN:

Yes. That's correct.

159 MR. KELBERG:

Now, doctor, you said this morning that you are critical of any forensic pathologist who would get on the witness stand and testify to possibilities. Isn't that what you said this morning?

160 DR. BADEN:

I think what I said this morning was in the context of Mr. Shapiro's question where all the opinions or much of the opinions of--on the direct, your witness, Dr. Lakshmanan, were couched in possibilities.

161 MR. KELBERG:

Sir, in fact, the questions were couched as follows: "Doctor, is a set of circumstances consistent with certain findings?" Isn't that how the questions were couched, doctor?

162 DR. BADEN:

Many of them were, but that's possible. "Consistent with" is difficult to interpret because it could be consistent with 1 percent or it could be consistent with 95 percent, and that's--that's a delicate area to explain to the trier of the facts as to what my opinion is. If my opinion is it's consistent with 1 percent that so and so happened, the jury should not give it as much weight as if it were consistent with 95 percent.

163 MR. KELBERG:

So, doctor, is it your use of the term "Possibility" to relate to doctors who talk in terms of "Consistent with" or "Inconsistent with" when questions are posed?

164 DR. BADEN:

What I said is that the witness, me in the blue chair, Dr. Lakshmanan in the blue chair here, can only answer the questions that the lawyers put to us, and I think we try to answer the questions the best we can. But if all we say is it's possible that it happened by a bushy-haired stranger whose right-handed from behind, yes, but it's also equally consistent with a bald-headed midget from the front who is left-handed. It's all--it depends on what kind of information I want to give across as an expert, but I don't have control over your questions or Mr. Shapiro's questions.

165 MR. KELBERG:

Well, doctor, if you feel incapable of rendering an opinion because you do not hold an opinion to a reasonable medical certainty, then you can say that as a response to any hypothetical that's posed to you by any lawyer; can you not?

166 MR. SHAPIRO:

Objection. Argumentative.

167 THE COURT:

Overruled.

168 DR. BADEN:

In most states, I could do that.

169 MR. KELBERG:

I move to strike as not--

170 DR. BADEN:

But not here.

171 THE COURT:

Overruled. The answer stands.

172 MR. KELBERG:

You cannot do that here?

173 DR. BADEN:

No, no. I think how--my impression is from the testimony that questions are permissible here that wouldn't be permissible in other states.

174 MR. KELBERG:

Well, doctor, my question though to you is, do you feel that you as the witness, as the expert in response to a hypothetical question can say, "I can't answer that. I don't have enough information. It would be speculation. I don't talk in terms of possibilities. I talk only in terms of reasonable medical certainty"? Can you do that, sir?

175 DR. BADEN:

Surely I can. But you--that's a compound question. Certainly if I don't have enough information, I can't answer. I'll say I don't have enough information, that's beyond my expertise. But I think that I--I'm at the--you know, at the--I have to answer the questions that are put to me and as best I can.

176 MR. KELBERG:

Well, and "As best you can" could involve answering, "I can't answer that question because I can't answer to a reasonable medical certainty." That is an answer you could give, isn't it?

177 DR. BADEN:

I could give that, yes.

178 MR. KELBERG:

Now, sir, didn't you in the course of your direct examination at least 10 or 12 times offer answers that included the word "Possibility" when asked hypothetical questions?

179 DR. BADEN:

I don't think so. It's poss--that's possible, but I don't think so. If I did, I try to couch it in the sense that I'm giving it with a different degree of certainty than if I answered to a reasonable degree of medical certainty so that the jury can distinguish what I'm trying to say.

180 MR. KELBERG:

Well, for example, the shoe, remember the shoe photo that was shown?

181 DR. BADEN:

Yes.

182 MR. KELBERG:

The cut in the front of the shoe? You said it was not proof of it, that Mr. Goldman had kicked the knife, right?

183 DR. BADEN:

That's right.

184 MR. KELBERG:

Not proof of it?

185 DR. BADEN:

But it's my opinion--

186 MR. KELBERG:

Excuse me. You said cut on the top was indicative of kicking.

187 DR. BADEN:

Yeah.

188 MR. KELBERG:

Isn't that correct, sir?

189 MR. SHAPIRO:

Your Honor--

190 THE COURT:

Wait, wait, wait. He didn't finish answering--asking the question. Let him finish. Let him finish answering the question as well.

191 MR. KELBERG:

Thank you, your Honor. I will.

192 THE COURT:

All right. We will be here through tomorrow if we keep up like this. Let's move along, all right?

KEY QUOTE
193 MR. KELBERG:

I'm trying to.

194 THE COURT:

Let's get past the semantics.

195 DR. BADEN:

By "Indicative," I meant more likely than not, more than 50 percent.

196 MR. KELBERG:

What's your definition of "To a reasonable medical certainty," sir?

197 DR. BADEN:

More than 95 percent.

198 MR. KELBERG:

So according to your criticism that you gave this morning, you should not be offering an opinion that you cannot say to 95 percent certainty. Isn't that your view?

199 DR. BADEN:

Depends on the question. It depends what the question is and what the information that's being elicited.

200 MR. KELBERG:

Well, sir, did you ever qualify any of the answers you gave by saying this is not to a reasonable medical certainty, this is only something I feel 50 percent plus one, a sense of confidence in?

201 DR. BADEN:

I don't think I used those words.

202 MR. KELBERG:

Well, did you qualify any of them?

203 DR. BADEN:

At times, I said it got monotonous to a reasonable degree of medical certainty when I gave answers.

204 MR. KELBERG:

Sir, have you ever heard the term "Beyond a reasonable degree of medical certainty"?

205 DR. BADEN:

Yes.

206 MR. KELBERG:

That's a term you've used, isn't it?

207 DR. BADEN:

Certainly.

208 MR. KELBERG:

Can you tell me the source for your knowledge of that term?

209 DR. BADEN:

It's a term that's used in New York state courts. It's one of the--I'd have to defer to Mr. Scheck on that. It's a lawyer term that we're asked not uncommonly in New York.

210 MR. KELBERG:

Well, as a forensic pathologist, doctor, aren't you trained in the relationships between the law and pathology?

211 DR. BADEN:

Oh, yes. But we're not trained in the law as such. I'm not a lawyer. I don't deem to answer legal questions. I don't even know the difference between a hearing and a trial as you pointed out. But what I'd say is, I--we know knowledge that's applicable to the law.

212 MR. KELBERG:

Doctor, did you write in your report to Mr. MacKenzie on the death of Ellis Green, among other things? "It is further my opinion beyond a reasonable degree of medical certainty that the medical autopsy in toxicology findings presently available are entirely consistent with the cause of death being asphyxia by suffocation," and then: "Mr. Green's alcohol impaired condition at the time of death made him vulnerable and susceptible to die from such a cause." Did you write that in your report?

213 DR. BADEN:

I will take you at your word. Yes, I--it sounds right.

214 MR. KELBERG:

Sir, what does "Beyond a reasonable degree of medical certainty" mean to you?

215 DR. BADEN:

95--beyond 95 percent certainty. The same as to a reasonable degree of medical certainty. I'm not in a syntax mode there.

216 MR. KELBERG:

In your mind, "To a reasonable degree of medical certainty" and "Beyond a medical degree of medical certainty" are synonymous terms?

217 DR. BADEN:

They're used synonymously in New York courts.

218 MR. KELBERG:

Doctor, did you prepare a report for this case?

219 DR. BADEN:

No.

220 MR. KELBERG:

In the cases where you were retained by our office, the Belushi case and the Boggs case, you either prepared a report or signed an affidavit spelling out your findings; isn't that correct?

221 DR. BADEN:

I did prepare a report as you indicate in the Boggs case and I would be guided by whatever you said about Mr. Belushi.

222 MR. KELBERG:

May I approach, your Honor?

223 DR. BADEN:

Thank you.

224 THE COURT:

Have you shown that to Mr. Shapiro?

225 MR. SHAPIRO:

No, he has not, your Honor.

226 THE COURT:

All right.

227 (Brief pause.)
228 MR. KELBERG:

Doctor, were you asked to sign an affidavit in order to extradite Kathy Evelyn Smith from Canada?

229 DR. BADEN:

Yes. Yes, I remember that now.

230 MR. KELBERG:

And you read it thoroughly, in fact, made some notations on it, didn't you, before signing it?

231 DR. BADEN:

It's 12 years ago. I assume so.

232 MR. KELBERG:

Now, doctor, why haven't you prepared a report in this case of your findings?

233 DR. BADEN:

Well, I wasn't asked to prepare a report. I was in constant conversations with Mr. Shapiro, but I was not asked to prepare a report. It's not usually my custom to prepare a report without being asked.

234 MR. KELBERG:

And, doctor, is that because you don't want to give the opponent any advance notice of what your views may be to prepare for cross-examination?

235 DR. BADEN:

No. That's not so. In fact, if you called me, Mr. Kelberg, I would have been glad to talk to you.

KEY QUOTE
236 MR. KELBERG:

Doctor--

237 DR. BADEN:

As we once did before.

238 MR. KELBERG:

We did, doctor, and that was arranged by the Defense attorney, wasn't it?

239 DR. BADEN:

I believe so, yes.

240 MR. KELBERG:

And then you had to cut short that conversation, didn't you, because you were tied up at a convention?

241 DR. BADEN:

I don't remember. I don't remember.

242 MR. KELBERG:

Well, in fact, I was not permitted to finish questioning you, that we had to put it off for another time and I was not permitted to follow up any questioning beyond the 20 minutes that I talked with you. Isn't that what happened in that case, sir?

243 DR. BADEN:

I don't recall that at all, but I'm sure if you say so, I would think it's correct.

244 MR. KELBERG:

Now, doctor, you examined Mr. Simpson's hands on June 17th; is that correct?

245 DR. BADEN:

Yes, I did.

246 MR. KELBERG:

And, sir, did you document carefully each and every finding that you made in that examination?

247 DR. BADEN:

I made notes, yes. I made notes.

248 MR. KELBERG:

And you've told us I think on direct how important it is for a medical examiner to document carefully all the findings, correct?

249 DR. BADEN:

Oh, yes, with notes and photographs, and we took photographs too, yes.

250 MR. KELBERG:

And, doctor, it doesn't matter whether you're the medical examiner performing the autopsy or you're a privately retained expert such as you are in this case. The need to carefully document exists in either situation, right?

251 DR. BADEN:

That's fair, yes.

252 MR. KELBERG:

Now, doctor, do you have your notes with you?

253 DR. BADEN:

I think I have a copy of notes.

254 (Brief pause.)
255 DR. BADEN:

Yes, sir.

256 MR. KELBERG:

You do? Do you have your note or notes of the examination of Mr. Simpson's hand or hands on June 17th, 1994?

257 DR. BADEN:

Yes.

258 MR. KELBERG:

Could you produce that for me, please?

259 DR. BADEN:

I have--there's a copy I think that you have, but also, it was documented with multiple photographs.

260 MR. KELBERG:

Your Honor, may this document be marked as People's next in order, one page?

261 THE COURT:

Why don't you show it to--

262 MR. KELBERG:

Be glad to.

263 THE COURT:

--Mr. Shapiro.

264 THE CLERK:

580.

265 THE COURT:

580. I'm going to have to get a clerk who talks louder.

266 (Peo's 580 for id = one-page document)
267 MR. SHAPIRO:

Can we just have one moment, your Honor?

268 (Brief pause.)
269 MR. SHAPIRO:

Thank you very much.

270 MR. KELBERG:

Exhibit 580, your Honor?

271 THE COURT:

580.

272 MR. KELBERG:

Then may I approach?

273 THE COURT:

You may.

274 MR. KELBERG:

Now, doctor, this is the--this exhibit is the only documentation in a written form of your observations of both the left and right hands of Mr. Simpson on June 17th; is that correct?

275 DR. BADEN:

The only written material, yes.

276 MR. KELBERG:

Mr. Fairtlough, may I ask you, please, to put this on the elmo.

277 MR. KELBERG:

Now, during--we're looking at the upper portion, and, in fact, what we're looking at now is your written notation concerning the left hand examination; is that correct?

278 DR. BADEN:

Yes. I can't see it very clearly and--

279 MR. KELBERG:

Let me give you--I think I might have another clean copy of that.

280 DR. BADEN:

Thank you.

281 MR. KELBERG:

I'm sorry. I'm not sure that I can find it that quickly.

282 THE COURT:

Why don't you give a copy to Mrs. Robertson. I'll have one of the law clerks make a quick photocopy.

283 MR. KELBERG:

Let me give the doctor mine. It may be marked up a little bit, but it will be a little easier to tell--

284 THE COURT:

Whose is whose?

285 MR. KELBERG:

Whose is whose.

286 DR. BADEN:

Thank you.

287 MR. KELBERG:

Now, doctor, you only reflect in this notation the left hand; is that correct? You make no reference with respect to the condition of the right hand?

288 DR. BADEN:

That's correct.

289 MR. KELBERG:

And, doctor, did you follow the testimony of Dr. Robert Huizenga when he was called by the Defense as a witness earlier in this trial?

290 DR. BADEN:

Uh, some of it. Not all of it.

291 MR. KELBERG:

Have you read his testimony?

292 DR. BADEN:

No.

293 MR. KELBERG:

Have you heard--

294 DR. BADEN:

He was present at the time.

295 MR. KELBERG:

Have you heard his testimony regarding his examination of Mr. Simpson's left and right hands on June 15th and then his presence when you were examining the hand--hands on June 17th? Did you hear his testimony?

296 DR. BADEN:

I recall testimony that he gave relative to what he saw in his office on June 15th.

297 MR. KELBERG:

Now, doctor, do you recall hearing him say in response to a question I asked that he found on the left hand three or four cuts, depending on how you want to define the cuts, because there's one that had an interruption which, if it was all part of one process, would be one cut rather than two? Do you recall that?

298 DR. BADEN:

I believe so, yes.

299 MR. KELBERG:

Do you recall him also saying that he observed seven abrasions to the left hand?

300 DR. BADEN:

I recall some of that type of testimony. I'm not specific that there were additional injuries that he saw that I had not seen.

301 MR. KELBERG:

Doctor, let me just briefly refer you to some testimony that was given by Dr. Huizenga, referring to page 37267 of the transcript, line 18 through 20. "How many separate abrasions did you identify ?"

302 THE COURT:

Just a second. Mr. Blasier, do you have that available?

303 MR. BLASIER:

I do.

304 THE COURT:

All right. Mr. Blasier has it available.

305 MR. KELBERG:

"Question: How many separate abrasions did--"

306 MR. SHAPIRO:

Can we just have a moment?

307 THE COURT:

Hold on, hold on, hold on.

308 MR. BLASIER:

What line, please?

309 MR. KELBERG:

Starting on line 18.

310 MR. SHAPIRO:

Your Honor, there will be an objection to this line of questioning. It's beyond the scope of direct examination.

311 THE COURT:

Overruled.

312 MR. KELBERG:

Doctor, did you hear this testimony from Dr. Huizenga? "Question: How many separate abrasions did you identify? "Answer: Seven. "Question: And did you also count the number of cuts to his left hand? "Answer: Yes, I did. "Question: How many did you identify? "Answer: Three cuts, one of which on the fourth finger had both an A and B portion. "Question: That's the right--" I'm sorry. "That's the ring finger, correct? "Answer: Correct." Did you hear that testimony before, doctor?

313 DR. BADEN:

I think so.

314 MR. KELBERG:

Doctor, how many abrasions did you identify in this note that you made of your examination of Mr. Simpson's left hand on June 17th?

315 DR. BADEN:

I did not see those abrasions on the 17th, which is two days later, and I did photograph Mr. Simpson's hands with Dr. Lee and I don't--to document the injuries, and I don't recall there being abrasions at that time.

316 MR. KELBERG:

May I approach, your Honor?

317 DR. BADEN:

Which is two days later. So they could have healed.

318 THE COURT:

Yes.

319 MR. SHAPIRO:

Your Honor, may I see what he's going to show?

320 MR. KELBERG:

These are the exhibits that have previously been marked.

321 MR. SHAPIRO:

Are there different rules for this, your Honor?

322 THE COURT:

These matters have already been marked. Do you need to see these? Let's bring them over--

323 MR. SHAPIRO:

I would like to see what he's referring to.

324 THE COURT:

All right.

325 MR. SHAPIRO:

As a courtesy.

326 THE COURT:

That is a common courtesy. You're right. Mr. Kelberg.

327 MR. KELBERG:

I'll be glad to. I'm going to show the doctor in the 518 series.

328 THE COURT:

All right. Mr. Shapiro, do you want to approach and take a look at these as well, the ones that Dr. Baden has in his possession at this moment?

329 MR. SHAPIRO:

Yes, your Honor. Can I look at these first?

330 THE COURT:

Take your pick. (Brief pause.)

331 MR. SHAPIRO:

Thank you very much.

332 THE COURT:

All right. Proceed.

333 MR. KELBERG:

Thank you, your Honor.

334 MR. KELBERG:

Doctor, let me show you if I could, please, first exhibit 518-E. Have you seen that photograph before?

335 THE COURT:

Doctor, you can take it out of the holder if you want.

336 DR. BADEN:

Thank you, sir. Umm, I believe I have, but I'm not sure what day it was taken.

337 MR. KELBERG:

Let me show you 518-C. Have you seen that photograph before?

338 DR. BADEN:

Yes. But, again, I--this wasn't taken by me.

339 MR. KELBERG:

Doctor, do you see in this 518-C that there's a blue ruler?

340 DR. BADEN:

Yes. It's--I believe it's supposed to be a gray ruler that turns out blue in this.

341 MR. KELBERG:

Doctor, did Dr. Lee or you in the course of having photographs taken have a ruler placed in the photographs?

342 DR. BADEN:

Umm, in some of the photographs, umm, we have rulers, yes.

343 MR. KELBERG:

And if Dr. Huizenga did not use a ruler when he was having photographs taken at his office on the 15th, would that indicate to you that if the photo has a ruler in it, that it is a photo taken on the 17th?

344 DR. BADEN:

I'm not sure. I'm not sure. We only have 17 percent gray rulers. So that doesn't look--it has the form of a ruler that Dr. Lee or I would have used, but not necessarily--but not the right color.

345 MR. KELBERG:

I'm going to ask Mr. Fairtlough to put 518-C on the elmo.

346 MR. SHAPIRO:

Objection. No foundation.

347 THE COURT:

He said he's seen the photo, counsel.

348 MR. KELBERG:

Doctor, I want to invite your attention--if Mr. Fairtlough can zoom in on the left thumb area, please. Doctor, do you see the area that is highlighted now by the close-up of this photograph?

349 DR. BADEN:

Yes.

350 MR. KELBERG:

Do you document that--what appears to be an injury below the thumbnail?

351 DR. BADEN:

I don't recall seeing that. Uh, and I--I do not believe this is a photograph taken on the 17th.

352 MR. KELBERG:

Doctor, then if it was taken on the 15th, your testimony is that that injury--you do believe that that's an injury; do you not?

353 DR. BADEN:

Yes.

354 MR. KELBERG:

Would you call it an abrasion?

355 DR. BADEN:

That's fair, yes.

356 MR. KELBERG:

Is it your testimony that it healed between its state as seen in this photo, if the photo was taken on June 15th, and when you saw Mr. Simpson's hand on the 17th?

357 DR. BADEN:

Yes.

358 MR. SHAPIRO:

Objection. Calls for speculation.

359 DR. BADEN:

Oh, sorry.

360 THE COURT:

Overruled.

361 MR. KELBERG:

Now, doctor, is it your testimony then that you saw none of the seven abrasions that Dr. Huizenga said were present on the left hand along with the cuts?

362 DR. BADEN:

I did not--I do not recall seeing any of those abrasions.

KEY QUOTE
363 MR. KELBERG:

And you don't document any of them on your note, do you, sir?

364 DR. BADEN:

No. I don't have it in my notes and I would have to check photographs taken on the 17th that were further documentation.

365 (Brief pause.)
366 MR. KELBERG:

And now let me ask that 518-E be placed on the elmo and ask Mr. Fairtlough--

367 MR. KELBERG:

Looking now more below the fingers, back of the hand--

368 MR. SHAPIRO:

Your Honor, I don't believe there's a foundation for this photograph.

369 MR. KELBERG:

There was a stipulation that these photos were taken on the 15th and the 17th. Defense counsel offered it and I accepted it.

370 THE COURT:

Correct.

371 MR. SHAPIRO:

Yes, but that's not a foundation that this doctor has seen these on the 17th.

372 THE COURT:

Ask him.

373 MR. KELBERG:

Doctor, what we are looking at on this photograph, did you see this area that's highlighted now when you examined Mr. Simpson on the 17th?

374 DR. BADEN:

No.

375 MR. KELBERG:

And do those appear to be abrasions?

376 MR. SHAPIRO:

Well, your Honor, no foundation--

377 THE COURT:

Overruled.

378 MR. SHAPIRO:

--to ask the question.

379 THE COURT:

Overruled.

380 DR. BADEN:

May I see the photograph? It's a little blurry here.

381 MR. KELBERG:

Sure.

382 MR. KELBERG:

May I take it, Mr. Fairtlough?

383 DR. BADEN:

Yeah. There appears to be a healing--some kind of healing mark that you were referring to--

384 MR. KELBERG:

And if--

385 DR. BADEN:

--on the back of the hand. It's sort of--yeah. I'm sorry.

386 MR. KELBERG:

And if Dr. Huizenga referred to it as an abrasion, would you trust his judgment on that?

387 DR. BADEN:

Umm, yeah. Yes.

388 MR. KELBERG:

Now, did you see abrasions along the left wrist of Mr. Simpson when you examined him on the 17th?

389 DR. BADEN:

I would have to look at the photographs taken on the 17th because I have a notation in the sheet that you gave me and that you retrieved of some--something on the wrist, in the area of the wrist and I just don't recall.

390 MR. KELBERG:

First of all, doctor, let me just show you one of the Defense photographs, which is 1249, and ask you if that appears to be a photograph taken on the 17th when you were present or at some other time and location.

391 DR. BADEN:

It appears that this photograph, the top that you're showing to me, 1249, was taken at the time that I was examining Mr. Simpson on the 17th.

392 (Brief pause.)
393 MR. KELBERG:

Your Honor, I'm looking for 518-B. I don't know if--Miss Clark might have it.

394 MR. KELBERG:

Let me show you what's 516. I'm sorry. It's 516. Does that also appear to be a photograph that was taken on the 17th, doctor?

395 DR. BADEN:

I think so. I think so from the surroundings.

396 MR. KELBERG:

Now, doctor, do you see on the lateral side of the wrist what would be the ulnar side I believe, do you see what appear--

397 DR. BADEN:

May I see the notes that you took back? That will help me.

398 MR. KELBERG:

Sure.

399 THE COURT:

Let's bring back 580.

400 MR. KELBERG:

And I'm giving the doctor back my copy because I think we still have it for the elmo. I'd like to put it back on the elmo, please.

401 DR. BADEN:

What I refer to in my notes is, on the medial aspect of the wrist--and when I say "Medial aspect," it's the ul--it's the pinky side of the wrist, the side into the body in the anton position. I have here a half inch in front of the wrist and 3/8 inch back of the wrist, would be the--what appear to be abrasions that are shown on this photograph that you showed me.

402 MR. KELBERG:

You don't list them as abrasions, do you, doctor?

403 DR. BADEN:

Umm, it says, "Wrist, medial aspect, half inch distal to wrist, 3/8 inch proximal to wrist," and I will have the original of this waiting for me at the hotel when I come back to see if anything was left out. But in my opinion, I was referring to the abrasions.

404 MR. KELBERG:

My question is, sir, did you use the word "Abrasion"--

405 DR. BADEN:

It's not here on this Xerox copy.

406 MR. KELBERG:

Now, sir, did you appear on NBC Dateline on June 23rd, 1994, regarding your observations of that hand of Mr. Simpson's, the left hand?

407 MR. SHAPIRO:

Your Honor, if there's going to be a document here, can we have an opportunity to look at it, please?

408 THE COURT:

Yes.

409 (Brief pause.)
410 THE COURT:

Is this a Burrell's transcript?

411 MR. KELBERG:

I'm afraid I'm not familiar with the company, your Honor. Through our media relations, I've been provided with this.

412 MR. SHAPIRO:

Your Honor, it's going to take me some time. This appears to be a whole segment.

413 THE COURT:

What--are you just focusing on one particular portion?

414 MR. KELBERG:

Absolutely. I showed Mr. Shapiro which area I was focusing on.

415 MR. SHAPIRO:

Just to make sure it's in proper context, may I just have a few moments? I don't want to interrupt.

416 THE COURT:

Sure. Take your time.

417 (Brief pause.)
418 MR. COCHRAN:

Your Honor, may we approach?

419 THE COURT:

Yes, with the court reporter, please.

Temperature

tense

Key Quotes (5)

Dr. Michael Baden
But if all we say is it's possible that it happened by a bushy-haired stranger whose right-handed from behind, yes, but it's also equally consistent with a bald-headed midget from the front who is left-handed.
Baden's colorful attempt to explain the limits of 'consistent with' testimony, which Kelberg then used to highlight Baden's own use of imprecise language on direct
Lance A. Ito
We will be here through tomorrow if we keep up like this. Let's move along, all right? Let's get past the semantics.
Judge expressing visible frustration with the pace of the semantic battle over 'possibilities' vs. 'reasonable medical certainty'
Dr. Michael Baden
That's not so. In fact, if you called me, Mr. Kelberg, I would have been glad to talk to you. As we once did before.
Baden attempting to appear cooperative while deflecting Kelberg's suggestion that not writing a report was a strategic move to avoid giving the prosecution advance notice
Brian Kelberg
Have you ever done anything like that? ... 'I didn't do the autopsy. Whatever I have in the way of an opinion from these materials would be pure speculation. Here's your money back'?
Kelberg turning Baden's own criticism of Dr. Lakshmanan's methods back against him — Baden had rendered many opinions in cases where he never performed the autopsy
Dr. Michael Baden
I do not recall seeing any of those abrasions.
Baden admitting he documented none of the seven abrasions Huizenga catalogued on Simpson's left hand two days earlier, undermining his credibility as a meticulous expert

Evidence (6)

People's 580
Baden's single-page handwritten notes from his examination of OJ Simpson's left hand on June 17, 1994
introduced and examined to highlight absence of documented abrasions
People's 518-C
Photograph of Simpson's left hand showing abrasion below thumbnail and blue/gray ruler
displayed on ELMO; Baden disputes it was taken on the 17th
People's 518-E
Photograph of back of Simpson's left hand showing healing marks
displayed on ELMO; Baden says he did not observe these injuries on June 17th
Defense 1249
Photograph of Simpson's hand taken during June 17th examination
shown to Baden to establish timeline; Baden confirms it was taken during his examination
People's 516
Photograph of Simpson's wrist area, likely taken June 17th
used to question Baden about wrist abrasions he noted but did not label as such
Informal
NBC Dateline transcript from June 23, 1994 — Baden's on-air statements about Simpson's hand injuries
being introduced at end of session; examination cut short before substantive questioning

Notable Exchanges (4)

Brian KelbergDr. Michael Baden
Kelberg methodically built to the contradiction that Baden had criticized Lakshmanan for testifying to 'possibilities,' but Baden himself used 'indicative' to mean only 50%+ confidence on the Goldman shoe cut — far below his stated 95% threshold for 'reasonable medical certainty'
strategic
Brian KelbergDr. Michael Baden
Kelberg established that Baden earns 3-4x more from privately retained cases than from his New York State Police salary ($39-40K), and that the majority of his private practice involves reviewing cases where he did not perform the autopsy — directly undermining his implicit criticism of Lakshmanan's work
revealing
Brian KelbergDr. Michael Baden
Kelberg read Huizenga's prior testimony aloud — seven abrasions and three cuts on Simpson's left hand — then showed that Baden's single-page note documented none of the abrasions, with Baden falling back on the explanation that they 'could have healed' in two days
devastating
Lance A. ItoBrian Kelberg
Judge interrupted multiple times urging Kelberg to speed past the semantics debate on 'possibilities' vs. 'reasonable medical certainty,' expressing visible impatience with the pace
procedural

Light Moments (2)

Dr. Michael Baden
When Kelberg cited Baden's exact salary figure of $39-40K, Baden replied: 'You're very good. Yes.' — acknowledging Kelberg had done his homework from prior Baden testimony
Lance A. Ito
Judge Ito deadpanned about needing 'a clerk who talks louder' after the clerk quietly announced exhibit number 580

Credibility Attacks (4)

⚔ Dr. Michael Baden
prior inconsistent conduct / hypocrisy
Kelberg showed that Baden criticized Lakshmanan for using 'possibilities' language, then demonstrated Baden himself used 'indicative' to mean only 50%+ confidence — well below his stated 95% threshold for reasonable medical certainty
⚔ Dr. Michael Baden
omission / incomplete documentation
Baden's only written documentation of Simpson's June 17th hand examination was a single page that mentioned no abrasions, contrasted with Huizenga's detailed finding of seven abrasions two days earlier
⚔ Dr. Michael Baden
financial bias / hired-gun framing
Kelberg established Baden earns 3-4x his public salary from privately retained cases, spending more than half his time on them, and routinely renders opinions in cases where he never performed the autopsy
⚔ Dr. Michael Baden
failure to disclose / strategic omission
Baden prepared no written report in this case, contrasted with his practice in other retained cases (Boggs, Belushi); Kelberg implied this was to avoid giving the prosecution advance notice of his views

Witness Demeanor

(Brief pause.) — multiple instances during document review and photograph examination
Baden repeatedly hedging with 'I don't recall' and 'I would have to check the photographs' when pressed on specific findings
Baden saying 'Oh, sorry' when inadvertently answering before an objection was ruled on

Objections

18 objections (7 sustained, 7 overruled)
Proceeding 7260 • 419 utterances • Defense witness
Criminal Trial
Department 103
⚖️ Start
📂 AUG 10, 1995 📄 Cross-examination of Dr. Micha
AUG 10, 1995 KRT DvH TD